Fred Douglas Moore II v. the State of TexasFred Douglas Moore II v. the State of Texas
Fred Douglas Moore II appeals his conviction for burglary. In two issues, he challenges the sufficiency of the evidence and the trial court‘s denial of a lesser included offense instruction. We affirm.
BACKGROUND
Appellant was indicted for the offense of burglary, alleged to have occurred on March 12, 2025. The indictment alleged that he, “with intent to commit an assault against Jamesia Butler, enter[ed] a habitation, without the effective consent of Jamesia Butler, the owner thereof[.]” The indictment also contained two enhancement paragraphs, which alleged that Appellant was previously convicted of the felony offenses of deadly conduct and robbery. Appellant pleaded “not guilty” and this matter proceeded to a jury trial.
On the afternoon of March 12, Butler called 911 to report that her ex-boyfriend, Appellant, came to her mother‘s house (located on Eagle Street in Tyler, Texas), where Butler resided. Officer Elliott Patterson of the Tyler Police Department testified that he was dispatched to the Eagle Street residence pursuant to Butler‘s 911 call. Upon arriving, he noted that Butler was visibly upset, appeared to have been crying, and had injuries to her face, including a swollen eye and blood coming from her left ear. Butler informed him that Appellant pulled up in front of
On March 12, Butler told Patterson that she wanted to pursue charges against Appellant, but when Patterson spoke to her again an unspecified time later, she stated that she no longer wanted to pursue charges. Because Patterson believed that probable cause existed that Appellant committed burglary of a habitation, he proceeded with obtaining a warrant for Appellant‘s arrest.
Butler testified that at the time of trial, she was in a dating relationship with Appellant; she denied that she and Appellant were broken up or “on a break” on March 12. On that day, she invited Appellant over to the house by phone; the two intended to visit the grave of Appellant‘s deceased son. When Appellant arrived, Butler was sitting on the porch “just hanging out.” She claimed that she accused Appellant of cheating on her and he reacted as though his feelings were hurt, but neither of them raised their voices. She and Appellant went inside the house together, still arguing. At some point Appellant hugged Butler from behind to calm her down, which caused her to call Jones into the room. During her testimony, Butler frequently claimed that she did not remember her statements to Patterson about the incident. However, during the State‘s examination, the following dialogue took place:
State‘s Counsel: Do you remember telling Officer Patterson that [Appellant] forced his way and kicked his way in through the door?
Butler: I do remember that.
State‘s Counsel: You do remember that? Okay. Do you remember – well, let me ask you this: At any point inside when y‘all were inside the home, other than him just hugging you like to calm you down, did your boyfriend or whatever, Fred Moore, the defendant in this case, punch you in the face?
…
Butler: No.
Butler: (No verbal response.)
State‘s Counsel: Ms. Butler?
Court: Ms. Butler, you need to answer the question, please, ma‘am.
Butler: No.
State‘s Counsel: Okay. I can‘t see you. You‘re putting your head down.
Butler: I‘m tired of being here. I‘m ready to go.
State‘s Counsel: I understand, but we‘ve got to get through this. You understand why this is important, right?
Butler: Yes. I already done wrote two nonprosecution affidavits. I told y‘all that… I did not want to be here today.
State‘s Counsel: [W]e‘ll get to that in a second. You don‘t want to be here. I think everyone in the room can see that. But Fred Moore never punched you in the face that day at your mama‘s house … here in Tyler, Texas, Smith County?
Butler: I don‘t remember.
State‘s Counsel: Okay. Do you remember five seconds ago saying that he never did?
Butler: Yeah, but I don‘t remember though.
State‘s Counsel: Okay. How is it that you don‘t remember? Is it because it happened and you just don‘t want to say it?
Butler: Yeah.
State‘s Counsel: Yeah?
Butler: (Nodded affirmatively.)
State‘s Counsel: Look, we understand that you don‘t want to be here, that you care about Mr. Moore. We understand that. We understand that you asked us to drop the charges. Like you said, you filled out two nonprosecution affidavits, right?
Butler: Yes.
State‘s Counsel: Okay. So he did punch you in the face that day?
Butler: Yes.
State‘s Counsel: How many times did he punch you in the face?
Butler: Just once.
Butler admitted that her earlier statement was untrue and that she called her brother into the room because Appellant punched her. Following the lunch break, Butler again altered her testimony and stated that Appellant actually punched her “two to three times.” She maintained that she invited Appellant over that day, he did not force his way into the house, and the dent on the front door was always there. She acknowledged that Appellant asked her to write the affidavits of non-prosecution and asked her not to come to court for the trial.
Jones testified that on March 12, he was at home in his room. Jones claimed he was asleep when Appellant arrived, did not see whether he forced his way into the house, and did not remember whether the indention on the front door was there before March 12. He heard Butler shout for help, so he ran to assist her. Jones stated that he saw Appellant swing his arm toward
Whitney testified that on March 12, she was doing yard work for a neighbor on Eagle Street. From the front lawn, she had a fairly good view of Butler‘s mother‘s house, although some bushes partially obstructed the porch. She witnessed Appellant drive up in a white sedan, exit the vehicle, and begin screaming at a woman seated on the porch, who began screaming back. The woman went inside the house and shut the door, after which Appellant “body slam[med]” the door with his shoulder and gained entry. Less than five minutes later, Appellant exited the house, got back into his vehicle, and drove away.
Sergeant Christopher Saxon, employed by the Smith County Sheriff‘s Office, testified that he worked in the compliance division at the Smith County jail. He stated that each inmate received a unique account number to access commissary and telephone funding, and that inmates sometimes used phone funding as a currency or used another person‘s phone account without consent. When Saxon investigated such instances, he often looked at the number that was called, because inmates usually call the same numbers repeatedly. Saxon could also identify one inmate‘s voice from another on the recorded calls. Saxon testified that he reviewed Appellant‘s jail phone calls in connection with this case. He noted that Appellant placed over 3,000 calls to Butler‘s phone number while incarcerated.
On September 18, 2025, Appellant called his mother and stated that he instructed “JJ” to tell her brother that if he testified against Appellant, that would be “snitching.” On September 28, 2025, an account belonging to a different inmate placed a call to Butler‘s phone number, but Saxon recognized the voice as Appellant‘s. Appellant told Butler that he was using a different account so that he could talk to her “straight,” chastised her for her statements in reporting the incident, and asked her not to appear in court for the trial, because he believed that was the only way he would “get out” of jail.
Finally, Appellant testified that on March 12, he and Butler planned to visit his son‘s grave. When he arrived at Butler‘s mother‘s house, Butler was sitting on the porch and looking at her cell phone. Butler informed Appellant that she no longer wanted to go to the cemetery with him because she believed he was cheating on her, and the two began arguing verbally. During the argument, Butler and Appellant “went up in the house.” Appellant stated that he hit
At the jury charge conference, Appellant‘s counsel requested an instruction on assault as a lesser-included offense. The trial court denied this request.
The jury found Appellant “guilty” and imposed a sentence of fifty years’ imprisonment. This appeal followed.
SUFFICIENCY OF THE EVIDENCE
In his first issue, Appellant argues that the evidence was insufficient to show that he entered the residence without Butler‘s consent.
Standard of Review
The Jackson v. Virginia legal sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the state is required to prove beyond a reasonable doubt. 443 U.S. 307, 315–16, 99 S. Ct. 2781, 2786–87, 61 L. Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Legal sufficiency is the constitutional minimum required by the
The trier of fact is the sole judge of the credibility of the witnesses and can believe all, some, or none of the testimony presented, and a reviewing court affords almost complete deference to a jury‘s decision when that decision is based upon an evaluation of credibility.
The sufficiency of the evidence is measured against the offense(s) as defined by a hypothetically correct jury charge. See Delarosa v. State, 677 S.W.3d 668, 673 (Tex. Crim. App. 2023). A hypothetically correct jury charge “accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State‘s burden of proof or unnecessarily restrict the State‘s theories of liability, and adequately describes the particular offense for which the defendant is tried.” Id.
Applicable Law
As is relevant in this case, a person commits the offense of burglary if, without the effective consent of the owner, he enters a building or habitation not open to the public with intent to commit a felony, theft, or an assault. See
The Penal Code imparts a specialized and technical meaning to the word “owner,” defining it as a person who (1) has title to the property, (2) possession of the property, or (3) a greater right to possession of the property than the actor. Morgan v. State, 501 S.W.3d 84, 91 (Tex. Crim. App. 2016).
Analysis
Appellant does not dispute that in this case, Butler was an “owner” as to the house on Eagle Street. However, he asserts that the evidence adduced at trial did not establish that he lacked Butler‘s consent to enter the house at the time of the March 12 incident.
To the extent Appellant contends that Butler‘s consent to his entering her mother‘s house on previous occasions extended to the occurrence on March 12, he cites no legal authority in support of this proposition. Texas courts have affirmed convictions for burglary where the offender previously had access to the residence, but said access was revoked at the time of the offense. See, e.g., Morgan, 501 S.W.3d at 92; Rangel v. State, 179 S.W.3d 64, 69 (Tex. App.—San Antonio 2005, pet. ref‘d); Turner v. State, No. 13-18-00579-CR, 2019 WL 4551310, at *5 (Tex. App.—Corpus Christi–Edinburg Sept. 19, 2019, no pet.) (mem. op., not designated for publication); Butler v. State, No. 07-09-0070-CR, 2009 WL 4042121, at *4 (Tex. App.—Amarillo Nov. 23, 2009, pet. ref‘d) (mem. op., not designated for publication).
Further, a jury, as the sole judge of credibility, may accept one version of the facts and reject another, and may reject any part of a witness‘s testimony. Braughton v. State, 522 S.W.3d 714, 726 (Tex. App.—Houston [1st Dist.] 2017), aff‘d, 569 S.W.3d 592 (Tex. Crim. App. 2018). The jury was entitled to believe that Butler‘s statement to Patterson on the day of the incident, that Appellant forced the front door open against her will, was truthful, and disbelieve her testimony at trial that Appellant had her permission to enter the house. See Rangel, 179 S.W.3d at 69 (holding that jury was free to believe complainant‘s statement to police on date of offense that defendant did not have consent to enter home on day of burglary and disregard her trial testimony that defendant “always” had permission to enter).
We overrule Appellant‘s first issue.
LESSER-INCLUDED OFFENSE INSTRUCTION
In his second issue, Appellant contends that the trial court abused its discretion by refusing his request for a jury instruction on the lesser-included offense of assault.
Standard of Review and Applicable Law
We review a trial court‘s refusal to submit a lesser-included offense instruction in the jury charge for abuse of discretion. Chavez v. State, 666 S.W.3d 772, 776 (Tex. Crim. App. 2023). In reviewing a jury charge issue, an appellate court‘s first duty is to determine whether error exists; if so, we then evaluate whether sufficient harm resulted from the error to require reversal. Arteaga v. State, 521 S.W.3d 329, 333 (Tex. Crim. App. 2017). For a defendant to be entitled to an instruction on a lesser-included offense, a two-pronged test must be satisfied. Id.; Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994). First, the elements of the lesser-included offense must be “established by proof of the same or less than all the facts required to establish the commission of the offense charged[.]” Hall v. State, 225 S.W.3d 524, 536 (Tex. Crim. App. 2007) (quoting
Second, the record must contain some evidence that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser-included offense. Id.; Bignall, 887 S.W.2d at 23. The evidence must establish the lesser-included offense as a valid, rational alternative to the charged offense. Hall, 225 S.W.3d at 536. In other words, the second prong of the test requires some evidence that the defendant is guilty only of the lesser offense. Cavazos v. State, 382 S.W.3d 377, 385 (Tex. Crim. App. 2012); Royster v. State, 622 S.W.2d 442, 446-47 (Tex. Crim. App. [Panel Op.] 1981) (op. on reh‘g). The evidence must negate or rebut an
Section 22.01 defines assault as (1) intentionally, knowingly, or recklessly causing bodily injury to another, including the person‘s spouse; (2) intentionally or knowingly threatening another with imminent bodily injury, including the person‘s spouse; or (3) intentionally or knowingly causing physical contact with another person when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.
Analysis
As discussed above, Appellant was indicted on burglary allegations consistent with
While it may be true that when the State proves an … assault, the proof shows an intent to commit the assault, under
Article 37.09(1) facts showing a completed assault are not “required” to prove the intent to commit such assault. Intent to commit requires less proof. While it certainly may be used to show that intent, it is not legally required because intent to commit can be established by facts showing something less than commission of the offense.
Jacob, 892 S.W.2d at 909; see also Palacio v. State, 580 S.W.3d 447, 454 (Tex. App.—Houston [14th Dist.] 2019, pet. ref‘d) (holding that “[t]he burglary indictment, tracking the language of
Because an assault “is not established by proof of the same or less than all the facts required to establish the commission” of burglary with an intent to commit assault, the first prong of the lesser-included offense analysis is not satisfied. Hall, 225 S.W.3d at 536;
DISPOSITION
Having overruled each of Appellant‘s two issues, we affirm the judgment of the trial court.
JAMES T. WORTHEN
Chief Justice
Opinion delivered August 31, 2026.
Panel consisted of Worthen, C.J., Hoyle, J., and Davis, J.
(DO NOT PUBLISH)
JUDGMENT
THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED, and DECREED that the judgment of the court below be in all things affirmed, and that this decision be certified to the court below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Davis, J.