Peggy Ruth Boney v. State ( 2003 )

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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-03-00120-CR

Peggy Ruth Boney, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT

NO. CR20,572, HONORABLE EDWARD P. MAGRE, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

After a bench trial, Peggy Ruth Boney was convicted of the offense of burglary of a habitation. See Tex. Pen. Code Ann. § 30.02 (West 2003). In two points of error, appellant contends that the evidence is legally and factually insufficient to support the conviction. Because the evidence is sufficient, we overrule the points of error and affirm the judgment of conviction.

FACTS

On the afternoon of May 19, 2002, appellant and Markam Noel Kennedy drove by the home of Marshall Dawson, an owner of a tire company in Rockdale, and tried to pawn some items. Dawson had changed the tires on appellant's car and recognized appellant as well as her car. Dawson explained that he was not interested in the "what-nots," but "I might hold a V.C.R. or T.V. or something of that nature, a one piece item instead of several pieces." Appellant and Kennedy left and returned a few minutes later with a twenty-seven-inch television. Dawson paid them forty dollars for the television.

Meanwhile, after being gone for less than an hour in the late afternoon, Larry Joe Jackson returned to his home in Rockdale to find his television missing. As he arrived at the house, he observed appellant and Kennedy, both of whom he had known for a few years, pulling out of his driveway in appellant's car. At trial, Jackson testified that the pair told him, "We'll talk to you in a little bit." When Jackson discovered his television was missing, he reported it to the police and told Kennedy that the police wanted to talk to him.

The next day, after learning the police had been called, Kennedy told Jackson he would "have the T.V. tomorrow." After retrieving the television the next day from Dawson, Kennedy returned it to Jackson. Jackson complained that the remote control was missing. Kennedy responded that he had "never seen no remote control on this T.V."

At a bench trial, Kennedy testified, denying that he and appellant had stolen the television. Instead, Kennedy claimed that he bought the television, which he thought was a twenty-five-inch size, and some other items from "a man going out of town." Kennedy asserted that appellant's only involvement was to give him a ride to his house to pick up the television and return it to Dawson. He testified that he learned Jackson's television had been stolen when he and appellant went to Jackson's house to get him to help move some furniture. Kennedy acknowledged that he left before the police arrived, and, to avoid talking to the police, he retrieved the "other" television from Dawson and returned it to Jackson.

Jackson testified that he had attempted to have the charges dropped against appellant and Kennedy. He acknowledged that appellant paid him money to execute a written statement not prepared by him, seeking dismissal of the charges.

ANALYSIS

Standard of Review

When both the legal and factual sufficiency of the evidence are challenged, we must first determine whether the evidence is legally sufficient to support the judgment. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). When reviewing legal sufficiency, we view the evidence in the light most favorable to the judgment and determine whether a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000). We do not examine the fact finder's weighing of the evidence, but merely determine whether there is evidence supporting the judgment. Clewis, 922 S.W.2d at 132 n.10.

In contrast to legal sufficiency, a factual sufficiency review requires the court to view the evidence in a neutral light. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (citing Clewis, 922 S.W.2d at 134). We conduct such a review by examining the evidence that tends to prove the existence of an elemental fact in dispute and compare it with evidence tending to disprove that fact. Id. Under a factual sufficiency review, a court will set aside a judgment only if the proof of guilt is so obviously weak or greatly outweighed by the evidence to render the finding of guilt clearly wrong and unjust. Zuliani v. State, 97 S.W.3d 589, 593 (Tex. Crim. App. 2003).

Burglary of a Habitation

To support her contention that the evidence presented at trial is both legally and factually insufficient to support her conviction of burglary of a habitation, appellant argues that the State failed to prove certain elements of burglary, to wit, that the burglary occurred, that appellant entered Jackson's habitation without his consent and with intent to commit theft, and that the habitation was not open to the public. Specifically, appellant urges that the proof was insufficient to show that she was the individual who caused the theft by entry into the habitation. The indictment alleged that appellant entered a habitation with intent to commit theft, without the effective consent of the complainant. See Tex. Pen. Code Ann. § 30.02(a)(1).

The State can prove appellant's guilt by circumstantial evidence. Gilbertson v. State, 563 S.W.2d 606, 608 (Tex. Crim. App. 1978). In cases in which there is merely circumstantial evidence, a conviction for burglary may rest upon the defendant having been "found in possession of recently stolen property without offering an explanation inconsistent with guilt when first called upon directly or circumstantially to do so." Chavez v. State, 843 S.W.2d 586, 587 (Tex. Crim. App. 1992); see also Watson v. State, 671 S.W.2d 663, 665 (Tex. App.--Houston [1st Dist.] 1984, pet. ref'd); Medrano v. State, 658 S.W.2d 787, 790 (Tex. App.--Houston [1st Dist.] 1983, pet. ref'd). Reliance on this inference, however, is necessary only when there is no direct evidence placing the defendant at the crime scene. See Chavez, 843 S.W.2d at 586-87. Because this case encompasses direct evidence placing appellant at the crime scene, it is not necessary to show that she was found possessing and consciously asserting a right to stolen property.

In Medrano, a witness saw the defendant carrying a rifle wrapped in a sheet while leaving the yard of the complainant's house. 658 S.W.2d at 789. A few minutes later, a neighbor discovered that complainant's house had been burglarized. Id. The complainant later discovered that his rifle and sheet were missing. Because the defendant was seen within a few feet of the damaged entry with possession of the stolen goods immediately after the burglary, and the property matched the description of the stolen goods, the court found the evidence was sufficient to support the jury's finding. Id. at 790-91.

In Watson, an eyewitness saw a man of defendant's general build leave a service station, which had been burglarized, carrying two white battery boxes. 671 S.W.2d at 664. The owner of the store testified that two batteries were missing after the incident. Id. The court found this evidence sufficient to support the verdict. Id. at 665.

In this case, the complainant saw appellant pulling out of his driveway in her car. Although he did not see a television in the car, the television was missing from his home. Appellant and another individual were then found in possession of the television shortly after leaving the complainant's home. When they were advised by Dawson that he would lend them some money for a VCR or television, they returned with a television of the same description as the one stolen from the complainant. That Kennedy returned a television as described by the complainant when he learned the police had been called and engaged in a conversation about whether the television ever had a remote control is evidence that the property recovered from Dawson was the same property as that taken from the complainant's home. This evidence is sufficient to support appellant's conviction for burglary. See Thompson v. State, 563 S.W.2d 247, 250 (Tex. Crim. App. 1978) (finding evidence sufficient when, during limited time when entry could have been made, defendant was observed walking away from scene carrying a small case, defendant fled from scene, and three items taken in the burglary were found in a field near where defendant seen hiding).

Because appellant was not present when Kennedy returned the television, and Dawson handed the money for the television to Kennedy and not to her, appellant urges that the evidence establishes only that she gave Kennedy a ride in her car and the evidence is insufficient to establish her guilt. The State responds that appellant is guilty as a party. In a bench trial, the trial court may use the law of parties if the evidence supports that theory despite the absence of such allegation in the indictment. See Diaz v. State, 902 S.W.2d 149, 151 (Tex. App.--Houston [1st Dist.] 1995, no pet.). Under the law of parties, a person is criminally responsible for an offense committed by another if, acting with the intent to promote or assist in the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the person to commit the offense. See Tex. Pen. Code Ann. § 7.02(a)(2) (West 2003). To determine whether a person acted as a party to an offense, the trier of fact may look to events occurring before, during, and after the offense, and may rely on actions that show an understanding and common design to engage in an act. See Burdine v. State, 719 S.W.2d 309, 315 (Tex. Crim. App. 1986). Thus, applying the theory of parties, a person can be guilty of burglary even though he did not personally enter the burglarized premises if he acted together with another in the commission of the offense. See Clark v. State, 543 S.W.2d 125, 127 (Tex. Crim. App. 1976); Wilkerson v. State, 874 S.W.2d 127, 129 (Tex. App.--Houston [14th Dist.] 1994, pet. ref'd).

Here, even if the trial court believed Jackson's equivocal testimony that Kennedy said, "Here's you a T.V." instead of "Here's your television" as Jackson first reported to the police, the evidence supports appellant's guilt as a party. Jackson testified that the television was taken without his consent. At the least, appellant helped Kennedy transport the stolen property from Jackson's house to Dawson to pawn the item. Dawson told appellant, the driver of the car, along with Kennedy, that he would make a loan on a television. The testimony at trial, while thin, established that appellant was a participant in the transaction. In addition, the complainant testified that appellant paid him to sign a prepared statement to get the charges against her dropped.

Viewing the evidence in the light most favorable to the judgment, a reasonable fact finder could have found the elements of burglary of a habitation beyond a reasonable doubt. Moreover, the fact finder's judgment of conviction is not clearly wrong or unjust or against the great weight and preponderance of the evidence.

CONCLUSION

Accordingly, finding the evidence is both legally and factually sufficient to support the appellant's burglary conviction, we overrule both points of error and affirm the judgment of conviction.

__________________________________________

Jan P. Patterson, Justice

Before Justices Kidd, B. A. Smith and Patterson

Affirmed

Filed: July 24, 2003

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