Ronald McEarl Williams v. State ( 1993 )

Williams-RM v. State

IN THE

TENTH COURT OF APPEALS

No. 10-92-036-CR

        RONALD McEARL WILLIAMS,

                                                                                               Appellant

        v.

        THE STATE OF TEXAS,

                                                                                               Appellee

From the 272nd District Court

Brazos County, Texas

Trial Court # 20,802-272

O P I N I O N

          Appellant Williams appeals his conviction by a jury on two enhanced counts of burglary of a motor vehicle enhanced. The State sought to prove that on September 11, 1991, at about 4:30 A.M., two vehicles in a Bryan apartment complex parking lot were burglarized during a police stakeout and that Appellant was guilty as a party to the burglaries. The State introduced evidence that Appellant drove a car which brought the burglar to the scene, departed briefly after dropping its passenger, and returned to the scene a short time later, as if to retrieve his passenger, only to then flee police. The person who actually broke into the vehicles escaped. The court sentenced Appellant to fifteen years confinement and a $1000 fine for count one, and ten years' probation and a $1000 fine for count two.

          Appellant brings two points of error. He complains that the evidence was insufficient to prove beyond a reasonable doubt that he had aided or attempted to aid an unknown person in burglarizing two motor vehicles. Appellant asserts in point two that the court erred in allowing the State's improper jury argument which allegedly injected new and harmful facts outside the record and invited jurors to speculate about harmful facts not in evidence. We will affirm the judgment.

          Our standard of review in determining the sufficiency of the evidence is whether, viewing both the direct and circumstantial evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Turner v. State, 805 S.W.2d 423, 427 (Tex. Crim. App. 1991). While mere presence in the vicinity of a crime, even when accompanied by flight, is not alone sufficient to uphold a conviction, the evidence in this case supportive of Appellant's conviction is more than circumstantial. See Moore v. State, 532 S.W.2d 333, 337 (Tex. Crim. App. 1976); Ysasaga v. State, 444 S.W.2d 305, 308-09 (Tex. Crim. App. 1969). Moreover, flight by the accused is probative, circumstantial evidence from which an inference of guilt may be drawn. Ysasaga, 444 S.W.2d at 308.

          The record reflects that in the early morning hours of September 11, 1991, four Bryan police officers were staked out in their personal cars in the parking lot of an apartment complex called The Oaks. They were attempting to apprehend the persons responsible for numerous auto burglaries at similar apartment complexes.

          At about 4:30 A.M., a maroon car, later identified as a Pontiac Grand Prix, drove into the south entrance of The Oaks parking lot, circled the lot slowly, and returned to the south entrance, where it stopped. The officers observed that the car was occupied by two black males, a driver and a front seat passenger. As the car circled the lot, two of the officers were able to see the car's license plate and noted the number as 955-GUF or 955-GHF. Officer Wager, who had been staked out near the south entrance, positively identified the license plate of the car as 955-GUF. When the car stopped at the south entrance, its passenger alighted and the car then drove out of the south entrance away from the lot. Officer Wager followed the passenger as he walked into the lot itself. Within five minutes, Officer Wager heard a thumping noise followed by glass shattering and saw the passenger leaning inside the driver's window of a Mazda pickup. Two vehicles parked side-by-side had been broken into, and a stereo was removed from one of them. Officer Wager attempted to catch the burglar, who threw down the stereo he held and ran past the officer to the south entrance. As the officer chased the burglar, the same maroon car reentered the parking lot at the south entrance. The driver was the only person in the car when it returned to The Oaks. The burglar initially ran toward the car, hesitated briefly, then took off into the woods near the south entrance.

          Officer Wager drew his gun and ordered the driver of the car to stop; however, the driver immediately accelerated, turned, and sped out of the north parking lot entrance. Although Wager was able to get what proved to be the correct license number for the car, he testified that he did not get a good enough look at the driver to identify him.

          The speeding car barely avoided two marked patrol cars (which had not been a part of the stakeout) blocking the north entrance. Officer Duane Hill, who occupied one of the two patrol cars, testified that he had been on his regular 10 p.m. to 6 a.m. shift and had been unaware of the apartment complex stakeout. However, when he first heard "radio traffic" from that area and then heard that an officer was involved in a foot pursuit, he headed for The Oaks. Hill and another officer pulled their cars into the north entrance, with overhead lights on. According to Hill, the maroon car, which was attempting to exit the north entrance, turned in front of Hill's patrol car and drove along the shoulder of the road. Hill testified that he saw only one person, the driver, in the car. Officers Hill and Smith chased the car north for approximately a mile before it missed a right turn onto a highway exit ramp and slid into a ditch. The driver then jumped from the car and began running. Hill jumped from his patrol car and pursued the driver on foot. Hill, who had a flashlight, described the driver as wearing a white or light-colored shirt, shorts and black shoes. He chased the driver approximately 150-200 yards through an open field, over a barbed-wire fence and into a wooded area where he finally caught him. At one point during the chase on foot, the driver disappeared over an embankment and was briefly out of the officer's sight. When Officer Hill reached the top of the embankment, he stated that the defendant was approximately fifty yards ahead of him. The officer apprehended Appellant, his body covered with scratches, after he stumbled and fell on a fire ant bed. At trial, Officer Hill unequivocally identified Appellant as the man he had chased from the maroon car and finally apprehended.

          The defense primarily relies upon the brief moments when the pursuing officer had temporarily lost sight of Appellant as he disappeared on the far side of the embankment to attack the sufficiency of the evidence to support the identity of the person apprehended (Appellant) as being the same person who had driven the maroon car. Appellant also claims that, because one of the officers believed the driver to be a black male with a light complexion and Appellant is very dark, the evidence was insufficient to prove that he was the driver of the maroon Pontiac Grand Prix. Appellant claims that there is reasonable doubt that the man chased was the same man who was apprehended—that is, Appellant.

          The four officers who actually participated in the stakeout at the apartment complex testified that they could not see the faces of either the driver or the passenger well enough to identify either. One of those officers testified to his prior written (erroneous) statement—that the driver was a light-complected black male and that the car initially turned left upon fleeing him. However, Officer Hill, who actually chased the driver of the maroon Grand Prix and later apprehended him after he jumped from the ditched car, testified that Appellant was the man he had pursued and caught.

          In light of the direct testimony contained in the record as summarized above, neither of Appellant's arguments are persuasive. Officer Hill's sworn testimony is sufficient for the jury to have found that Appellant was the person who was driving the maroon automobile. This court cannot substitute its judgment concerning the credibility of the witnesses for that of the jury. See Corley v. State, 582 S.W.2d 815, 819 (Tex. Crim. App. 1979). Point one is overruled.

          In point two, Appellant complains that the trial court erred in allowing the State's improper jury argument which injected new and harmful facts outside the record and invited the jurors to speculate about matters not in evidence. The argument in question attempted to solidify Appellant's connection with the maroon car, its owner, Queen Gaines, and Alex Ross, whose fingerprints had been found on the automobile. The State argued: "Some of the unanswered questions I have on this are; how'd the defendant get Ms. Gaines's car? I mean, she was sworn in as a Defense witness but they never called her to say how this Defendant got her car. They never called her to say when he got her car. They never called her to say what her relationship might be to Alex Ross or bring anybody to testify . . . ."

          The State may comment on the defendant's failure to call competent and material witnesses and may further argue that the reason for such failure is that the testimony would have been unfavorable to the defense. Garrett v. State, 632 S.W.2d 350 (Tex. Crim. App. 1987). Moreover, argument in which the jury is asked to make reasonable deductions from the evidence is proper. Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973).

          The evidence had shown that the maroon Grand Prix, license plate 955-GUF, was owned by a woman named Queen Gaines. She had been sworn as a defense witness immediately following the entry of Appellant's plea of not guilty to the indictment. The jury could reasonably infer that, if she had loaned her car to someone other than the Appellant, she could have readily testified to that fact.

          The jury had also heard testimony that a fingerprint of a person by the name of Alex Ross was found on the passenger-door window of Gaines' car. Gaines could have explained the connection, if any, between Alex Ross and the car used in the burglaries.

          The argument of which Appellant complains is well within the permissible guidelines set forth above. Even if it could be said that the argument improperly called upon the jury to speculate about matters not in evidence, we do not find that it injected new and harmful facts sufficient to constitute reversible error. See Duffy v. State, 567 S.W.2d 197, 206 (Tex. Crim. App. 1978).. Point two is overruled.

          We affirm the judgment of the trial court.

                                                                                 PER CURIAM

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed February 3, 1993

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