William Larry Foley v. State ( 2020 )

NO. 12-20-00017-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
WILLIAM LARRY FOLEY, § APPEAL FROM THE 7TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
William Larry Foley appeals his conviction for burglary of a habitation. In two issues,
Appellant argues his conviction is not supported by sufficient evidence and the trial court erred by
imposing unconstitutional court costs. We modify the judgment and affirm as modified.
BACKGROUND
Appellant was indicted for burglary of a habitation with the intent to commit assault, a
second-degree felony. 1 Appellant entered a plea of “not guilty” and the case proceeded to a jury
trial. The jury found Appellant “guilty” as charged in the indictment. Appellant elected to have
the trial court assess his punishment. Appellant pleaded “true” to the State’s allegations that he
had previously been finally convicted of two sequential felony offenses, elevating his punishment
range to imprisonment for twenty-five years to ninety-nine years or life. 2 The trial court sentenced
Appellant to life imprisonment. This appeal followed.
1
TEX. PENAL CODE ANN. § 30.02(c)(2) (West 2019).
2
Id. § 12.42(d) (West 2019).
SUFFICIENCY OF THE EVIDENCE
In his first issue, Appellant argues that the evidence is insufficient to support his conviction.
Specifically, he contends the evidence is insufficient to establish that he is the individual who
committed the burglary.
Standard of Review
In Texas, 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. Brooks
v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Legal sufficiency is the constitutional
minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal
conviction. See Jackson v. Virginia, 443 U.S. 307, 316–17, 99 S. Ct. 2781, 2786–87, 61 L. Ed.
2d 560 (1979). The standard for reviewing a legal sufficiency challenge is whether any rational
trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See
id., 443 U.S. at 319, 99 S. Ct. at 2789. The evidence is examined in the light most favorable to the
verdict. Id. A successful legal sufficiency challenge will result in rendition of an acquittal by the
reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41–42, 102 S. Ct. 2211, 2217–18, 72 L. Ed.
2d 652 (1982). This familiar standard gives full play to the responsibility of the trier of fact to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.
Under this standard, we may not sit as a thirteenth juror and substitute our judgment for
that of the factfinder by reevaluating the weight and credibility of the evidence. See Dewberry v.
State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); see also Brooks, 323 S.W.3d at 899. Instead,
we defer to the factfinder’s resolution of conflicting evidence unless the resolution is not rational.
See Brooks, 323 S.W.3d at 899–900. When the record supports conflicting inferences, we
presume that the factfinder resolved the conflicts in favor of the prosecution and therefore defer to
that determination. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Direct and
circumstantial evidence are treated equally. Id. Circumstantial evidence is as probative as direct
evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient
to establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The duty of a
reviewing court is to ensure that the evidence presented supports a conclusion that the defendant
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committed the crime charged. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.
2007).
The sufficiency of the evidence is measured against the elements of the offense as defined
by a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). Such a charge would include one that “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 was tried.” Id.
Applicable Law
As pertinent to this case, a person commits the offense of burglary of a habitation if,
without the effective consent of the owner, he enters a habitation with the intent to commit assault.
TEX. PENAL CODE ANN. § 30.02 (a)(1) (West 2019). One manner in which a person commits
assault is if he intentionally, knowingly, or recklessly causes bodily injury to another. Id. § 22.01
(a)(1) (West Supp. 2020).
The State must prove beyond a reasonable doubt that the accused is the person who
committed the crime charged. Roberson v. State, 16 S.W.3d 156, 167 (Tex. App.—Austin 2000,
pet. ref’d) (citing Johnson v. State, 673 S.W.2d 190, 196 (Tex. Crim. App. 1984); Rice v. State,
801 S.W.2d 16, 17 (Tex. App.—Fort Worth 1990, pet. ref’d)). Identity may be proved by direct
or circumstantial evidence. Robertson, 16 S.W.3d at 167 (citing Earls v. State, 707 S.W.2d 82, 85
(Tex. Crim. App. 1986); Couchman v. State, 3 S.W.3d 155, 162 (Tex. App.—Fort Worth 1999,
pet. ref’d); Creech v. State, 718 S.W.2d 89, 90 (Tex. App.—El Paso 1986, no pet.)). “In
fact, identity may be proven by inferences.” Robertson, 16 S.W.3d at 167 (citing United States v.
Quimby, 636 F.2d 86, 90 (5th Cir. 1981)); see Clark v. State, 47 S.W.3d 211, 214 (Tex. App.—
Beaumont 2001, no pet.); see also Jones v. State, 900 S.W.2d 392, 399 (Tex. App.—San Antonio
1995, pet. ref’d) (explaining that jury may use common sense and apply common knowledge,
observation, and experience gained in ordinary affairs of life when giving effect to inferences that
may reasonably be drawn from evidence).
The Evidence at Trial Regarding Identity
Twilajoy Whitehead, the victim of the burglary, testified she was alone in her apartment
on South Kennedy Avenue in Tyler, Texas during the early morning hours of April 16, 2019.
When she heard loud noises outside, Whitehead went to lock the partially open front door. As she
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attempted to lock the door, a man forced his way through the door and into her apartment.
Whitehead testified that the man hit her in the face and choked her with her necklace. When her
necklace broke, the man began choking her with his hands. Whitehead recalled falling to the
ground and the attacker getting on top of her and choking her with his hands. She lost
consciousness and when she came to, her roommate’s boyfriend, Benjamin Seastrunk, and the
apartment maintenance man were pulling the man off her. Whitehead believed she scratched the
man while trying to defend herself. She was unable to recall how or when the man left the scene.
Whitehead’s roommate, Lauren Coon, called law enforcement. Whitehead could not identify
Appellant as her attacker, but recalled the attacker was a tall, black, bald male. Whitehead testified
she believed the attacker’s family lived in the apartment next door, because after the attack she
went outside to smoke a cigarette and the residents of the apartment threatened to “beat her up” if
“the law got called.”
Coon testified she was upstairs at a neighbor’s apartment during the burglary. Coon heard
loud banging noises and returned to her apartment where she found Whitehead on the ground with
a man on top of her and his hands around her throat and his knees on her chest. Coon recognized
the man because she had seen him “around the apartments” but she did not know his name. Coon
testified the man was a light skinned black male with a bald head, wearing no shirt and a pair of
dark shorts. She described the man as between five feet six inches and five feet eight inches tall
with a small to medium, but muscular build. Coon testified that Seastrunk recalled observing
tattoos on the man. She testified that the man left the apartment on foot and walked to the right of
the apartment building. Coon called law enforcement, reported the burglary, and gave the
emergency services dispatcher the man’s physical description and direction of travel. Coon
testified the attacker’s family members, who resided next door, refused to tell her the attacker’s
name.
Tyler Police Department Officer Adam Riggle responded to the scene and spoke with
Whitehead, Coon, and Seastrunk. Riggle testified that the three individuals collectively described
the attacker as a light skinned black male, bald headed, short in stature, muscular in build, wearing
dark shorts but no shirt, with visible tattoos, and a hairy chest. Riggle broadcasted the attacker’s
description to other officers in the area who were searching for the suspect.
Officers Joshua Darty and Joshua Allen both testified they were en route to the Kennedy
Avenue apartment complex when Riggle asked them to search the nearby area for the suspect, who
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was reported to be on foot. Darty testified they located Appellant shortly after receiving Riggle’s
description. Appellant was found walking on a sidewalk within a block or two of the Kennedy
Avenue apartment complex. Allen and Darty testified that Appellant matched the description of
the attacker and was traveling on foot in the direction of travel described by Coon.
Both Darty and Allen wore body cameras that captured video and audio footage of their
contact with Appellant. This footage was introduced at trial. The footage confirms that Appellant
matched the suspect description given by Whitehead, Coon, and Seastrunk. The footage showed
Darty approach Appellant and tell him he matched the description of an assault suspect. Appellant
asked Darty if the witnesses said he had tattoos, and Darty responded that the witnesses described
the suspect as having tattoos. Appellant denied assaulting anyone and further denied even being
at the Kennedy Avenue apartment complex. Darty asked Appellant about a bleeding cut on
Appellant’s chin, and Appellant told Darty that he “got into it” with his girlfriend “awhile ago.”
Darty pointed out that the cut was bleeding and fresh, and asked Appellant if he “wanted to change
his story.” Appellant then told Darty that “she started squabbling with a [expletive].” Darty asked
Appellant to clarify who started squabbling with him. Appellant told Darty he was at his niece’s
home and got into a squabble with a girl that he did not know, the “chick was tripping,” and hit
him in the eye area, and he grabbed the girl, who slipped and fell. He told Darty the girl was “full
of liquor” and stated “[we] can go over there right now.” Appellant asked Allen if “she said I hit
her.” Appellant then told Allen that his niece told him to leave her home because the police were
called. Darty transported Appellant to the Kennedy Avenue apartment complex. Darty testified
and the footage confirms that Appellant did not dispute the location of the “squabble” but reiterated
to Darty that the girl was “drunk.”
Riggle testified he arrested Appellant at the scene based on all the evidence and transported
Appellant to jail. Riggle’s in car camera captured video and audio footage of the transport. During
this footage, which was played for the jury, Appellant tells Riggle that his niece lives in the
Kennedy Avenue apartment complex. Riggle, Darty, and Allen identified Appellant in open court,
in the jury’s presence, as the individual they arrested for the burglary.
Analysis
As previously stated, a person commits the offense of burglary of a habitation if, without
the effective consent of the owner, he enters a habitation with the intent to commit assault. TEX.
PENAL CODE ANN. § 30.02 (a)(1). Appellant does not challenge the State’s proof on any element
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of the offense except identity. Identity may be proved by direct or circumstantial evidence, or by
inferences. Robertson, 16 S.W.3d at 167. When there is no direct evidence of the perpetrator’s
identity elicited from trial witnesses, no formalized procedure is required for the State to prove the
identity of the accused. Id. Furthermore, proof by circumstantial evidence is not subject to a more
rigorous standard than proof by direct evidence; direct and circumstantial evidence are equally
probative for purposes of proving guilt beyond a reasonable doubt. Id. The sufficiency of the
evidence is determined from the cumulative effect of all the evidence; each fact in isolation need
not establish guilt. Alexander v. State, 740 S.W.2d 749, 758 (Tex. Crim. App. 1987). The absence
of an in court identification does not render the evidence insufficient if there is other evidence
sufficient to identify the defendant as the perpetrator. Couchman, 3 S.W.3d at 162.
While no witness at trial identified Appellant as the burglar, the record contains ample
circumstantial evidence to establish Appellant’s identity as the burglar. Appellant matched the
detailed physical description given by Whitehead, Coon, and Seastrunk. Further, Appellant was
apprehended on foot near the scene shortly after the burglary. Appellant initially denied assaulting
anyone or being at the Kennedy Avenue apartment complex but later admitted to having a physical
altercation with a woman at the Kennedy Avenue apartment complex. Appellant also
acknowledged that his niece lived at the Kennedy Avenue apartment complex and admitted to
leaving the apartment complex because his niece told him the police were called. This is consistent
with Whitehead’s and Coon’s testimony that Appellant’s family lived next door and did not want
the police called. Moreover, Appellant had a bleeding cut on his chin, consistent with Whitehead’s
testimony that she scratched the attacker. The cumulative effect of the evidence is sufficient to
circumstantially prove that Appellant was the individual who burglarized and assaulted
Whitehead. See Robertson, 16 S.W.3d at 167; Alexander, 740 S.W.2d at 758; see also McKee v.
State, No. 14-18-00671-CR, 2020 WL 3862328, at *4 (Tex. App.—Houston [14th Dist.] July 9,
2020, no pet.) (mem. op., not designated for publication) (circumstantial evidence sufficient to
prove identity in burglary prosecution despite no in court identification); see also Benitez v. State,
No. 03-10-00185-CR, 2010 WL 4909954, at *2 (Tex. App.—Austin Dec. 1, 2010, no pet.) (mem.
op., not designated for publication) (same). Thus, viewing the evidence in the light most favorable
to the jury’s verdict, we conclude that the jury was rationally justified in finding, beyond a
reasonable doubt, that Appellant committed burglary of a habitation with the intent to commit
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assault. See TEX. PENAL CODE ANN. §§ 22.01(a)(1); 30.02(a)(1); Jackson, 443 U.S. at 319, 99 S.
Ct. at 2789; see also Brooks, 323 S.W.3d at 899. Accordingly, we overrule Appellant’s first issue.
COURT COSTS
In Appellant’s second issue, he argues that the trial court erred in assessing a “time
payment” fee previously authorized by Texas Local Government Code, Section 133.103 in its
judgment. 3 The State concedes that this fee is facially unconstitutional.
We have held that the time payment fee previously authorized by Section 133.103 is
facially unconstitutional. Irvin v. State, No. 12-19-00347-CR, 2020 WL 5406276, at *7 (Tex.
App.—Tyler Sept. 9, 2020, no pet. h.) (mem. op., not designated for publication); see also Salinas
v. State, 523 S.W.3d 103, 112 n.54 (Tex. Crim. App. 2017); Ovalle v. State, 592 S.W.3d 615, 618
n.1 (Tex. App.—Dallas 2020, pet. filed); Simmons v. State, 590 S.W.3d 702, 712 (Tex. App.—
Waco 2019, pet. filed); Dulin v. State, 583 S.W.3d 351, 353 (Tex. App.—Austin 2019, pet.
granted); Johnson v. State, 573 S.W.3d 328, 340 (Tex. App.—Houston [14th Dist.] 2019, pet.
filed) (concluding that, because the portions of time payment fee authorized by Section 133.103(b)
and (d) were deposited in general revenue and were not sufficiently allocated to administration of
criminal justice system, those subsections were facially unconstitutional as violating the
separation-of-powers provision of Texas Constitution).
Fines are punitive and intended to be part of the convicted defendant’s sentence.
See Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011). Court costs, however, are
“compensatory in nature” and are “a non-punitive recoupment of the costs of judicial resources
expended in connection with the trial of the case.” Id.; Williams v. State, 495 S.W.3d 583, 590
(Tex. App.—Houston [1st Dist.] 2016), pet. dism’d, improvidently granted, 2017 WL 1493488
(Tex. Crim App. 2017).
3
The Texas Legislature passed legislation, effective January 1, 2020, that transfers Texas Local Government
Code, Section 133.103 to Texas Code of Criminal Procedure, Article 102.030 and revises the statute to provide that
all of the fees collected under the section are “to be used for the purpose of improving the collection of outstanding
court costs, fines, reimbursement fees, or restitution or improving the efficiency of the administration of justice in the
county or municipality.” See Act of May 23, 2019, 86th Leg., R.S., S.B. 346, § 2.54, 2019 Tex. Sess. Law Serv. Ch.
1352. The changes apply only to a cost, fee, or fine assessed on a conviction for an offense committed on or after the
effective date of the Act. Id. § 5.01. Because the offense in this case was committed before January 1, 2020, the
former law applies. See Ovalle v. State, 592 S.W.3d 615, 617 n.1 (Tex. App.—Dallas 2020, pet. filed).
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Here, the judgment of conviction reflects that the trial court assessed $344.00 in court costs.
The judgment includes a document identified as “Order to Withdraw Funds,” which states that
Appellant has incurred “[c]ourt costs, fees and/or fines and/or restitution” in the amount of
$344.00. The certified bill of costs itemizes the court costs imposed, which total $344.00 with a
$344.00 balance remaining. The bill of costs includes a $25.00 time payment fee and includes a
paragraph stating that a $15.00 fee will be assessed if any part of the court costs is paid on or after
the 31st day after the date the judgment assessing the court costs is entered. But see TEX. LOC.
GOV’T CODE ANN. § 133.103(c) (West 2008) (treasurer shall deposit ten percent of fees collected
under this section in general fund of county or municipality for purpose of improving efficiency
of administration of justice in county or municipality). 4
The proper remedy when a trial court erroneously includes amounts as court costs is to
modify the judgment to delete erroneous amounts. See Sturdivant v. State, 445 S.W.3d 435, 443
(Tex. App.—Houston [1st Dist.] 2014, pet. ref’d). Accordingly, we will modify the trial court’s
judgment and attached order to withdraw funds to reflect the appropriate assessment of court costs
that do not include the time payment fee. See Ovalle, 592 S.W.3d at 618. Appellant’s second issue
is sustained.
DISPOSITION
Having sustained Appellant’s second issue, we modify the trial court’s judgment and
attached order to withdraw funds to reflect that the amount of court costs is $321.50. See TEX. R.
APP. P. 43.2(b). We further modify the bill of costs to reflect same. See id. In all other respects,
we affirm the trial court’s judgment.
GREG NEELEY
Justice
Opinion delivered November 30, 2020.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
4
Subsections (b) and (d) direct ninety percent of the time payment fee to the general revenue fund and there
is no statutory directive that the funds be used for a legitimate criminal justice purpose. TEX. LOC. GOV’T CODE ANN.
133.103(b), (d) (West 2008).
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
NOVEMBER 30, 2020
NO. 12-20-00017-CR
WILLIAM LARRY FOLEY,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 7th District Court
of Smith County, Texas (Tr.Ct.No. 007-0984-19)
THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, because it is the opinion of this court that the judgment of
the court below should be modified and as modified, affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
and attached order to withdraw funds of the court below be modified to reflect that the amount of
court costs is $321.50 and modify the bill of costs to reflect same; in all other respects the judgment
of the trial court is affirmed; and that this decision be certified to the court below for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
9