Opinion issued November 16, 2006
In The
Court of Appeals
For The
First District of Texas
NO. 01-05-01000-CR
BOBBY JOE LOPEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause No. 1025002
MEMORANDUM OPINION
Appellant, Bobby Joe Lopez, appeals the trial court’s judgment convicting him of the felony offense of burglary of a habitation with intent to commit theft. See Tex. Pen. Code Ann. § 30.02(a)(1), (c)(2) (Vernon 2003). Appellant pleaded not guilty to the burglary and true to a punishment enhancement paragraph. The charge to the jury authorized a finding of guilt if the jury found that appellant committed burglary of a habitation with intent to commit theft either as the primary actor or as a party to the offense. The jury found appellant guilty, found true the enhancement paragraph, and assessed punishment at confinement in prison for life and a fine of $10,000. In six issues, appellant asserts that the evidence is legally and factually insufficient to support his conviction because the evidence does not establish that
• appellant entered the habitation of complainant (issues one and two);
• appellant committed an act with intent to promote the offense of burglary (issues three and four); or
• appellant aided, assisted, or encouraged another individual to commit the burglary (issues five and six).
We conclude that the evidence is legally and factually sufficient to sustain appellant’s conviction as a party to burglary. We thus need not address the sufficiency of the evidence to establish appellant’s guilt as the primary actor. See Ladd v. State, 3 S.W.3d 547, 557 (Tex. Crim. App. 1999) (holding that when not possible to tell whether jury found appellant guilty on specific theory and jury charge authorizes jury to convict on several different theories, verdict of guilt will be upheld if evidence is sufficient on any one theory). We affirm.BackgroundOn April 27, 2005, complainant and his wife left their home in Seabrook to run an errand. When they returned home, a Suburban was blocking their driveway. The Suburban slowly pulled forward, allowing access to the driveway. Both complainant and his wife saw only one person, the driver, inside the Suburban. The driver was talking on a cellular telephone. While driving up the driveway, complainant noticed that the gate to the backyard was open. Alarmed because the gate had been closed when he left, complainant told his wife to stay in the car and he got out to check the gate. When he reached the gate, he saw that his backdoor was open. The door had been forced open and the doorjamb was broken.
Suspecting that his house had been burglarized by the person in the Suburban, complainant told his wife to get out of the car and call the police. Complainant backed out of his driveway and followed the Suburban, which was driving away from complainant’s house at a high rate of speed. While following the Suburban, complainant got out of his car to flag down a Harris County Constable who was driving a patrol car. Complainant pointed out the Suburban and told the constable that the people in the Suburban had burglarized his house. By the time complainant returned to his vehicle, he had lost sight of the constable and the Suburban. He drove around for a few minutes looking for the Suburban, but then returned home.
Meanwhile, the constable continued chasing the Suburban, until the Suburban pulled over. The constable arrested the three men that were in the Suburban— Christopher Delossantos, the driver; Ruben Hernandez, the front-seat passenger; and appellant, the back-seat passenger. When the Suburban was searched, police officers recovered a jewelry box and a bag that contained other items belonging to complainant, including the driver’s license of complainant’s wife. Delossantos’s cellular telephone was found in the center console of the Suburban. Appellant also had a cellular telephone in his pocket.
Upon inspection, complainant noticed a number of items missing from the house. These included several pieces of jewelry, a jewelry box, and a computer monitor. In addition, several drawers and closets were opened with the items inside in disarray, indicating that someone had rummaged through them. The solid mahogany double-doors of the front of the house were cracked and buckled, because someone had attempted to force them open.
An officer responding to the burglary found no usable fingerprints, but found a footprint on the front door of complainant’s house. He dusted the print so that it would contrast with the color of the front door. The officer went to the police department to inspect the shoes worn by appellant, Hernandez, and Delossantos to see if they matched the shoe print on the door. Although the shoes worn by Delossantos and appellant had the same tread pattern as the print on the door, Delossantos’s shoes were smaller than the print on the door. Appellant’s shoes, however, matched not only the tread pattern on the door, but also matched the size of the shoe print on complainant’s door.
The jewelry box and other property that were recovered inside the Suburban were later identified by complainant and his wife as the items that had been taken from their house. Additionally, the call log from the cellular telephones, as well as the billing statements, showed several calls on the morning of and during the time of the burglary between the cellular telephones belonging to Delossantos and appellant.
At trial, appellant presented the testimony of Delossantos and Hernandez to show that he was not involved in the burglary. Delossantos testified that he picked up appellant on the morning of April 27, 2005, to run an errand. Shortly after picking up appellant, Delossantos got a telephone call from his cousin, Hernandez, asking Delossantos to come pick him up. Delossantos drove to a neighborhood that he was unfamiliar with, stopping in front of the house Hernandez represented was his girlfriend’s house. Appellant got out of the Suburban to get Hernandez. Appellant went up to the front door, knocked, and “came right back to the [Suburban].” He was gone for “[n]ot even a minute.” When he returned, appellant was not carrying anything from the house. Hernandez was carrying a bag when he exited the house. Delossantos acknowledged that he drove Hernandez and appellant from the house, but claimed that he was unaware that complainant or the constable followed him after they left the house. Delossantos said that, based on what he saw that day, appellant was not involved with the burglary. Although Delossantos testified at trial that neither he nor appellant was involved in the burglary, he pleaded guilty to burglary of complainant’s house.
Hernandez testified by taking sole responsibility for the burglary of complainant’s house. Hernandez stated that he did not have a ride, so he called Delossantos to come pick him up. Hernandez said that he tried to kick in the front door, but it would not open, and he then wiped off the front door to remove his shoe print. Hernandez forced open the back door to enter complainant’s house. When appellant came to the front door, Hernandez told appellant that he was inside with his girlfriend and would be out in about five minutes. Appellant gave Hernandez his cellular telephone so that Hernandez could let appellant and Delossantos know when he was ready to leave. Delossantos kept calling Hernandez because Hernandez told Delossantos that he was at his girlfriend’s house, that he was not supposed to be there, and that his girlfriend’s parents might return. When complainant and his wife arrived at the house, Hernandez told Delossantos that it was his girlfriend’s parents returning, instructing Delossantos to leave. Hernandez noticed complainant following the Suburban, so he tried to make conversation, joking with Delossantos and appellant to distract them, and to prevent them from noticing that they were being followed. Hernandez testified that he never told Delossantos or appellant that he was burglarizing complainant’s house. Hernandez also said that neither appellant nor Delossantos was involved in the burglary. However, Hernandez also testified that as part of a plea-bargain agreement, he stipulated that he had committed the burglary “along with [appellant] and Christopher Delossantos.”
Sufficiency of the Evidence
Appellant contends that the evidence is legally and factually insufficient to show that appellant committed any act with intent to promote the offense of burglary or that he aided, assisted, or encouraged another individual to commit the burglary.
A. Burglary and the Law of Parties
A person commits the second degree felony offense of burglary of a habitation if he enters a habitation without the effective consent of the owner with the intent to commit a theft. Tex. Pen. Code Ann. § 30.02(a)(1), (c)(2). A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. Id. § 7.01(a) (Vernon 2003). A person is criminally responsible if he acts with intent to promote or assist the commission of the offense and solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Id. § 7.02(a)(2).
When a party is not the “primary actor,” the State must prove conduct constituting an offense plus an act by the defendant done with the intent to promote or assist such conduct. Beier v. State, 687 S.W.2d 2, 3 (Tex. Crim. App. 1985); Miller v. State, 83 S.W.3d 308, 313 (Tex. App.—Austin 2002, pet. ref’d). Proof that a person is a party to an offense may be established with circumstantial evidence that shows that the parties were acting together to accomplish their common purpose. See Wygal v. State, 555 S.W.2d 465, 469 (Tex. Crim. App. 1977); Miller, 83 S.W.3d at 314. The agreement to accomplish a common purpose, if any, must be made before or contemporaneous with the criminal event, but in determining whether one has participated in an offense, the court may examine the events occurring before, during, and after the commission of the offense. Wygal, 555 S.W.2d at 468–69; Miller, 83 S.W.3d at 314. While mere presence at the scene, or even flight, is not enough to sustain a conviction, such facts may be considered in determining whether an appellant was a party to the offense. Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App. 1979); Miller, 83 S.W.3d at 314.
If the evidence, however, shows the mere presence of an accused at the scene of an offense or his flight from the scene, without more, then it is insufficient to sustain a conviction as a party to the offense. Valdez, 623 S.W.2d at 321; Scott v. State, 946 S.W.2d 166, 168 (Tex. App.—Austin 1997, pet. ref’d).
B. Legal Sufficiency
In a legal sufficiency review, we consider the entire trial record to determine whether, viewing the evidence in the light most favorable to the verdict, a rational jury could have found the accused guilty of all essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct. 2781, 2788–89 (1979); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). In conducting our review of the legal sufficiency of the evidence, we do not reevaluate the weight and credibility of the evidence, but ensure only that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).
In his third and fifth issues, appellant asserts that the evidence is legally insufficient to support his conviction under the law of parties because “the evidence failed to establish that the appellant committed any act with the intent to promote the alleged burglary offense” and “the evidence failed to establish that the appellant aided, assisted, or encouraged any other individual to commit the alleged burglary offense.” Specifically, appellant contends that the evidence is legally insufficient because no witness affirmatively states that appellant was involved in the burglary and both Delossantos and Hernandez testified that appellant was not involved with the burglary.
Viewing the evidence in a light most favorable to the jury’s verdict, the evidence shows that Hernandez burglarized complainant’s home by entering it and taking complainant’s property without consent. The record also shows that a shoe print was found on the front door that matched the size and shape of the shoe worn by appellant when appellant was arrested shortly after the burglary. The detective investigating the burglary stated that the shoe print was located where one attempting to kick open the front door would kick and that the damage to the door was consistent with someone kicking the door in an attempt to force it open. Appellant was in the Suburban with Hernandez, who acknowledged that he burglarized the house and that he was taken from the house in the Suburban driven by Delossantos. Appellant was seated in the back seat of the Suburban where items stolen from complainant’s home were found.
A rational juror could have inferred from this evidence that Hernandez entered complainant’s house and stole property while appellant assisted the burglary by attempting to force entry into complainant’s home by kicking the front door. Thus, a rational juror could have found that appellant was guilty under the law of parties. See Powell v. State, 194 S.W.3d 503, 507–08 (Tex. Crim. App. 2006) (finding evidence legally sufficient to support conviction of burglary under law of parties when appellant was present at scene of burglary, was later found in possession of truck observed at crime scene, and knew man that pleaded guilty to same burglary).
We overrule appellant’s third and fifth issues.
C. Factual Sufficiency
In his fourth and sixth issues, appellant asserts that the evidence is factually insufficient to support his conviction under the law of parties because the verdict “was simply against the great weight and preponderance of the evidence.”
When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. Ladd v. State, 3 S.W.3d at 557. We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Under the first prong of Johnson, we cannot conclude that a conviction is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, No. PD-469-05, 2006 WL 2956272, at *10 (Tex. Crim. App. Oct. 18, 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s verdict. Id. In conducting a factual-sufficiency review, we must discuss the evidence that, according to the appellant, most undermines the jury’s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
We may not re-weigh the evidence and substitute our judgment for that of the fact-finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The fact-finder alone determines what weight to place on contradictory testimonial evidence because that determination depends on the fact-finder’s evaluation of credibility and demeanor. Cain, 958 S.W.2d at 408–09. As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented. Id. at 407 n.5.
Appellant contends that the evidence that most undermines the jury’s verdict is the testimony of Delossantos and Hernandez, who both testified that appellant was not involved in the burglary. Appellant also points out that no fingerprints or other physical evidence showed that appellant was inside complainant’s home. Appellant states that the physical evidence shows only that he was outside complainant’s house, which is consistent with the testimony from the defense witnesses, who claimed that appellant was only at the scene to pick up Hernandez from what was believed to be Hernandez’s girlfriend’s house.
The State offered evidence that points to appellant’s guilt as a party to the offense. See Wygal, 555 S.W.2d at 469; Miller, 83 S.W.3d at 314. The shoe print on the door of the burglarized house was the same pattern and size as the shoes worn by appellant. The location of the shoe print and the damage to the front door indicated that it had been kicked in an attempt to force entry into complainant’s home. The physical evidence therefore suggests that appellant was assisting in the commission of the burglary by attempting to kick in the door. The record also shows that during the time Hernandez was admittedly committing the burglary, Delossantos called appellant’s cellular telephone several times. Although Delossantos testified at trial that neither he nor appellant was involved in the burglary, Delossantos pleaded guilty to the burglary, and thus his testimony could rationally have been rejected by the jury. Similarly, the jury could have rationally determined that Hernandez’s claims that appellant was innocent are not consistent with Hernandez’s stipulation that Delossantos and appellant were involved in the burglary.
Viewing all of the evidence in a neutral light, both for and against the jury’s finding of guilt, we conclude that the proof of guilt is not so obviously weak as to undermine confidence in the jury’s determination and that the proof of guilt is not greatly outweighed by contrary proof. As the sole judge of the credibility of the witnesses, the jury could properly reject Delossantos’s and Hernandez’s testimony. See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000) (stating jury can accept or reject any evidence presented at trial). The jury could also reasonably have found that appellant attempted to kick in complainant’s door in an effort to aid Hernandez to commit the burglary. See Powell, 194 S.W.3d at 506–07 (noting that defendant does not have to actually enter building to be guilty of burglary under law of parties); Beier, 687 S.W.2d at 3 (stating that guilt as party can be established by proof of act done with intent to promote or assist primary actor); Miller, 83 S.W.3d at 313 (same). Accordingly, we hold that the evidence was factually sufficient to support appellant’s conviction as a party to the offense of burglary of a habitation.
We overrule appellant’s fourth and sixth issues.
Because we have concluded that the evidence is legally and factually sufficient under the law of parties, we need not address issues one and two, which challenge the sufficiency of the evidence to establish appellant’s guilt as the primary actor. See Ladd, 3 S.W.3d at 557.Conclusion
We affirm the judgment of the trial court.
Elsa Alcala
Justice
Panel consists of Chief Justice Radack and Justices Alcala and Bland.
Do not publish. Tex. R. App. P. 47.2(b).