In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-07-00184-CR
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TYRONE WILLIAMS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 71st Judicial District Court
Harrison County, Texas
Trial Court No. 07-0295X
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Changes in market prices sometimes drive the motives for burglary or theft. As the price of copper has soared, Panola-Harrison Electric Cooperative and other consumers of the metal have found themselves in possession of an increasingly attractive lure for burglars.
Marshall policemen responded to a tripped burglar alarm at the Panola-Harrison Electric Cooperative warehouse on July 15, 2007, and observed several suspects in flight from the premises. Surveillance video cameras on the premises recorded three individuals moving several coils of copper wire from the warehouse to the loading dock; faces of the intruders were covered by hoods. In their sweep of the area, the police discovered Tyrone Williams hiding in a wooded lot less than fifty yards from Panola-Harrison. When found, Williams was clad in clothes which were similar to those worn by one of the individuals whose photograph was captured on the surveillance camera's videotape; he had latex gloves, had multiple scratches and scrapes consistent with fleeing through the woods, and was soaking wet (a creek runs between the site where Williams was located and the Panola-Harrison facility).
Williams was convicted by a jury of the burglary of a building; he now appeals, basing his appeal on what he alleges is an error in instructions given to the jury and a claim of legally and factually insufficient evidence to sustain his conviction.
The Trial Court Did Not Err in Instructing the Jury on the Law of Parties
Williams contends, in his third point of error, that the trial court erred in instructing the jury as to the law of parties. According to Williams, all of the State's evidence was directed toward establishing Williams's liability as a principal.
In analyzing a jury charge complaint, we first determine whether error exists in the charge and, then, if there was error, whether sufficient harm resulted from the error to compel reversal. Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005). When error occurs in failing to properly instruct the jury, our review of the charge is under the Almanza standard. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g).
A person is criminally culpable as a party if, with intent to promote or assist the commission of the offense, the person solicits, encourages, aids, directs, or attempts to aid, another person in commission of the offense. Tex. Penal Code Ann. § 7.02(a)(2) (Vernon 2003). The evidence is sufficient to sustain a conviction under the law of parties if that evidence shows that the defendant was physically present during the commission of the offense and that the defendant encouraged or aided the crime's commission by either words, agreement, or other affirmative and supportive conduct. King v. State, 29 S.W.3d 556, 564 (Tex. Crim. App. 2000); Ransom v. State, 920 S.W.2d 288, 301 (Tex. Crim. App. 1994) (op. on reh'g).
When there is evidence that the defendant is guilty as a party, a trial court may charge the jury on the law of parties even if the indictment charges the defendant as a principal. Swope v. State, 805 S.W.2d 442, 444 (Tex. Crim. App. 1991); Rosillo v. State, 953 S.W.2d 808, 811 (Tex. App.--Corpus Christi 1997, pet. ref'd); see Marable v. State, 990 S.W.2d 421, 424 (Tex. App.--Texarkana 1999), aff'd, 85 S.W.3d 287 (Tex. Crim. App. 2002); see also Tex. Penal Code Ann. § 7.01(c) (Vernon 2003). "'In determining whether a defendant participated in an offense as a party, the court may examine the events occurring before, during, and after the commission of the offense, and may rely on actions of the defendant which show an understanding and common design to commit the offense.'" Rivera v. State, 12 S.W.3d 572, 575-76 (Tex. App.--San Antonio 2000, no pet.) (quoting Burdine v. State, 719 S.W.2d 309, 315 (Tex. Crim. App. 1986), superseded by rule change as stated in Barnes v. State, 876 S.W.2d 316, 325 (Tex. Crim. App. 1994)).
The State presented considerable evidence that there were multiple persons involved in the burglary. As discussed in more detail below, the surveillance camera at the Panola-Harrison building recorded that there were three persons on the premises who were involved in attempting to take possession of copper wire. The police observed two suspects fleeing the scene. The videotape recorded the image of a person holding a crowbar; that person wore clothes similar to those worn by Williams when he was discovered hiding nearby. There was sufficient evidence of a common purpose to raise the issue of whether Williams was guilty as a party. The trial court did not err in instructing the jury on the law of parties. Because there is no error, it is not necessary for us to proceed to the harm analysis under Almanza. Williams's third point of error is overruled.
The Evidence Is Legally and Factually Sufficient
In his first and second points of error, Williams argues that the evidence presented to the jury is both legally and factually insufficient to sustain his conviction. According to Williams, the evidence is insufficient to establish that Williams was one of the burglars. In the alternative, Williams argues the State merely proved he was present during the commission of the offense--not that he was a participant in it.
In reviewing the legal sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). A person commits the offense of burglary of a building "if, without the effective consent of the owner, the person: (1) enters a . . . building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault; . . . or (3) enters a building . . . and commits or attempts to commit a felony, theft, or an assault." Tex. Penal Code Ann. § 30.02(a)(1), (3) (Vernon 2003).
In a factual sufficiency review, we likewise review all the evidence, but do so in a neutral light and determine whether the evidence supporting the verdict is so weak or is so outweighed by the great weight and preponderance of the evidence that the jury's verdict is clearly wrong or manifestly unjust. (1) Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007); Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006); Watson, 204 S.W.3d at 414-15; Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996).
Panola-Harrison kept an inventory of transformers, copper wire, and aluminum wire at the facility. Because Panola-Harrison had been experiencing thefts, it had installed four video cameras which fed videotape machines and a burglar alarm which was activated by a motion sensor. The alarm was monitored by an employee of Panola-Harrison who lived near the facility. Around 11:25 on the night of the theft, the employee contacted his supervisor and notified the police that the alarm had been triggered. As Richard Fischer, the operations supervisor for Panola-Harrison, unlocked the gate for the police, a suspect peered around the side of the building and fled, with the officers in pursuit. The police pursued two suspects who eluded the police by scaling Panola-Harrison's fence. After the officers returned from the initial unsuccessful pursuit, the police and Fischer reviewed the footage of the videotape from the security cameras. The videotape showed three men staging copper to be removed from the facility. Although there was actually no copper wire removed from the premises at that time, several coils of copper wire had been moved to the loading dock, presumably to be taken from that location.
While the other officers were pursuing the suspects they had observed inside the fence of Panola-Harrison, Officer Kenneth Phillips proceeded around the perimeter of the fence with a police dog which had been trained and certified in spoor tracking. Officer Phillips had observed the suspects elude the other officers and proceeded to the edge of the wooded lot where the suspects had fled. "Within a couple of minutes" after being placed on the spoor trail, the canine located Williams lying on his back about fifty yards from the fence. Williams was dirty and wet. There was a creek between Williams's location and the Panola-Harrison building. Williams was also breathing hard, had torn his clothes, had cuts on his hands, and had white latex gloves "on his person." Officer C. J. Boyd, who assisted Officer Phillips in detaining Williams, testified Williams was wet, breathing hard, and was "wearing latex gloves." Williams's cuts and abrasions were photographed after his arrest and the photographs were admitted into evidence. Sergeant David Reaves testified that the cuts and abrasions were consistent with what might be inflicted on an individual who had fled over a fence and through a dense wooded area. Victor Schwartz, the general manager of Panola-Harrison, testified he did not give Williams permission to be in the building or to take anything from the building.
Williams's contention that the State must show more than mere presence of the defendant to establish participation in a criminal offense is a correct one. See Stroman v. State, 69 S.W.3d 325, 329 (Tex. App.--Texarkana 2002, pet. ref'd); see also Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App. [Panel Op.] 1981) (op. on reh'g). The evidence, though, does show more than mere presence. Williams was wearing or had latex gloves and appeared to be the same person observed holding a crowbar on the surveillance videotape. Based on the circumstantial evidence, a rational juror could have concluded beyond a reasonable doubt that Williams was one of the three intruders and that Williams, either as a principal or a party, committed burglary of a building. The evidence is legally sufficient. Williams's first point of error is overruled.
Williams argues the State's evidence proving he was one of the intruders is so weak that the jury's verdict is manifestly unjust. We note the State's evidence proving identity is entirely circumstantial. Because the men had "hoods on and stuff," the intruders could not be identified from the videotape and the other two intruders who eluded capture and fled the scene could not be identified. The videotape did show that one of the three intruders, who had a crowbar, was wearing a dark short-sleeved shirt and white latex gloves. A crowbar was found at the scene which did not belong to Panola-Harrison.
Circumstantial evidence can be as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). In a factual sufficiency review, we are to afford "due deference" to a jury's determinations. Marshall, 210 S.W.3d at 625. "Although an appellate court reviewing factual sufficiency has the ability to second-guess the jury to a limited degree, the review should still be deferential, with a high level of skepticism about the jury's verdict required before a reversal can occur." Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007). We are unable to reach the high level of skepticism required to reverse for factual sufficiency. The evidence of guilt is not so weak that the jury's verdict is manifestly unjust or clearly wrong.
Williams argues that "the physical evidence recovered from the site and recovered from Appellant suggested that Appellant had not been at the site." Lieutenant Reid McCain was unable to detect any fingerprints on the crowbar or sunglasses left at the scene. One observes that it is common knowledge that a person wearing latex gloves will leave no trace of fingerprints. Several footprints were photographed at the scene, but Williams's boots did not appear to match any of the footprints. Further, Williams's pants did not have any mud on them consistent with having caused the "knee prints" located at the scene. Even if one considers this as contrary evidence, the failure of the police to link Williams to the crime with fingerprint evidence or match Williams's boots to the footprints at the scene does not establish the jury's verdict was so contrary to the great weight and preponderance of the evidence that the verdict was manifestly unjust or clearly wrong. The evidence is factually sufficient. Williams's second point of error is overruled.
We affirm the judgment.
Bailey C. Moseley
Justice
Date Submitted: June 9, 2008
Date Decided: June 10, 2008
Do Not Publish
1. We note that Williams cites Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004), as the current standard of review. Zuniga was overruled by the Texas Court of Criminal Appeals in Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006).