No. 05-07-01637-CR
Opinion Filed June 15, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 7, Dallas County, Texas, Trial Court Cause No. F07-01231-XY.
Before Justices MORRIS, WRIGHT, and BRIDGES.
Opinion By Justice WRIGHT.
Jack Roy Bailey, Jr. appeals his conviction for burglary of a building. After the jury found appellant guilty, it assessed punishment, enhanced by two prior convictions, at six years' confinement. In two issues, appellant contends: (1) the evidence was legally insufficient to establish that appellant participated in a burglary; and (2) the trial court erred by instructing the jury regarding the law of parties. We overrule appellant's issues and affirm the trial court's judgment.
BACKGROUND
Police officer Scott Young testified that he and four other officers conducted surveillance on a four-block area in Dallas known as the "M Streets" in September 2007. The officers hoped to find the people responsible for a string of burglaries in the area. The burglars had targeted detached garages and business sheds. At roughly 4:25 a.m., Young observed a Grand Prix drive slowly down Morningside Street and stop in front of a house. Appellant exited the vehicle. Anthony Maceto and Akua Ohene-Bekoe remained inside the Grand Prix. Young watched as appellant walked up the street then cut through a yard and disappeared behind a house. Three or four minutes later, appellant came back carrying a saw and a black bag. Young advised the other officers that appellant was walking back to the Grand Prix. Those officers, who were in unmarked vehicles, asked patrol officers to follow the vehicle and then pull it over. When officers stopped the car, they found a black bag and a saw on the rear floorboard. A drill was inside the black bag. Meanwhile, Young followed appellant's path to attempt to identify which home the tools came from. About five houses down the street, he saw a driveway leading to a detached garage with an open pedestrian door. John Nicolli testified that he has a detached garage on his property in the M Streets. He was in the garage the evening of September 25, 2007, and nothing was missing. At around 6:30 a.m. the next morning, police officers rang his doorbell. After leading him to the garage, they asked him if anything was missing or out of place. Nicolli told officers that his saw and drill were missing and that a bicycle had been moved from its resting place against a wall to the front of the garage. The saw and drill had been about eight to ten feet inside the garage sitting next to a workbench. The items were too far from the door for anyone to retrieve them without entering the garage. Nicolli later identified the saw and drill recovered from the Grand Prix as his property. He also testified that he did not know appellant, Maceto, or Ohene-Bekoe and did not give any of them permission to enter the garage or take any of his property. Akua Ohene-Bekoe, the driver of the Grand Prix, testified that she agreed to give appellant a ride to pick up money from his ex-boss and learned of the burglary only after the police pulled her over. After she parked the Grand Prix at a location on the M Streets, appellant left the vehicle for about fifteen minutes before returning with a black bag. Appellant testified that although he knowingly retrieved the stolen tools, he did not enter Nicolli's garage. He claims that on the night of September 25, 2007, Ohene-Bekoe and Maceto came to visit him at his apartment complex. Maceto pulled him to the side and told him that he broke into a garage and stashed the items he stole by a tree near the garage. He asked appellant to retrieve the items because he did not want Ohene-Bekoe to know about the burglary. Appellant agreed and in the early morning hours of September 26, retrieved the items from the yard. Appellant also testified he knew Maceto before the burglary. It was not the first time Maceto called him and told him he had some "stuff" for him. Appellant explained that one of the reasons he steals is to pay for his drug habit. He did not dispute any of the testimony of Officer Young or Ohene-Bekoe. After hearing this and other evidence, the jury found appellant guilty of burglary of a building. This appeal followed. SUFFICIENCY OF THE EVIDENCE
In his first issue, appellant challenges the legal sufficiency of the evidence. He claims the evidence is legally insufficient because there was no evidence that he entered the building or helped his friend enter the building. The State argues there was evidence at trial to show that appellant and Maceto entered into an agreement to commit burglary in which appellant's role was to remove the stolen property. When considering a challenge to legal sufficiency of the evidence, we review the evidence in the light most favorable to the verdict. Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App. 1991). We determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Laster v. State, 275 S.W.3d 512, 517 (Tex.Crim.App. 2009). To support a conviction for burglary of a building, the State must prove that a person, without the effective consent of the owner, entered a building not then open to the public with the intent to commit theft. Tex. Penal Code Ann. § 30.02(a)(1). The trial court's instructions to the jury included the law of parties. Under the law of parties, a person may be convicted as a party to the offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or both. Tex. Pen. Code Ann. § 7.01(a) (Vernon 2003). A person is criminally responsible for an offense "committed by the conduct of another" if, acting with the intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 2003). To determine if a person acted as a party to an offense, the trier of fact may look to events occurring before, during, and after the offense. Salinas v. State, 163 S.W.3d 734, 739-40 (Tex.Crim.App. 2005) . However, there must be evidence of a common purpose or design prior to, or contemporaneous with the criminal event. Urtado v. State, 605 S.W.2d 907, 911 (Tex.Crim.App. 1980). In a burglary, the criminal event is complete once unlawful entry is made, regardless of whether or not the intended theft is actually completed. Richardson v. State, 888 S.W.2d 822, 823 (Tex.Crim.App. 1994). Participation in the offense may be inferred from circumstantial evidence and need not be shown by direct evidence. Beardsley v. State, 738 S.W.2d 681, 684 (Tex.Crim.App. 1987). If the jury charge provides that the jury may find the defendant guilty as either a principal or a party to the offense, the evidence is legally sufficient if it supports either theory. Sorto v. State, 173 S.W.3d 469, 472 (Tex.Crim.App. 2005). After reviewing the record, we conclude the evidence is legally sufficient to support appellant's conviction for burglary of a building as a party. Thus, we need not determine if the evidence is sufficient to find that appellant was guilty as a principal. Appellant contends that the State failed to meet its burden for the element of entry. He acknowledges that a burglary was committed and that he knowingly transported the stolen property. However, appellant claims that he transported the stolen property only after the commission of the burglary was complete, and he never agreed to assist Maceto with the burglary. In support of his argument, appellant relies on Boudreaux v. State, 757 S.W.2d 139 (Tex.App.-Houston [1st Dist.] 1988, pet. ref'd). In Boudreaux, the court found the evidence was insufficient to sustain a conviction for burglary of a habitation because there was no evidence to show an agreement prior to or contemporaneous with the burglary. Id. at 145. By the time the defendant arrived at the victim's home, the burglary was complete. Id. The court noted that not only did the State fail to provide evidence of an agreement to commit the offense but failed to provide evidence that the two parties even knew each other before the burglary. Id. In contrast to Boudreaux, here, there is evidence to enable a reasonable trier of fact to conclude beyond a reasonable doubt that there was an agreement between appellant and Maceto to commit the burglary. Officer Young testified that he conducted surveillance because of other burglaries of detached garages and business sheds in the area. Officers believed that once a burglary occurred, the burglars transported the stolen items in a car and exited the area through the south side of the M Streets. Officer Aleman testified that the Grand Prix was exiting the area headed southbound when he and his partner pulled it over, consistent with the officers's theory of the previous burglaries. Appellant himself testified that he had an existing relationship with Maceto and this was not the first time Maceto contacted him and said that he had some "stuff" for him. Appellant was stealing to finance his drug habit. In relation to the burglary of Nicolli's garage, he further testified to agreeing to "run a game" on Maceto's girlfriend by lying to her about the true nature of their trip to the M Streets. The State offered sufficient evidence for the jury to infer beyond a reasonable doubt that appellant and Maceto had an ongoing relationship and a common purpose and design whereby Maceto would enter a building and steal items and appellant would retrieve the stolen property. The jury chose to disbelieve appellant's testimony that there was an agreement to commit the burglary only after its commission. Reviewing the evidence under the appropriate standard, we conclude the evidence is legally sufficient to support appellant's conviction. We overrule appellant's first issue. JURY INSTRUCTION ON LAW OF PARTIES
In his second issue, appellant alleges the trial court erred by instructing the jury regarding the law of parties. Again, we disagree. An instruction on the law of parties may be given whenever there is sufficient evidence to support a jury verdict that the defendant is criminally responsible under the law of parties. Ladd v. State, 3 S.W.3d 547, 564 (Tex.Crim.App. 1999). Appellant argues that there was no evidence that Maceto and appellant acted together at the time of the offense. However, the evidence is legally sufficient for the reasons previously discussed. We overrule appellant's second issue. Accordingly, we affirm the trial court's judgment.