Opinion
No. 05-10-00808-CR
01-17-2012
RHONDA BOOK, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM and Opinion Filed January 17, 2012
On Appeal from the Criminal District Court No. Two
Dallas County, Texas
Trial Court Cause No. F07-47080-I
OPINION
Before Justices Bridges, O'Neill, and Fillmore
Opinion By Justice Fillmore
A jury convicted appellant Rhonda Book of burglary of a building. The trial court sentenced Book to two years' imprisonment, suspended the sentence, placed Book on community supervision for a period of five years, and ordered restitution in the amount of $1,848. In four issues, Book contends (1) the evidence was insufficient to connect her to any stolen property, (2) the evidence was insufficient to establish Cheryl Riley as the special owner of the building, (3) the trial court abused its discretion by including the value of an air conditioner unit in the amount of restitution, and (4) the trial court erred by failing to specify the person who should receive restitution. We affirm the trial court's judgment.
Factual Background
Information concerning the testimony of key trial witnesses, the jury verdict, and the sentence imposed by the trial court is recited below to provide context for our analysis of appellant's issues.
Testimony of Mark Frazier
On June 28, 2007, Mark Frazier (Mark), was inside his home when he heard the barking of dogs. Alerted by the barking dogs, Mark looked outside and saw a gray Honda automobile parked in the street. He recognized the gray Honda as an automobile belonging to Book, who had been a neighbor for about a year. There was a female in the street near the gray Honda. He also observed Book and a male exiting the side door of a house across the street owned by Verna Riley (Verna). Mark had previously seen the male, and the female standing in the street, at the house where Book lived; he believed they all lived together. Mark identified Book in court.
Mark was concerned at the sight of Book and the man exiting the side door of Verna's house because they were "carrying stuff" to Book's gray Honda. Mark did not believe Book and the man belonged in the house because the house had been vacant for some time. The man carried a box that looked like a microwave oven as well as boxes containing items Mark could not identify. Book carried blankets, sheets, and "stuff like that" in her hands. Mark saw Book and the male place the items carried from Verna's house in the trunk of Book's gray Honda and then depart from the scene in the vehicle.
Mark phoned the police and provided information concerning the identity of Book, including her name and a distinctive physical characteristic, and the model of car she was driving. When police arrived at the scene, Mark accompanied them into Verna's house. The police officers inspected the premises, examined an air-conditioner unit on the floor of one of the rooms, took photographs, and "dusted" for fingerprints. Mark wrote a statement for the police in which he indicated a man and woman had stolen a "microwave and other stuff" from Verna's home, and he provided an address for Book on nearby Dewberry Street.
Police officers were called to Verna's house a second time on June 28, 2007. Mark testified that when his mother, Cynthia Frazier (Cynthia), arrived home from work, she yelled to him to call the police; he did so, informing the police that Book and the male were at Verna's house for the second time that day. Mark testified that on this occasion, the male was cursing at Cynthia in the presence of Book.
Testimony of Cynthia Frazier
Cynthia testified that after returning from work on the afternoon of June 28, 2007, she saw people at Verna's house who did not belong there. Cynthia explained that Verna's home was then vacant because Verna was recovering from surgery. As Cynthia went to talk to a redheaded female standing at the end of the driveway on Verna's property, she saw a male and female leaving Verna's house through the side door. The man held a box covered with a blanket, however Cynthia did not see what was under the blanket. Cynthia recognized Book "right off." Cynthia knew Book by name because she delivered mail to Book's prior address and would periodically speak to Book. Cynthia identified Book in court. Cynthia indicated she did not recognize the man who was with Book.
Cynthia told Book and the man coming out of Verna's house that "they didn't have any business there" and that they "need to leave." Cynthia shouted to her son, Mark, to call the police. Although Cynthia attempted to engage Book and the man in conversation, both Book and the man left the premises on foot before the police arrived. According to Cynthia, Book and the man were at the nearby house Book rented. The man Cynthia saw exiting Verna's house lived at the house rented by Book.
Cynthia called Verna's daughter, Cheryl Riley (Cheryl) to inform her about the incident at Verna's house. When Cheryl arrived at the scene, Cynthia, Cheryl, and two police officers entered Verna's house. At trial, Cynthia identified on a photograph the location in Verna's home of a missing air-conditioning unit, a space covered in the photograph with a piece of wood.
Testimony of Cheryl Riley
Cheryl testified that Verna's house was vacant because Verna was living with her sister while recovering from surgeries. Cheryl explained that in Verna's absence, she was responsible for the care, custody, and control of Verna's house and yard. Cheryl indicated she was the only person who had authority to permit entry to the home or removal of personal property from the home, and she had not granted such permission to any person.
On June 25, 2007, a few days before the burglary at issue in this case, Cheryl received a telephone call that something did not look right at Verna's house. Cheryl visited the house and found, among other things, that someone had damaged the kitchen door to gain entry, a kitchen table had been moved, an air-conditioner unit had been removed from a wall and was torn apart, and a television was missing. Cheryl reported the burglary to the police on June 25, 2007. A June 25, 2007 police call report concerning this incident was introduced in evidence.
On June 28, 2007, Cynthia called Cheryl and informed her that Verna's house had been broken into. Cheryl testified that she went to her mother's home and saw damage in addition to the damage she observed on June 25, 2007. The exterior of the house had incurred damage and the interior of the house appeared to have been ransacked. A microwave oven was missing. Someone had tried to take the hot water heater out of the wall and "tried to get another air-conditioner out of a window, but they didn't have any luck." Closet and dresser drawers had been gone through, and there was a large hole in the ceiling above the washer and dryer. The following weekend, Cheryl brought Verna to her home. Police officers also returned to the house that day to locate fingerprints and take additional photographs. At that time, Cheryl determined that additional items of personal property were missing from Verna's home, and she reported the missing items to the police.
Testimony of Officer Somerville
Katherine Somerville (Officer Somerville), was employed as a police officer by the city of Wilmer on June 28, 2007. Officer Somerville testified that she and her partner, Officer Tony Shaw (Officer Shaw), responded to a burglary call at Verna's address. When the officers arrived, Mark, the individual who had called in the matter, was waiting in the street. The officers spoke with Mark and determined that the suspects were not at the scene.
Mark told the police officers that a female, whom he identified as Book by name and by a distinctive physical characteristic, and a male he had seen in the neighborhood had gone into Verna's house. Mark stated he saw Book carrying a microwave oven out of Verna's house. Mark pointed out to the police officers the house where Book lived and described to the officers the type of vehicle Book drove.
After speaking with Mark, Officers Somerville and Shaw entered Verna's house in order to determine where entry was made, what had been disturbed, and the state of the house. There were several items in the house that "looked like they had been disturbed." There were imprints in the dust indicating the locations of missing items, drawers in bedroom furniture had been opened, and it appeared the house had been ransacked. A water heater "or something of that nature" had been pulled out, and it appeared a copper coil had been taken from the appliance. Officer Shaw took a statement from Mark at that time.
Officer Somerville received a second call to respond to Verna's house about thirty minutes after she left the scene, indicating the suspects had returned to the location. When Officers Somerville and Shaw responded to the second call, they located a gray Honda parked at a house on Dewberry Street. The officers made contact with the suspects at that house and obtained identification from them. The officers then returned to Verna's address. They spoke with Mark and Cynthia and obtained the telephone number for Cheryl, Verna's daughter. When Cheryl arrived at the scene, Officer Somerville went into Verna's house with her. Cheryl pointed out that a microwave oven and other items of personal property were missing from the home. Cheryl said she would provide the police a list of items, in addition to the microwave oven, that were missing from Verna's house.
Officer Somerville then arrested Book. Book had bruising on her arm that she told Officer Somerville resulted from moving. Book had two "curtain pieces" and some nails in her pocket, which Officer Somerville thought suspicious because some of the curtains at Verna's house were "messed up," with some of the pieces missing.
Officer Somerville tried to obtain fingerprints a few days later, but it was extremely difficult because of the dust and heat in Verna's house. The State stipulated that the only fingerprint of sufficient quality for purposes of comparison did not match Book's fingerprints.
Jury Verdict and Sentence Imposed by Trial Court
The jury convicted Book of burglary of a building. The trial court sentenced Book to two years' imprisonment, suspended the sentence, placed Book on community supervision for a period of five years, and ordered restitution in the amount of $1,848. Sufficiency of Evidence to Connect Book to Stolen Property
In her first point of error, Book contends the evidence was insufficient to connect her to any property stolen from Verna's home on June 28, 2007. The State responds that the evidence was legally sufficient to connect Book to the burglary of certain property, and the jury was entitled to infer from direct and circumstantial evidence that Book, as principal or party, entered Verna's home and acquired or otherwise exercised control over Verna's personal property.
We review the sufficiency of the evidence under the standard set out in Jackson v. Virginia, 443 U.S. 307 (1979). Adames v. State, No. PD-1126-10, 2011 WL 4577870, at *3 (Tex. Crim. App. Oct. 5, 2011). We examine all 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 offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Adames, 2011 WL 4577870, at *4. This standard recognizes "the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319; see also Adames, 2011 WL 4577870, at *4. The jury, as the fact finder, is entitled to judge the credibility of the witnesses, and can choose to believe all, some, or none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). We defer to the jury's determinations of credibility, and may not substitute our judgment for that of the fact finder. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (in conducting legal sufficiency analysis, appellate court "may not re-weigh the evidence and substitute [its] judgment for that of the jury"). In order to address Book's issue on appeal, we must determine whether the evidence presented to the jury, viewed in the light most favorable to the guilty verdict, was sufficient for a rational jury to "connect" Book to property stolen from Verna's home on June 28, 2007. Ordinarily, to hold evidence legally sufficient to sustain a conviction for burglary of a building, the evidence must demonstrate that a person, without the effective consent of the owner, entered a building and committed or attempted to commit a felony, theft, or an assault. Tex. Penal Code Ann. § 30.02(a)(3) (West 2011). However, penal code sections 7.01-.02 allow an individual to be charged as a party to an offense and to be held criminally responsible for the conduct of another when that individual acts in concert with another person in committing an offense. Tex. Penal Code Ann. §§ 7.01-.02 (West 2011). Circumstantial evidence alone may be used to prove that a person is a party to an offense. Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim. App. 2006).
The trial court's instructions to the jury included the law of parties. The jury charge included the following "parties definition":
All persons are parties to an offense who are guilty of acting together in the commission of an offense. 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 both.Where, as here, 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).
Each party to an offense may be charged with the commission of the offense.
A person is criminally responsible for an offense committed by the conduct of another if, acting with 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. Mere presence alone will not constitute one as a party to an offense.
Evidence at trial included the eyewitness account from Mark regarding the personal property that Book and the male were carrying out of Verna's house: the male was carrying a box that looked like a microwave and boxes with items Mark could not identify and Book had blankets, sheets, and "stuff like that" in her hands. Mark testified to witnessing Book and the male placing the things they carried out of Verna's house in the trunk of Book's gray Honda before leaving in that vehicle. Mark provided a written statement to the police in which he indicated a man and the woman identified as Book stole a "microwave and other stuff" from Verna's home. Cynthia testified that she witnessed a male and Book exiting Verna's house, and the man had a box covered with blankets in his hands. Cheryl testified that a microwave oven and other items were missing from Verna's house following the burglary of June 28, 2007.
Viewing the evidence in the light most favorable to the jury's finding Book guilty of burglary of a building, the jury was entitled to infer from the direct and circumstantial evidence that Book entered Verna's home without effective consent and that she acquired or otherwise exercised control over Verna's personal property. Based on the record, we conclude a rational trier of fact could have found that Book, as principal or party, entered Verna's home and acquired or otherwise exercised control over Verna's personal property. We resolve Book's first issue against her.
Owner of the Burglarized Building
In her second point of error, Book asserts the evidence was insufficient to establish Cheryl as the special owner of the building. Book contends there was a material variance between the indictment's allegation that Cheryl was a special owner of the burglarized building and the proof of ownership of the building at trial. Book contends the evidence showed that the special owner may have been the neighbor across the street from Verna's home, Cynthia. The State responds that in the indictment, it was entitled to allege either Verna, the actual owner, or Cheryl, the special owner, as owner of the building and prove the owner alleged in the indictment at trial, and there was no variance between the ownership allegation in the indictment listing Cheryl as the special owner, and the State's evidence at trial proving Cheryl as the special owner.
Penal code section 30.02(a)(3) provides that a person commits an offense if, without the effective consent of the owner, the person enters a building or habitation and commits or attempts to commit a felony, theft, or an assault. Tex. Penal Code Ann. § 30.02(a)(3) (West 2011). "Owner" means a person who "has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor." Tex. Penal Code Ann. § 1.07(a)(35) (West 2011); see also Tex. Penal Code Ann. § 1.07(a)(39) ("Possession" is actual care, custody, control, or management."). Article 21.08 of the code of criminal procedure provides that where one person owns the property and another has possession of the property, ownership of the property may be alleged to be in either. Tex. Code Crim. Proc. Ann. art. 21.08 (West 2009); Walling v. State, 437 S.W.2d 563, 564 (Tex. Crim. App. 1969) (provisions of article 21.08 as to ownership apply alike to special owners, as well as general owners); see also Krause v. State, 243 S.W.3d 95, 103 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd) (for purposes of burglary statute, ownership of a building or habitation is not restricted to those persons having title interest in the property, but can include those in possession).
Here, ownership of the burglarized building was alleged to be through the special owner, Cheryl. The indictment charges in relevant part that Book "did then and there intentionally and knowingly enter a habitation without the effective consent of Cheryl Riley, the owner thereof, and did then and there commit a theft." It was incumbent upon the State to prove, as alleged in the indictment, that Cheryl was a special owner of the house and that she had not given her effective consent to Book's alleged entry into the house. See Gilbreath v. State, 158 Tex. Crim. 616, 617, 259 S.W.2d 223, 224 (1953) (State has the burden of proving "the allegation of ownership as laid in the indictment"). The record confirms that the evidence established Cheryl was a special owner of the house and she had not given her effective consent to Book's entry into the house. The evidence at trial established that Verna, the title owner of the house and mother of Cheryl, had been living with relatives for some time prior to the June 28, 2007 burglary while convalescing from surgeries. Cheryl testified that she, and no one else, had been entrusted with the care, custody, and control of her mother's home during her mother's absence. Although the neighbor Cynthia testified that her husband mowed the yard at Verna's house, and Cynthia's son, Mark, testified he had cut the grass at Verna's house, Cheryl testified that she and her two sons did the yard work at her mother's home.
The indictment charged burglary of a habitation. The jury found Book guilty of burglary of a building. Burglary of a building can be a lesser included offense of burglary of a habitation. See, e.g., Allison v. State, 618 S.W.2d 763, 764 (Tex. Crim. App. 1981). Here, burglary of a building is an offense established by proof of the same or less than all of the facts required to establish burglary of a habitation as charged in the indictment. See Tex. Code Crim. Proc. Ann. art. 37.09(1) (West 2006).
Cheryl testified that at the time of the June 28, 2007 alleged burglary, no one else shared access to Verna's house. She testified she gave no one permission to enter her mother's house or yard or to move or take anything from house, and she testified that she was the only person who had the authority to give such permission. After the June 28, 2007 burglary, she gave Cynthia a key to Verna's house to "sort of watch the house," and Cynthia testified at trial that she had a key to the house.
Book's claim of variance is without merit. It is not contested that Verna is the title owner to the burglarized building. Nor does Book contest that the State may allege ownership in either the actual owner of property or another person who had possession and control of the property. See Tex. Code Crim. Proc. Ann. art. 21.08; Araiza v. State, 555 S.W.2d 746, 746-47 (Tex. Crim. App. 1977) (Under article 21.08, State is free to allege ownership in either actual owner of property or in another person who has possession of the property).
Book contends the indictment would leave her subject to re-prosecution for the same conduct because the State could allege in a second prosecution that Verna was the owner of the building. We disagree. Book is in no danger of being prosecuted again for burglary of the same house on June 28, 2007 based on an identification of Verna as the building owner. See Ex Parte Cavazos, 203 S.W.3d 333, 337 (Tex. Crim. App. 2006) (complainant is not the appropriate "allowable unit" of prosecution in a burglary, rather the "allowable unit" of prosecution in a burglary is the unlawful entry); see also Gollihar v. State, 46 S.W.3d 243, 258 (Tex. Crim. App. 2001) (appellant was in no danger of being prosecuted again for theft of same cart proved at trial; no indication in record that appellant was misled by allegation of theft of cart or surprised by the proof at trial); United States v. Boston, 718 F.2d 1511, 1515 (10th Cir. 1983) ("The record clearly identifies transactions on which convictions are based, and the entire record, not just the indictment, may be referred to in order to protect against double jeopardy if a subsequent prosecution should occur.").
Here, there was no variance between the allegation of ownership in the indictment and proof of ownership at trial. The State met its burden of proving the allegations as set out in the indictment. The indictment was sufficient to inform Book of the charged offense and to avoid the risk of double jeopardy. See Fuller v. State, 73 S.W.3d 250, 253 (Tex. Crim. App. 2002); Gollihar, 46 S.W.3d at 258. Accordingly, we resolve Book's second point of error against her.
Amount of Restitution
In her third point of error, Book asserts the trial court abused its discretion by including the value of an air conditioner unit in the amount of restitution. At trial, Book objected to the inclusion of $850 in the amount of restitution for an air conditioner unit. In her motion for new trial, Book contended the verdict is contrary to the law and evidence. On appeal, Book contends that the trial court erred in holding her accountable for damage to an air conditioner unit that occurred prior to or during a burglary on June 25, 2007, where Book was found guilty of committing a burglary that occurred on June 28, 2007. In addition to any fine authorized by law, a sentencing court may order the defendant to make restitution to any victim of the offense. See Tex. Code Crim. Proc. Ann. art. 42.037(a) (West Supp. 2011). An appellate court reviews challenges to restitution orders under an abuse of discretion standard. See Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. [Panel Op.] 1980); see also Drilling v. State, 134 S.W.3d 468, 469 (Tex. App.-Waco 2004, no pet.) A trial court abuses its discretion when it acts without reference to any guiding rules or principles or acts arbitrarily or unreasonably, or when its decision is so clearly wrong that it lies outside the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1991) (op. on reh'g).
An abuse of discretion by the trial court in setting the amount of restitution will implicate due process considerations. Campbell v. State, 5 S.W.3d 693, 696 (Tex. Crim. App. 1999). Due process places three limitations on the restitution a trial court may order: (1) the amount must be just and supported by a factual basis within the record; (2) the restitution ordered must be only for the offense for which the defendant is criminally responsible; and (3) the restitution must be only for the victim or victims of the offense for which the defendant is charged. See Drilling, 134 S.W.3d at 470; see also Campbell, 5 S.W.3d at 696-97.
The standard of proof for determining restitution is a preponderance of evidence. Tex. Code Crim. Proc. Ann. art. 42.037(k). The burden of proving the amount of loss sustained by the victim is on the prosecution. Id. The restitution ordered must be "just" and must be supported by sufficient factual evidence in the record. Cartwright, 605 S.W.2d at 289.
Book contends Cheryl's testimony conflicted regarding whether the air conditioner unit was damaged in the burglary that occurred on or before June 25, 2007 or in the June 28, 2007 burglary for which Book was tried. We disagree. We have reviewed the entire record, including Cheryl's testimony regarding the damage to the air conditioner unit. A list compiled by Cheryl of items stolen or damaged in the burglary of Verna's house was admitted in evidence at the punishment phase of the trial. That list included an air conditioner unit valued at $850. Cheryl testified that, to the best of her knowledge, the damage to the air conditioner unit included on the list occurred in connection with the June 28, 2007 burglary. Any confusion regarding Cheryl's testimony on this point was clarified when she clearly testified that the air conditioner unit was damaged in a burglary that occurred June 28, 2007. Following Book's objection to the trial court's inclusion of the value of the damaged air conditioner unit in the amount of restitution ordered, Cheryl was recalled to testify without objection from Book on whether the air conditioner unit was damaged in the burglary that occurred prior to June 28, 2007 or in the burglary of June 28, 2007. She testified that there were two air conditioner units in Verna's house, and the air conditioner listed in the exhibit introduced as evidence of items damaged or taken from Verna's house was, indeed, damaged in the June 28, 2007 burglary.
Based on the record before us, we conclude there is sufficient evidence to support inclusion of the value of the air conditioner unit in the amount of restitution ordered by the trial court. Therefore, the trial court did not abuse its discretion by including the $850 replacement value of the air conditioner unit in the amount of restitution ordered. We resolve Book's third point of error against her.
To Whom Restitution Is to be Made
In her fourth point of error, Book contends the trial court erred in failing to specify the person who should receive restitution. As a condition of community supervision, the trial court ordered Book to make restitution payments for the "loss sustained by the injured party" to the community supervision officer of the trial court. Book contends the trial court erred by failing to specify Verna, the owner of the burglarized home, as the victim to whom restitution payments should be made. The State responds that Book waived this alleged error raised for the first time on appeal.
In the event that the court orders restitution to be paid to the victim, the judgment showing the conviction of a defendant shall reflect the amount of the restitution ordered and the name and address of a person or agency that will accept and forward restitution payments to the victim or, if the court specifically elects to have payments made directly to the crime victim, the name and permanent address of the victim at the time of the judgment. Tex. Code Crim. Proc. Ann. art. 42.01 §1(25) (West Supp. 2011). Here, the order setting forth the terms and conditions of community supervision is incorporated into the trial court's judgment by reference.
Book did not object to this provision of the restitution order at trial or in her motion for new trial. "If a defendant wishes to complain about the appropriateness of (as opposed to the factual basis for) a trial court's restitution order, he must do so in the trial court, and he must do so explicitly." Idowu v. State, 73 S.W.3d 918, 921 (Tex. Crim. App. 2002) (footnote omitted); see Tex. R. App. P. 33.1; Burris v. State, 172 S.W.3d 75, 77 (Tex. App.-Fort Worth 20005, no pet.) (because award of community supervision is a contractual privilege, not a right, conditions imposed by the trial court and not objected to are forfeited on appeal); Maloy v. State, 990 S.W.2d 442, 446 (Tex. App.-Waco 1999, no pet.) (complaint on appeal that trial court should not have ordered restitution to insurance company not preserved since complaint was not made to trial court and would not have been obvious to trial judge).
See Riggs v. State, No. 05-05-01689-CR, 2007 WL 969586, at *4 (Tex. App.-Dallas Apr. 3, 2007, no pet.) (not designated for publication) (in order to preserve error concerning restitution order, defendant must make a timely and specific objection; if defendant wishes to complain about appropriateness of, as opposed to factual basis for, trial court's restitution order, he must do so in the trial court) (citing Idowu, 73 S.W.3d at 921); see also Calder v. State, No 05-10-00092-CR, 2011 WL 1994220, at *7 (Tex. App.-Dallas May 24, 2011, pet ref'd) (not designated for publication).
--------
Book did not preserve this purported error in the accuracy of the restitution order because she failed to make the objection in the trial court. We resolve Book's fourth point of error against her.
Conclusion
Having considered each of Book's points of error and having resolved them all against her, we affirm the trial court's judgment.
ROBERT M. FILLMORE
JUSTICE
Do Not Publish
Tex. R. App. P. 47
100808F.U05