Opinion
NO. 14-21-00533-CR
05-25-2023
Andrew Earl JACKSON, Appellant v. The STATE of Texas, Appellee
Jani J. Maselli Wood, for Appellant. Kim K. Ogg, Houston, Jessica Alane Caird, Patricia McLean, for Appellee.
Jani J. Maselli Wood, for Appellant.
Kim K. Ogg, Houston, Jessica Alane Caird, Patricia McLean, for Appellee.
Panel consists of Justice Spain, Justice Poissant and Justice Wilson
Randy Wilson, Justice
In one issue, Andrew Earl Jackson, appellant, appeals his conviction for burglary of a motor vehicle, contending that the evidence at trial was legally insufficient to support his conviction. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On July 1, 2020, the complainant Shanker Ayyer went to have a stamp made during his lunch hour at an OfficeMax off Interstate 10 in the Marshall's Plaza. He locked his dark gray Lexus, and roughly 15 minutes later returned to find the window of his car smashed. He discovered two bags missing—one uniquely colored brown bag and a black bag. Both bags were filled with papers, important to his work and reputation as a certified public accountant, but no money was in the bags. Complainant was not the first to notice something amiss in the parking lot in connection with his vehicle; two bystanders became suspicious of activity they had notice near the complainant's car and prompted law enforcement to be dispatched. The suspects to the break-in had been identified as traveling in a "gold SUV" which had been parked "strangely close" to complainant's car, and an investigation ensued. Shortly thereafter, the gold SUV was located and appellant was in the driver's seat. Appellant was charged by information with burglary of a motor vehicle.
Though he pleaded "true" to two enhancement paragraphs based on former convictions, appellant pleaded not guilty and the guilt-innocence phase of his case was tried to a jury. During this phase, the State put on its case through one photograph and the testimony of five witnesses: the complainant, the two witnesses in the parking lot, and two law enforcement officers who responded to the calls. The jury convicted appellant as charged. The trial court heard evidence and assessed punishment at one year in the Harris County Jail. Appellant timely filed notice of appeal and the trial court certified his right of appeal.
II. SUFFICIENCY OF THE EVIDENCE
Appellant's sole complaint is that the evidence at trial was legally insufficient to support the elements of his burglary of a motor vehicle conviction. Specifically, he argues that the evidence does not prove beyond a reasonable doubt that he intended to promote or assist in the commission of the offense.
A. Standard of Review and Legal Standards
In evaluating this complaint, we view the evidence in the light most favorable to the verdict. Wesbrook v. State , 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on appeal is not whether we, as a court, believe the State's evidence or believe that appellant's evidence outweighs the State's evidence. Wicker v. State , 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State , 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The jury "is the sole judge of the credibility of the witnesses and of the strength of the evidence." Fuentes v. State , 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe or disbelieve any portion of the witnesses's testimony. Sharp v. State , 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the jury resolved conflicts in favor of the prevailing party. Turro v. State , 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State , 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).
A person commits burglary of a vehicle if, without the effective consent of the owner, he breaks into or enters a vehicle or any part of a vehicle with intent to commit any felony or theft. Tex. Penal Code § 30.04(a). "[E]nter" is defined under this provision to mean "to intrude" either "any part of the body, or any physical object connected with the body." Id. § 30.04(b).
A person is criminally responsible as a party to an offense 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. Id. § 7.02(a)(2).
The information against Appellant alleged that on or about July 1, 2020 Appellant "did then and there, unlawfully, with intent to commit theft, break into and enter a vehicle owned by [Complainant] a person having a greater right to possession of the vehicle than the Defendant ..., without the effective consent of the Complainant, namely, without any consent of any kind."
The jury instructions tracked the language of the information consistent with the statutory definition of the offense and provided relevant statutory definitions. The instructions also included several paragraphs, consistent with the relevant statute pertaining to the law of parties:
Each party to an offense may be charged with commission of the 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. 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 or encourages, aids or attempts to aid the other person to commit the offense. Mere presence alone will not constitute one a party to a crime.
Therefore, if you believe from the evidence beyond a reasonable doubt that on or about the 1st day of July, 2020, in Harris County, Texas, another person, namely, an unidentified person, did then and there unlawfully, with intent to commit theft, break into and enter a vehicle owned by [Complainant], a person having a greater right to possession of the vehicle than the defendant and hereafter styled the Complainant, without the effective consent of the Complainant, namely, without any consent of any kind and the defendant, [Appellant], in the course of such conduct by an unidentified person, then and there with intent to promote or assist the commission of the burglary of a motor vehicle by an unidentified person, did aid, assist, or encourage an unidentified person in the commission of the burglary of a motor vehicle while an unidentified person was committing the burglary of a motor vehicle, then you will find the defendant guilty.
If you do not so believe, or if you have a reasonable doubt thereof, you will find the defendant not guilty.
To determine whether an individual is a party to an offense, the reviewing court may look to "events before, during, and after the commission of the offense." Gross v. State , 380 S.W.3d 181, 186 (Tex. Crim. App. 2012) (citing Wygal v. State , 555 S.W.2d 465, 468–69 (Tex. Crim. App. 1977) ). A court may also rely on circumstantial evidence to prove party status. Id. There must be sufficient evidence of an understanding and common design to commit the offense. Guevara v. State , 152 S.W.3d 45, 49 (Tex. Crim. App. 2004) (citing Cordova v. State , 698 S.W.2d 107, 111 (Tex. Crim. App. 1985) ). Each fact need not point directly to the guilt of the defendant, as long as the cumulative effect of the facts are sufficient to support the conviction under the law of parties. Id.
B. Was there legally sufficient evidence of the charged offense to support the jury's guilty verdict?
The facts are largely undisputed. Complainant testified that he locked his vehicle in a Marshall's parking lot and confirmed that no one had his consent to go into his vehicle and take his belongings. The first witness, Sina Gharib-Khalkal testified that he was in his vehicle in the parking lot when he saw from about 20 feet away broken glass from the window of the Lexus. Gharib-Khalkal testified that he then saw a man come out of the Lexus with a bag and get into the gold vehicle parked next to it. From this evidence a rational fact finder could have concluded that the testimony at trial established the breaking and entry of complainant's vehicle without his consent.
The second witness, Tonya Spivey, testified that she was driving in the same parking lot when she saw the gold SUV "kind of parked strangely close" to the Lexus. Spivey explained that it was "just odd how [the gold SUV] was situated." Spivey saw the man standing close between the two vehicles and saw that his arm was inside the passenger side of the Lexus. Another man was driving the SUV. Spivey testified when she and the man standing between the vehicles "kind of made eye contact, I guess it kind of spooked him." She explained that man hopped into the gold SUV and the vehicle drove off.
Both Spivey and Gharib-Khalkal testified that they followed the gold SUV as it was exiting parking lot. Spivey took a picture of the vehicle and its license plate, returned to the area near the complainant's vehicle, contacted the security guard, and waited for the complainant to return. Gharib-Khalkal continued to follow the gold SUV while he called 9-1-1. Gharib-Khalkal testified that he followed the gold SUV and kept it in his sight until the police arrived and arrested appellant and the man seen taking the bags. Gharib-Khalkal testified that as he followed the gold SUV he observed it leave the Marshall's parking lot and drive to a dumpster where there was a nearby gun store, "dump stuff" including "a bag that they had grabbed" into "one of those large trash can bins", then proceeded to a nearby Saltgrass Steak House parking lot where appellant and the other occupant of the vehicle were arrested. Police officers testified that the bags were recovered from the dumpster. Complainant described the two bags and the fact that they were missing when he returned to his car, and when he arrived to meet the police he identified the bags the officers presented him that had been recovered. From this evidence a rational fact finder could have concluded that the testimony at trial established that complainant's bags were stolen in the course of the break-in of complainant's vehicle.
Testimony demonstrated that appellant was in the gold SUV's driver's seat during the break-in up to the time of his arrest, and that by driving the vehicle he assisted the other suspect in carrying out the offense. Gharib-Khalkal testified when he witnessed the man get out of the gray SUV and get into the second adjacent vehicle, the gold SUV, that he saw another person in the driver's side of the vehicle whom he described as an African American male. The police officer testified when police arrived and ordered the occupants out of the car, appellant was pulled from the driver's seat. One of the officers involved in making the arrest identified appellant at trial as the driver of the vehicle.
Appellant contends there was a lack of evidence proving his intent to assist in the burglary of complainant's car and insists the proof showed nothing more than "mere presence." However, Spivey's testimony that the gold vehicle was parked "strangely close" to the complainant's vehicle and her description that it was "odd how it was situated" is particularly significant to differentiate this case from a "mere presence" case. The jury could reasonably conclude that appellant, as the driver of the vehicle, was responsible for situating the vehicle in close proximity to complainant's vehicle with the goal of making the burglary easier to accomplish, limiting the distance the other man would have to travel before breaking into complainant's car, limiting his visibility to the public and expediting a plan to promptly get away. See Johnson v. State , 421 S.W.3d 893, 898 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (evidence of coordinated movements was probative of prior or contemporaneous plan to commit offense).
Moreover, the post-burglary sequence is also significant. Evidence showing that appellant drove the man who broke into complainant's car away from the scene of the burglary, then stopped at a dumpster where the stolen items were discarded, then continued driving to another parking lot, provided circumstantial evidence that appellant was not merely leaving the scene of the burglary at the same time with the other man, but was acting with the other man according to a plan or common purpose. Barrientos v. State , 539 S.W.3d 482, 490 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (concluding evidence sufficient to satisfy statutory elements of party-responsibility where jury was presented facts relevant to defendant's participation or assistance before, during, and after murder).
Appellant relies significantly on the recent holding by the Court of Criminal Appeals involving the law of parties as applied to the wife of a husband who had been sexually assaulting their daughter. Metcalf v. State , 597 S.W.3d 847, 859 (Tex. Crim. App. 2020). In that case the mother took action to separate her daughter and husband upon discovering husband sexually assaulting her daughter, but there was no evidence upon which the jury could reasonably infer that the wife had known before that discovery that her husband had been sexually assaulting their daughter previously. Id. at 859 (daughter's statements to mother that father was a "monster" and was doing "bad things" were noted as "incredibly troubling" but were too ambiguous to support a reasonable inference that the mother knew that father's sexual assaults had occurred). The Court held that evidence was legally insufficient to prove the defendant acted as a party to her husband's sexual assault of their daughter. Id. at 851, 860-61. Though the crimes and relationships at issue make the cases hardly comparable, even under the strictest analogy the legally operative differences are stark: the manner in which appellant parked the car, the appellant's participation in the getaway, and his involvement in the bag disposal illustrate coordination between appellant and the other suspect that make this case inapposite to Metcalf where evidence of such coordination was absent.
Viewing the evidence in the light most favorable to the verdict, we conclude that a rational fact finder could have found beyond a reasonable doubt each element necessary to support the finding that appellant committed the offense of burglary of a vehicle. Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979) ; Barrientos v. State , 539 S.W.3d at 490. Accordingly, we hold that the evidence was sufficient to support the judgment of conviction.
We overrule appellant's sole issue on appeal.
III. CONCLUSION
Concluding appellant's sole issue provides no basis for relief, we affirm the trial court's judgment.
(J. Spain, concurring).
CONCURRING OPINION
Charles A. Spain, Justice
I concur in the court's judgment and join the court's opinion, but I write separately to address a case the State cites from this court, Draper v. State , 681 S.W.2d 175 (Tex. App.—Houston [14th Dist.] 1984, pet. ref'd).
The State cited Draper in support of the proposition that appellant has criminal responsibility for the conduct of another. Tex. Penal Code Ann. § 7.02(a)(2) :
Additionally and alternatively, appellant was guilty as a party to the burglary. Under section 7.02 of the Penal Code, a defendant is guilty as a party to an offense when he is physically present at the commission of the offense and encourages the commission by words or agreement. Porter v. State , 634 S.W.2d 846, 849 (Tex. Crim. App. 1982). Such an agreement to act together in committing an offense may be established by circumstantial evidence. Medrano v. State , 658 S.W.2d 787, 791 (Tex. App.—Houston [1st Dist.] 1983, pet. ref'd). In determining whether appellant participated
as a party, the fact finder may consider events before, during, and after the offense and may rely on actions indicating an understanding to do a certain act. Strelec v. State , 662 S.W.2d 617, 619 (Tex. App.—Houston [14th Dist.] 1983, no pet.).
Draper v. State , 681 S.W.2d at 178.
The problem with Draper is that while it cites Penal Code section 7.02, Draper is silently based on former Penal Code article 66, which defined principal offenders to an offense:
Art. 66. [75] Encouraging.— When an offense is actually committed by one or more persons, but others are present, and knowing the unlawful intent, aid by acts or encourage by words or gestures, those actually engaged in the commission of the unlawful act, or who, not being actually present, keep watch so as to prevent the interruption of those engaged in committing the offense, such persons so aiding, encouraging or keeping watch are principal offenders.
1925 Penal Code and Code of Criminal Procedure, 39th Leg., R.S., § 1 (Penal Code), art. 65, 1925 Tex. Crim. Stat. 2, 12, repealed by Act of May 24, 1973, 63d Leg., R.S., ch. 399, § 3(a), 1973 Tex. Gen. Laws 883, 991.
The current Penal Code, which was in effect when Draper was handed down, explicitly abolished the traditional distinctions between accomplices and principals. Tex. Penal Code Ann. § 7.01(c). Currently 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. Tex. Penal Code Ann. § 7.01(a).
This court in Draper used the language of repealed 1925 Penal Code article 66 and miscited it to current Penal Code section 7.02. We were mistaken then, and while the majority wisely does not cite Draper today, the court should acknowledge our mistake now so that the bench and bar are wary of citing Draper without explaining why it nonetheless remains good authority.