Opinion
No. 05-09-01489-CR
Opinion issued January 18, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 196th Judicial District Court Hunt County, Texas, Trial Court Cause No. 25661.
Before Justices FITZGERALD, MURPHY, and FILLMORE.
OPINION
A jury convicted appellant Douglas Kevin Smith of burglary of a habitation. The trial court found six enhancement allegations to be true and assessed Smith's punishment at sixty years' confinement. In three issues, Smith contends (1) the evidence at trial was legally and factually insufficient to support his conviction, (2) the trial court erroneously dismissed a juror, and (3) the conviction violates his right to be free from double jeopardy. We affirm the trial court's judgment.
Background
Smith became acquainted with William Paschall when both men were serving time in the Rockwall County jail. Paschall testified he had a drinking problem and had incurred a number of convictions for driving while intoxicated. Paschall testified further that while he was in jail, he turned his life around and led a Bible study for other inmates. He encouraged Smith to attend. The record does not contain a clear chronology, but it appears Paschall was released from jail toward the end of 2004. Smith was released just before Thanksgiving of 2005. He called Paschall looking for a ride and a place to stay. Smith stayed in Paschall's house for three nights and spent Thanksgiving with Paschall's family. Paschall offered Smith work doing odd jobs around the property, including yard work and painting. Smith performed all his assigned work outside, except for two or three occasions when Paschall asked Smith to feed the dogs in the house while Paschall was out of town. Paschall explained his business was on the same property as his home, but he maintained a strict division of the property, and workers did not enter the house except for specific reasons and with Paschall's permission. A gate between the two areas was kept padlocked, but Paschall testified the side door of the house was never locked. Smith used that door on the occasions when he entered the house to feed the dogs. Smith's employment lasted about four months. When Paschall suspected Smith of using drugs, Paschall fired him. Soon after he fired Smith, Paschall's stepmother gave him two guns that had belonged to his father. Paschall stored the guns in a hard case under the bed in the guestroom. Three or four days later, Smith determined the guns were missing. He suspected Smith because of the timing. One of the guns-which Paschall called a Winchester .308 rifle-was discovered at a pawn shop in Garland, Texas. Smith had pawned the gun using identification that included Paschall's address. The State charged Smith with burglary of a habitation, and the jury found him guilty. The trial court assessed his punishment at sixty years' imprisonment. Smith appeals.Sufficiency of the Evidence
In his first issue, Smith challenges the sufficiency of the evidence supporting his burglary conviction on two specific grounds: effective consent to enter Paschall's property and the identity of a stolen rifle. Smith frames his issue as a challenge to the legal and factual sufficiency of the evidence. But the Court of Criminal Appeals has recently directed that:the Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (referring to Jackson v. Virginia, 443 U.S. 307 (1979)). This single standard requires the reviewing court to determine whether, considering all of the evidence in the light most favorable to the verdict, the jury was rationally justified in finding guilt beyond a reasonable doubt. Id. at 899 (citing Jackson, 443 U.S. at 319). We defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony because the jury is the sole judge of those matters. Id. at 899. A person commits the offense of burglary 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 2003). In this case, the State charged that Smith entered Paschall's habitation without his effective consent and, once there, committed a theft of property, including a Winchester .308 rifle.
Effective Consent to Enter Property
Smith contends at the outset that the State did not prove any entry he made on Paschall's property was without Paschall's effective consent. In his brief, Smith contends he lived in Paschall's home for some time, "often" took care of Paschall's animals when Paschall was out of town, and had a key to the house. According to Smith, these contentions suggest that he was "a welcome guest in Paschall's home." Paschall, on the other hand, testified Smith never resided at his home: he stayed overnight approximately three nights when he first was released from jail. The only other times Smith had consent to be in the house were when Paschall asked Smith to feed the dogs; Paschall was sure this happened no more than three times. When he fed the dogs, Smith used the side door to the house, which was always left open. Paschall fired Smith shortly before Paschall's stepmother brought Paschall his deceased father's guns. The absence of effective consent may be proved by circumstantial evidence. Prescott v. State, 610 S.W.2d 760, 763 (Tex. Crim. App. 1981). For example, if Smith had implied consent to enter the home to perform chores for Paschall, that consent certainly ended once Smith's employment was terminated. We know the burglar's entry into Paschall's home occurred after Smith's termination, because Paschall's stepmother did not bring him the guns until after Smith was fired. Thus, Smith could not have had effective consent to enter Paschall's home at the time the guns were stolen. We are satisfied that any rational jury could have found the essential element of entry without Paschall's effective consent, beyond a reasonable doubt. See Brooks, 323 S.W.3d at 899.Identity of the Stolen Rifle
Smith also contends the State failed to prove he stole a .308 Winchester rifle as the indictment alleged. Smith relies on the testimony of the police officer who located the rifle at the pawn shop; the officer testified the rifle in question was a Mauser. Smith also relies on the pawn shop's records, which describe the gun as a "Rifle Firearm Mauser 98" with "a Leupold scope in a green hard case." The rifle located in the pawn shop by the Garland police was introduced at trial as State's Exhibit # 2. Paschall testified at length about the rifle, which his father had custom made when Paschall was young. Paschall had used the rifle many times when hunting with his father; he testified he could easily identify it. When asked to describe the gun stolen from his house, Paschall testified:[T]he second [gun stolen] was, years ago when I was a kid he had made for him a very expensive gun, a .308 Winchester, three — three to nine power Leopold [sic] scope. The — the — had a Mouser [sic] action, Douglas barrel and has a little chip on the inside of the pistol grip handle, missing for many years ago hunting, when I crossed over a fence with it.Paschall went to the pawn shop and positively identified the rifle. It was in the same case, and it had all the markings he remembered from using it over the years, including the chipped handle. Paschall explained the rifle had a number of custom features that made it different than a store-bought .308. In fact, when discussing those features, Paschall testified, "It's just called a .308 Winchester. I'm not for sure if that's the inner workings of the gun." He stated that "my dad, whenever he would describe it, would describe it as a .308 Winchester, with a Mouser [sic] action, Douglas barrel, Leopold [sic] scope, et cetera. And that's what I'm going by." We conclude Paschall sufficiently identified the rifle that was stolen and sufficiently identified State's Exhibit # 2 as that rifle. A rational jury could certainly have found the rifle described in the indictment was the rifle identified by Paschall at trial, beyond a reasonable doubt. See Brooks, 323 S.W.3d at 899. We overrule Smith's first issue.
Dismissal of Juror
In his second issue, Smith complains of the trial court's dismissal of one juror, and the subsequent promotion of an alternate juror, before trial began. After voir dire, before the selected panel members were seated, the judge asked if any of them had a question. One juror, Patricia Orduna, indicated she did. The judge invited Orduna forward, and the following exchange took place.THE JUROR: When I was reading my summons I noticed it — on there where it said — anyway my husband is in the hospital. He's been there for three weeks. He's not on life support, but it is a life and death situation.
THE COURT: Well, why didn't you talk about it?
THE JUROR: Well I didn't see it on here. I just seen it, that I could ask for forgiveness or other things.Counsel for appellant objected to Orduna's dismissal, stating: "She went all through the voir dire. It obviously wasn't that important." The trial court overruled the objection, discharged Orduna, and promoted an alternate to the jury. Smith contends the trial court removed Orduna based on a disability and looks to article 36.29 of the code of criminal procedure as the governing law. See Tex. Code Crim. Proc. Ann. art. 36.29 (West 2006) (titled "If a Juror Dies or Becomes Disabled"). Article 36.29 governs situations that develop "after the trial of any felony case begins." Id. art. 36.29(a). Trial begins-because jeopardy attaches-when the jury is empaneled and sworn. State v. Moreno, 294 S.W.3d 594, 597 (Tex. Crim. App. 2009). But the trial court excused Orduna before the jury was sworn. Moreover, the record does not indicate Orduna developed any sort of disability while at the courthouse. We conclude, instead, that the above-quoted exchange establishes Orduna offered an excuse and sought to be discharged from jury duty based on that excuse. Thus, the governing statute is article 35.03, which provides:
[T]he court shall then hear and determine excuses offered for not serving as a juror, including any claim of exemption or a lack of qualification, and if the court considers the excuse sufficient, the court shall discharge the prospective juror or postpone the prospective juror's service to a date specified by the court, as appropriate. Tex. Code Crim. Proc. art. 35.03 § 1 (titled "Excuses"). Under this statute, the trial court exercises broad discretion in excusing prospective jurors on any proper basis. Kemp v. State, 846 S.W.2d 289, 293 (Tex. Crim. App. 1992). Personal hardship is a proper basis for excusing a prospective juror. See id. at 294. We discern no abuse of discretion in the trial court's dismissal of Orduna based on her personal hardship.We overrule Smith's second issue.
Double Jeopardy
In his third issue, Smith contends his conviction violated his double jeopardy rights. Smith acknowledges that, before his burglary trial began in Hunt County, he was convicted of Unlawful Possession of a Firearm in Dallas County. See Tex. Penal Code Ann. § 46.04(a) (setting forth elements of possession of firearm by felon). The weapon Smith was convicted of possessing unlawfully was the rifle identified at this trial as State's Exhibit # 2. In this Court, Smith cites what he calls the "connections" between his unlawful-possession conviction and his burglary conviction: the offenses were alleged to have occurred within one day of each other; both cases revolve around his possession of State's Exhibit # 2; he had been convicted of possessing State's Exhibit # 2; and the evidence used to convict him in the two cases was "exceedingly similar." Smith goes on to argue that to prove the underlying offense of theft, the State would have to prove the same element it proved in his unlawful-possession case, i.e., that Smith possessed State's Exhibit # 2. But none of Smith's "connections" constitute proof of double jeopardy violations, and his argument concerning overlapping proof of the element of possession does not go far enough. The Double Jeopardy Clause protects against three different circumstances: a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense. Bigon v. State, 252 S.W.3d 360, 369 (Tex. Crim. App. 2008). Smith appears to invoke the second and third circumstances, both of which require a determination of whether his two convictions were-for double jeopardy purposes-convictions for the same offense. When the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not. Blockburger v. United States, 284 U.S. 299, 304 (1932); Ex parte McWilliams, 634 S.W.2d 815, 824 (Tex. Crim. App. 1980) ("The Blockburger test is satisfied if each statutory offense requires the proof of a fact that the other does not."). To determine whether two crimes are the same for double-jeopardy purposes, we focus on the elements alleged in the charging instrument. Bigon, 252 S.W.3d at 370. Smith's burglary indictment, based on penal code section 30.02(a)(3), alleged that he:did unlawfully then and there intentionally and/or knowingly enter a habitation without the effective consent of WLLIAM BRENT PASCHALL, and therein attempted to commit and/or did commit theft of certain property, to wit: BROWNING 20 GAUGE SHOTGUN, WINCHESTER .308 RIFLE, $530.00 CASH, AND/OR 300 POUNDS OF STEAKS, all property belonging to said WILLIAM BRENT PASCHALL.And as to the underlying theft of the Winchester .308 rifle-State's Exhibit # 2-the indictment alleged that Smith:
did then and there unlawfully appropriate property, a firearm, to-wit, A WICHESTER .308 RIFLE, by exercising control over said property from WILLIAM BRENT PASCHALL, the owner thereof, and with intent to deprive the owner of said property.We are unable to compare the factual aspects of this indictment with the facts in Smith's unlawful possession indictment, because the latter was not included in the record before us. However, a legally correct indictment charging unlawful possession of a firearm would have to include the elements found in the penal code: a person (here Smith), who has been convicted of a felony, possesses a firearm within five years of his release from confinement or parole or, after that time period, at any place other than his home. See Tex. Penal Code § 46.04(a). It is apparent that if we look to the burglary offense as a whole, the State was required to prove Smith entered on Paschall's property, and if we look to the underlying felony committed after entry, the State was required to prove Smith stole the firearm. Neither of these facts would be part of the State's proof in the unlawful possession case. Likewise, in the unlawful possession case, the State was required to prove Smith was a convicted felon, which would not be part of the State's proof in the burglary case. Sections 46.04(a) and 30.02(a)(3) each require proof of a fact that the other does not. Thus, the Blockburger test is satisfied. See 284 U.S. at 304. We conclude there is no double jeopardy violation, and we overrule Smith's third issue.