Opinion
No. 05-01-01130-CR
Opinion Filed July 29, 2003 Do Not Publish
On Appeal from the 401st Judicial District Court, Collin County, Texas, Trial Court Cause No. 401-80022-01. AFFIRM
OPINION
Ricky Dwayne Walston appeals his burglary of a habitation conviction. After the jury found appellant guilty, the trial court assessed punishment at forty years' imprisonment. In two points of error, appellant contends the evidence is insufficient to corroborate the accomplice witness testimony and to support his conviction. We overrule appellant's points of error and affirm the trial court's judgment. Appellant, Preston Wilson, and Daniel Ortega were riding around in a stolen truck when they found Daniel Caballero's vehicle. Earlier that night, Caballero had parked his vehicle outside of his closed garage, which faced the alley and was attached to his house. While appellant remained in the truck, Wilson and Ortega broke into Caballero's vehicle, stole several items, and found Caballero's garage door opener. Wilson and Ortega went into Caballero's garage, took Caballero's tool box, and put it into the bed of the stolen truck. The three men left and drove to a nearby convenience store. While they were at the convenience store, Plano police officers noticed Ortega arguing with Wilson, threatening him with a screwdriver. After interviewing the three men and receiving inconsistent stories about their earlier whereabouts, the police ran a check and discovered the truck was stolen. Police then arrested the men and searched the truck. Inside the cab, they found several items of Caballero's personal property, including his identification card. In the truck's bed, they found the tool box amidst several gardening tools. Using the identification card, police called Caballero and verified his vehicle had been burglarized, his identification card was missing from the cab, and the tool box was missing from his garage. In his first point, appellant challenges the trial court's denial of his motion for instructed verdict because there was insufficient evidence to corroborate Ortega's accomplice witness testimony. See Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979). The accomplice witness rule is a statutorily imposed sufficiency review. Cathey v. State, 992 S.W.2d 460, 462-63 (Tex.Crim.App. 1999). The burden established by the Legislature is that there be other evidence "tending to connect" the defendant with the offense. Id. To determine whether the State met its burden, we first eliminate the testimony of the accomplice. We then examine the evidence of the other witnesses to see if there is inculpatory evidence that tends to connect the defendant with the commission of the offense. Gosch v. State, 829 S.W.2d 775, 777 (Tex.Crim.App. 1991). In addition to Ortega's accomplice witness testimony, the record shows that Caballero told the police his vehicle had been broken into, items were taken from the vehicle without his consent, and someone had taken a tool box from his garage without his consent. Police found appellant in Wilson's and Ortega's company shortly after the burglary. The men were stopped near where the burglary took place. Police found Caballero's toolbox and other personal property in the truck the three men were driving. Finally, appellant's responses to questions about the mens' whereabouts that evening and the ownership and contents of the stolen truck sufficiently conflicted with Wilson's responses so as to raise police suspicions. Thus, even disregarding the accomplice witness testimony, there is substantial evidence tending to connect appellant to the offense. See Herron v. State, 86 S.W.3d 621, 633 (Tex.Crim.App. 2002) (possession of stolen property tends to connect appellant to crime); Hernandez v. State, 939 S.W.2d 173, 178 (Tex.Crim.App. 1997) (presence in company of accomplice near time of offense not alone conclusive, but important factor for corroboration). We overrule appellant's first point of error. In his second point of error, appellant contends the evidence is legally and factually insufficient to support his conviction. We review sufficiency challenges using well-known standards of review. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (legal sufficiency); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex.Crim.App. 2000) (factual sufficiency). A person commits burglary of a habitation if, without the effective consent of the owner, he enters a building or habitation and commits or attempts to commit a theft. See Tex. Pen. Code Ann. § 30.02 (Vernon 1994 Supp. 2002). To convict appellant as a party, the evidence had to show that, at the time of the offense, the men were acting together, each contributing some part towards the execution of their common purpose. See Escobar v. State, 28 S.W.3d 767, 774 (Tex.App.-Corpus Christi 2000, pet. ref'd). Evidence is sufficient to convict under the law of parties where the defendant is physically present at the commission of the offense and encourages its commission by words or other agreement. Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App. 1994). To determine whether the accused acted as a party, we may look to events occurring before, during, and after the commission of the offense, and circumstantial evidence may be used to prove party status. See id. Here, the record shows the men made no express agreement to burglarize a habitation. However, they did expressly agree to go "shopping," meaning they were looking to steal "whatever crossed [their] path." That night, they did "a little bit of everything," including breaking into cars. Their plan was not specific, and the scope of their "shopping" spree was not necessarily limited to motor vehicles. Instead, they planned to do "whatever it took" to "just make some money and go-back." Appellant helped the men load stolen items into the stolen truck earlier that night when they broke into other vehicles. When they came across Caballero's truck, the men intended to burglarize it. Appellant stayed in the stolen truck as the "lookout." After finding the garage door opener, Wilson and Ortega entered Caballero's garage without specifically informing appellant. Although the jury could have determined appellant did not agree to burglarize a habitation, the jury was also free to believe the burglary was within appellant's agreement with Wilson and Ortega to go "shopping" for whatever crossed their path, doing "whatever it took," and that he contributed to the common purpose of the crime by acting as a lookout. Having examined all the evidence in the light most favorable to the verdict, we hold that a rational jury could have found appellant guilty of the crime. Moreover, after examining the evidence in a neutral light, we find the supporting evidence is not so weak-nor is the contrary evidence so overwhelmingly strong-as to render the verdict clearly wrong and manifestly unjust. Thus, we conclude the evidence is legally and factually sufficient to support appellant's conviction. We overrule appellant's second point of error. We affirm the trial court's judgment.
Although the clerk's record, the indictment, and appellate briefs show appellant's name as "Ricky Wayne Walston," we state appellant's name as depicted in the judgment, "Ricky Dwayne Walston."
Appellant's second point of error is that the trial court erred by denying his motion for instructed verdict for insufficiency of the evidence because the evidence is legally and factually insufficient, or in the alternative, that the evidence is legally and/or factually insufficient. A complaint about the denial of an instructed verdict is determined under a legal, not factual, sufficiency standard of review. See Margraves v. State, 996 S.W.2d 290, 302 (Tex.App.-Houston [14th Dist.] 1999), rev'd on other grounds, 34 S.W.3d 912 (Tex.Crim.App. 2000); Youens v. State, 988 S.W.2d 404, 407 (Tex.App.-Houston [1st Dist.] 1999, no pet.).
Appellant Ricky Dwayne Walston alleges, in his second point of error, that the evidence is insufficient to support his conviction. The specifics of this point of error deal with his contention that since there is no direct or circumstantial evidence in the record that he had foreknowledge of the burglary of a habitation committed by his accomplices, there is insufficient evidence even under the law of parties to support his conviction. With the following remarks, I both join and concur in the majority opinion affirming the judgment of the trial court. Given that Walston is correct in his contention that there is no direct or circumstantial evidence in the record that he had foreknowledge of the burglary of a habitation for which he was convicted, his sufficiency challenge must nevertheless fail under section 6.04 of the penal code. See Tex. Pen. Code Ann. § 6.04 (Vernon 2003). That section states in its entirety: § 6.04. Causation: Conduct and Results.
(a) A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.
(b) A person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that:
(1) a different offense was committed; or
(2) a different person or property was injured, harmed, or otherwise affected.Id. As pointed out in the majority opinion, during the trial there was evidence that Walston and his accomplices agreed to steal whatever crossed their path that night. They were on a non-specific crime spree of looting and theft, readily agreed to and assisted by Walston. Germaine to the burglary of a habitation for which Walston was convicted, he willingly acted as lookout while his two accomplices, with Walston's foreknowledge, went to burglarize a truck. The fact that the accomplices changed their plans upon seeing the garage door of the habitation fortuitously left open is of no moment under section 6.04. See Castillo v. State, 71 S.W.3d 812, 815-16 (Tex.App.-Amarillo 2002, pet. ref'd); see also Tex. Pen. Code Ann. § 6.04. It is apparent that Walston desired, contemplated, and risked that his two accomplices would burglarize the truck in the driveway of the habitation that was ultimately burglarized. They, unbeknownst to Walston, decided to burglarize a different property (the habitation). Thus, a different offense than that which Walston desired, contemplated, and risked was committed, and a different property than that which Walston desired, contemplated, and risked was injured, harmed, and otherwise affected. Simply by following the plain wording of section 6.04(b), it becomes readily apparent under the facts of this case that Walston's accomplices' last minute change of plans in no way absolves Walston of culpability for that ultimate crime committed by his accomplices — the burglary of a habitation. See Castillo, 71 S.W.3d at 815-16; see also Tex. Pen. Code Ann. § 6.04. For this additional reason, I join the majority opinion.
Section 6.04(b) provides that a person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that a different offense was committed or a different person or property was injured, harmed, or otherwise affected. See Tex. Pen. Code Ann. 6.04(b).