Opinion
NO. 09-16-00160-CR
03-08-2017
TRAVIS REKEL WHEATON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court Jefferson County, Texas
Trial Cause No. 15-23069
MEMORANDUM OPINION
A grand jury indicted Travis Rekel Wheaton (Wheaton or Appellant) for burglary of a habitation, with an enhancement for a prior felony conviction. See Tex. Penal Code Ann. § 30.02 (West 2011). A jury found Wheaton guilty and assessed punishment at seven years' confinement. Wheaton timely filed a notice of appeal, and in a single issue, he challenges the sufficiency of the evidence to support his conviction. We affirm the judgment of conviction.
Evidence at Trial
Testimony of Donald Randle Jr.
Donald Randle Jr. (Donald) testified that he is Diane Randle's (Diane) cousin and that in August of 2013, he had been staying at Diane's house on McFaddin Street for two or three months. Donald explained that Diane had asked him to stay at her house because she was often in Port Arthur to see her fiancé, and she wanted someone to watch her home because there had been an attempted break-in in the past. According to Donald, Diane operated a tax business in the front part of her house. During the months Donald lived in the house, he observed four computers in the tax office inside the home. Donald also testified that Diane had three televisions in the house "that were working."
Donald testified that on the night of August 23, 2013, he left work around 10:30 p.m., and he drove home and parked in the back of the house. When he was about to enter the house through the back door, he saw that the door was "splintered where it had been kicked in." Donald explained that "[w]hen I went to put my key in, the door pushed open and the door was still good; but the door frame was kicked out. You could tell somebody kicked the door in." Donald called Diane, and then he called 911. According to Donald, when Diane returned to the house, she told Donald that she had moved a bedroom set and TV out of the house earlier that day, and Donald told her that a computer was gone and TVs that had been in the office and front room were also gone. Donald testified that the items stolen from Diane's house that night included two TVs, a computer, and two pairs of Donald's shoes. Testimony of Officer Robert Gerard Jr.
Robert Gerard Jr. (Gerard or Officer Gerard), an officer with the Beaumont Police Department, testified that he was working the night shift on August 23, 2013, and that he was dispatched to the McFaddin Street address. Officer Gerard explained that the back door "looked like somebody had kicked the door frame or something. It had dents to the back door, and also the door frame appeared to be cracked." According to Officer Gerard, inside the doorway were pieces of the door and the doorframe that had been shattered. Gerard testified that he believed that someone had made a forced entry into the residence. Officer Gerard spoke with Diane and learned that two TVs and a computer had been taken from the house. Referring to his police report of the incident, Gerard testified that Diane reported the following items as stolen that night: "a 19-inch HP touch screen computer, the 32-inch Polaroid flat screen LCD TV and a Vizio, 42-inch Vizio flat screen TV." According to Gerard, the keyboard and mouse for the computer were also missing. Officer Gerard explained that it appeared to him that the break-in occurred on August 23rd sometime between 2:30 p.m., when Diane told him she had left the house, and 10:50 p.m., when Donald arrived at the house.
State's Exhibits 1 through 15 were admitted into evidence. Officer Gerard testified that the exhibits were photographs of the house taken by Officer Carol Hargroeder. According to Gerard, State's Exhibit 2 depicts "the area where the door was kicked into the back of the house[]" and it depicts "[t]he back door where there was forced entry[.]" State's Exhibits 11 and 15 depicted the hardware previously attached to wall-mounted TVs, and represented the area from which the TVs had been taken. Testimony of Officer Carol Hargroeder
Officer Carol Hargroeder (Hargroeder or Officer Hargroeder) testified that she works as an ID tech for the Beaumont Police Department and she was dispatched to the house on McFaddin Street on August 23, 2013, in connection with a report of a burglary. Officer Hargroeder agreed she had taken the photos admitted as State's Exhibits 1 through 15 and, although she had processed the scene for possible fingerprints, she did not develop or find any prints. Hargroeder recalled that the back door had been "shouldered[]" or forced open because there was damage to the inside of the door and doorframe. Testimony of Diane Randle
Diane Randle testified that she operates a tax business located on Interstate 10 but which had previously been located at the McFaddin Street address. Describing the McFaddin Street location, Diane testified:
. . . Originally, it was a home; and before I moved in, it was a mortgage company. So, when I moved in, I utilized it as my tax office but there is a bedroom towards the back that I utilized for my bedroom and then I utilized upstairs. So, I just moved into this one building; and then the home that I previously owned, I rented it out.Diane explained that, when her clients visited the office, they used the front door and "[n]obody is allowed in and out the back door." She also testified that her clients would never have seen the bedroom, the back door area, or the back porch. Looking at State's Exhibit 14, Diane identified a wall mount where a 42-inch TV had been in the front room, and on State's Exhibit 11, she identified the location where a 32-inch TV had been mounted on the wall in her office. She also identified the space on her desk where her 21-inch touch-screen computer, keyboard, and mouse had been located.
Diane explained that Donald was staying at her house because she was gone a lot on business travel and to be with her fiancé and she did not want the house to be empty. Diane stated that Donald had a key to the house but that she had not given anyone else permission to go into her home while she was gone. Diane testified about an incident which occurred about a year before the burglary when a man came to her door asking if she needed yardwork done, and he shoved the door and put his foot in the doorway when she tried to close the door. Diane also explained that she had been "harassed" by her cousin, Margaret Randle, for about two and a half years. And, Margaret is married to Travis Wheaton.
Diane testified that on August 23, 2013, Diane took some things from her house on McFaddin Street to her fiancé's house, including the bedroom furniture and a 42-inch TV that was on a floor stand. According to Diane, later that night, Donald called Diane and asked her if she had moved things from the house and if she had left the back door open. Diane explained that she told Donald she had locked the top and bottom locks when she had left the house earlier in the day, and Donald told her he thought someone had kicked in the door and broken into the house. Diane testified that she then returned to her house on McFaddin Street where she noticed the TVs missing from the front room and from her office and also the computer, keyboard, and mouse were missing from her desk, and that she and Donald both gave statements to the police.
Diane explained that Wheaton contacted her in 2015 to tell her that he and Margaret, along with two other men, had broken into Diane's home. Diane testified that in 2015, Wheaton called his ex-wife, Pricilla Wheaton, Pricilla then called Diane, and then Wheaton, Margaret, and Diane had a "three-way call[]" while Wheaton was in jail. Diane explained that Wheaton gave her details of the burglary. Wheaton told Diane that Margaret and Wheaton drove to the back of Diane's house because she had a long driveway, another man named Calvin kicked in the door, and Wheaton stayed in the car because he was paralyzed. Wheaton told Diane "I wake up and watch your television every day." Diane called the Beaumont Police Department after the phone call from Wheaton and Diane then reported that her TVs were at Wheaton's home. Diane also explained that she made Wheaton write a statement, telling him "If you are telling me the truth, put it in writing and give it to one of the sergeants up there and have the sergeant or lieutenant call me when it's ready." She also explained what happened when she went to pick up the statement:
I go up to the jail and I let the person behind the window know who I am and what I was picking up and they handed me the piece of paper where he had handwritten this statement. He pretty much summarized on paper what he told me over the phone and so, I read it and [h]is ex-wife was with me also and I took it.
. . . .
I go inside because Detective Lewallen was the one working the case and, of course, they kept telling me there was nothing that they could do. And so, when I went inside, she wasn't there but another detective, the gentleman who runs the burglary division, he came out and we sat in the lobby and we talked. And I said, "[Wheaton] is outside." So, we went out to my car and they talked and, I guess, after talking maybe 15, 20 minutes, he went back in and got a recorder and he asked [Wheaton] could he record him. He said, "Will you be willing
to say all of this on tape?" And [Wheaton] openly, willingly said yes; and he did. I got out of the car. I was outside walking around while they talked to [Wheaton]; and then the detective that was actually talking to him actually sent for another detective, which was a part of the theft division. I think it was Detective Moore. And both of them held a conversation with Mr. Wheaton and he said, "Okay, we got it."State's Exhibit 16 was entered into evidence without objection. Diane testified that Exhibit 16 was a copy of the letter she received from Wheaton. Diane read the letter:
It says, "To Whom It May Concern: Margaret Randle broke into Ms. Diane Randle house [on] McFaddin and stole three flat-top TV's and two computers. Plus, she founded out where my ex-wife, Pricilla Wheaton, and stole her I guess truck and took" -- I can't make out what that word is. Stole her something and took her truck. "My ex-wife did not take purses. I gave them to her. I paid for them." And he signed his name.According to Diane, after Wheaton spoke with the detective, Diane gave Wheaton a ride to a relative's house, and when she pulled up to the house, Wheaton said to her, "Hey, you see that guy sitting on the porch? That's one of the dudes that broke into your place." Diane told the jury that she returned to the house the following day and spoke with Calvin, and although he initially denied having participated in the break-in, a few days later Calvin corroborated what Wheaton had told her "[v]erbatim." On cross-examination, Diane agreed she gave Wheaton's ex-wife some money for Wheaton's bail, but she denied that Wheaton giving her a written statement was a condition of her giving him money to get out of jail.
Diane told the jury that her relationship with Margaret was "horrible[,]" that Diane had filed numerous police reports regarding Margaret, and that Diane was "terrified that one day that one of us is going to seriously end up hurt because she will not stop harassing me." At some point prior to the break-in and before Diane lived at the house on McFaddin, Diane allowed Margaret, Wheaton, Margaret's mother, and Margaret's three children to live in her house rent-free, but Diane eventually asked Margaret to move out after Margaret "refused to let [Margaret's] mother into the home to get her oxygen tank[.]" Diane explained that, at some point prior to the break-in, the tires on Diane's car were slashed, and Diane had learned that Margaret had gotten one of her daughters to slash the tires. Testimony of Detective William Stanford Jr.
Detective William Stanford Jr. (the Detective or Stanford) testified that he was assigned to burglary investigations and that he took a statement from Wheaton in May of 2015. Detective Stanford identified Travis Wheaton. Stanford explained that, at the time he obtained a statement from Wheaton, Wheaton was not in handcuffs. The Detective testified that before he took Wheaton's statement, he explained to Wheaton that Wheaton was not under arrest and Wheaton was free to leave at any time. The Detective further testified as follows:
Q. And in answering the questions, did the defendant admit to committing or taking part in any part of the crime?
A. He told me he was there when some items were taken.State's Exhibit 17, a copy of the videotaped statement, was entered into evidence. According to the Detective, Wheaton's statement was voluntary, Wheaton did not say he was forced to participate in the burglary against his will, and Wheaton did not say he tried to stop the burglary from occurring. Testimony of Margaret Wheaton
Q. And how did you make a record of those admissions?
A. I got a video camera that we keep; and since he was unable to come up to my office, I decided to do the interview there and video recorded it.
. . . .
When I first spoke with him and he said that he had Ms. Randle's televisions and I asked him how he knew and he said he just knew. And I said do you know -- do you have serial numbers? Do you have anything like that? And he said no. And I said you can't -- how do we know -- how can you prove that those sets are Ms. Randle's? And that's when he said because I was there when they were stolen.
Margaret Wheaton testified that she was married to Travis Wheaton and that Margaret and Diane are cousins. Margaret told the jury that she and Diane have "had difficulties for years[.]" Margaret explained that she stayed in one of Diane's houses, and that Diane had asked her to move out due to arguments between Margaret and Margaret's mother, and Margaret admitted she and Diane had a conflict concerning a bridal shower and over the tires of Diane's car being slashed. But, Margaret denied having any animosity or reason to steal Diane's TVs. Margaret also denied being present at the break-in at Diane's house and told the jury that, on the evening of August 23, 2013, she went home after work and stayed there for the rest of the night. Testimony of Wheaton
Travis Wheaton testified that the videotaped statement was "untrue[]" and that he made the statement because he was mad at his wife , Margaret, and wanted to "find something that can send [her] to jail." Wheaton also testified that he lied about Calvin's involvement in the break-in. Wheaton explained that he knew about the break-in at Diane's house because Diane had told him some of what happened and because his family had talked about it. According to Wheaton, he had never been to Diane's house or office, he did not know what the house looked like, and on the night of August 23, 2013, he was "[a]t home with the kids." Testimony of Calvin Holman
The State called Calvin Holman (Calvin) as a rebuttal witness, stating "[h]e's a codefendant." Calvin explained that he knows Wheaton because Calvin's fiancé is Wheaton's cousin. Calvin agreed he had also been indicted for the break-in at Diane's home, but he explained that he had not made any kind of plea bargain with the State in exchange for his testimony.
The indictment in the appellate record names only Travis Rekel Wheaton. However, the Probable Cause Affidavit of Officer Tina Lewallen in this case sought an arrest warrant for "Wheaton, Travis Rekel[]" and "Holman, Calvin James[]" in connection with the burglary of a habitation at Diane Randle's address on August 23, 2013.
Calvin told the jury that, on the night of August 23, 2013, Margaret and Wheaton came to his house asking him to help them move some things, and Calvin agreed to help them. Calvin indicated that he then agreed to help them, he got into Wheaton and Margaret's vehicle, and he believed they drove "to Ms. Diane residence." Calvin explained that, when they arrived at the house, they went to the back of the house, where some items were already sitting outside - "[n]ot too much, but I know it was like a TV maybe, maybe two[]" - and that Calvin helped put those items in the truck. According to Calvin, he and "the other guy[]" went inside the house and then loaded computers into the truck. Calvin explained that after they loaded the items into the truck, they all went to Wheaton and Margaret's house, where they unloaded the truck and put the items in Wheaton and Margaret's house, and then Wheaton and Margaret took Calvin home. Calvin testified that he had been given twenty dollars for helping Wheaton and Margaret get things from Diane's house.
According to Calvin, he was picked up a few days following the incident and sentenced to time in state jail for a probation violation, and he did not talk with Wheaton or Margaret while he was in jail. Calvin explained that "I didn't find out it was a robbery until I got out of state jail." Calvin testified that, at some point, Diane approached him where he lived and said she had heard he burglarized her home, and he denied knowing what she was talking about. Calvin then explained that, a few days later, Calvin was contacted by a police officer, and he agreed to go to the police station where he gave a videotaped statement. Calvin explained that, in the statement he gave to police, he said that Wheaton and Margaret had shown up at his house and asked him to help them move some things, and that he and another man entered the house and took a TV and a computer out of the house.
Calvin testified he was "probably" on drugs and drunk when the incident occurred. He also stated that he had a bad relationship with Margaret, he had not seen her in about a year, and he wanted Margaret to be charged with this offense "[b]ecause she [was] the mastermind."
The jury charge included the following instruction on the law of parties:
The defense made no objections at trial to the jury charge and Appellant raises no issues concerning the charge on appeal.
A person is criminally responsible as a party to an offense if the offense is committed by his/her own conduct, or by the conduct of another for which (s)he is criminally responsible, or both. Each party to an offense may be charged with and convicted of 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, (s)he solicits, encourages, directs, aids or attempts to aid the other person to commit the offense.
Mere presence alone at the scene of an alleged offense, if any, will not constitute one a party to an offense.
The jury unanimously found Travis Wheaton guilty of the offense charged and, after a hearing on punishment, the jury assessed punishment at seven years' confinement. The trial court certified Wheaton's right of appeal, and Wheaton timely filed a notice of appeal.
Issue on Appeal
In a single issue, Appellant argues that the evidence was insufficient to support the jury's finding of guilt beyond a reasonable doubt. According to Appellant, "[t]he evidence was nonexistent with regard to [] identity and that the Appellant actually committed any acts found in the indictment[,]" that no "legally acceptable evidence" placed Appellant at the scene of the crime, and that the evidence was insufficient that Appellant entered the habitation. Appellant's brief characterizes the testimony as "confusing and contradictory statements[.]"
Appellant raises no issues on appeal regarding the admission of any evidence at trial.
Applicable Law
A person commits the offense of burglary of a habitation if, without the effective consent of the owner, he
(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault; orTex. Penal Code Ann. § 30.02(a); see also Ex parte Cavazos, 203 S.W.3d 333, 336-37 (Tex. Crim. App. 2006) (citing DeVaughn v. State, 749 S.W.2d 62, 65 (Tex. Crim. App. 1988)) ("the gravamen of a burglary is the entry without the effective consent of the owner and with the requisite mental state").
(2) remains concealed, with intent to commit a felony, theft, or an assault, in a building or habitation; or
(3) enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.
The law in Texas allows individuals 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. See Tex. Penal Code Ann. §§ 7.01, 7.02 (West 2011); Cary v. State, No. PD-1341-14, 2016 Tex. Crim. App. LEXIS 1513, at *12 (Tex. Crim. App. Dec. 14, 2016) ("Parties to an offense may be charged with commission of a crime as if they committed it themselves."); Powell v. State, 194 S.W.3d 503, 506-07 (Tex. Crim. App. 2006) (explaining that, under the law of parties, a defendant is not required to actually enter the complainant's house in order to be found guilty of burglary of a habitation). When a party is not the primary actor, the State must prove conduct constituting an offense plus an act by the defendant done with the intent to promote or assist such conduct. Beier v. State, 687 S.W.2d 2, 3 (Tex. Crim. App. 1985). "Party participation may be shown by events occurring before, during, and after the commission of the offense, and may be demonstrated by actions showing an understanding and common design to do the prohibited act." Salinas v. State, 163 S.W.3d 734, 739-40 (Tex. Crim. App. 2005).
Intent, identity, and entry may be proved by circumstantial evidence. See Moore v. State, 54 S.W.3d 529, 539 (Tex. App.—Fort Worth 2001, pet. ref'd) ("intent may be inferred from the defendant's conduct and surrounding circumstances[]"); Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986) (citing Oliver v. State, 613 S.W.2d 270, 274 (Tex. Crim. App. 1981) (op. on reh'g)) ("Evidence as to the identity of the perpetrator of an offense can be proved by direct or circumstantial evidence."); Williams v. State, 997 S.W.2d 415, 416 (Tex. App.—Beaumont 1999, no pet.) (quoting Gilbertson v. State, 563 S.W.2d 606, 608 (Tex. Crim. App. 1978)) ("'Burglarious entry may be shown by circumstantial evidence.'"). Circumstantial evidence may also be used to prove that the defendant was a party to the offense. Powell, 194 S.W.3d at 506 (citing Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987)).
Standard of Review
In reviewing the legal sufficiency of the evidence, we review all the evidence in the light most favorable to the verdict to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). In reviewing sufficiency challenges, we are required to give the jury's findings and its conclusions deference, as it was the jury's responsibility to fairly resolve all conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from the basic facts to resolve whether the defendant is guilty of violating the criminal provision that is at issue at trial. See Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
"Direct evidence and circumstantial evidence are equally probative, and circumstantial evidence alone may be sufficient to uphold a conviction so long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction." Ramsey v. State, 473 S.W.3d 805, 808-09 (Tex. Crim. App. 2015) (citing Winfrey v. State, 393 S.W.3d 763, 771 (Tex. Crim. App. 2013); Hooper, 214 S.W.3d at 13)). "'When the record supports conflicting inferences, we presume that the jury resolved the conflicts in favor of the verdict, and we defer to that determination.'" Blea v. State, 483 S.W.3d 29, 33 (Tex. Crim. App. 2016) (quoting Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014)). The jury, as the judge of the facts and credibility of the evidence, may choose to believe or not believe the witnesses, or any portion of their testimony, despite contradictory evidence. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (citing Esquivel v. State, 506 S.W.2d 613 (Tex. Crim. App. 1974)); Johnson v. State, 673 S.W.2d 190, 196 (Tex. Crim. App. 1984) (citing Ables v. State, 519 S.W.2d 464, 465 (Tex. Crim. App. 1975); Esquivel, 506 S.W.2d at 615) ("[A] jury, sitting as the trier of facts, may accept or reject any or all of the testimony adduced.").
Analysis
In this case, Diane testified that, on the evening of August 23, 2013, she discovered that two TVs, a computer, a keyboard, and a mouse were missing from her home. Diane testified that Wheaton told her that he, Margaret, Calvin, and another man went to Diane's house and Calvin kicked the back door in. Wheaton told Diane that he and Margaret had broken into her house with two other men, and Wheaton gave Diane a written statement that said that Margaret broke into Diane's house and stole TVs and computers from Diane's home. According to Diane, Wheaton also told her he watches her TV "every day." Diane also testified that Calvin confirmed what Wheaton had told her, namely that Wheaton and Margaret obtained the assistance of Calvin and another man to help carry out a burglary at Diane's residence.
Donald, Officer Gerard, and Officer Hargroeder each testified that the back door of Diane's house appeared to have been forced open or kicked in. Detective Stanford testified that Wheaton gave him a voluntary statement admitting that Wheaton was at Diane's house when some items were taken, and Wheaton's videotaped statement to the police was entered into evidence.
Calvin testified that on August 23, 2013, Wheaton and Margaret asked him to help move some things from Diane's residence. Calvin also told the jury that he and another man loaded one or two TVs and computers into Wheaton and Margaret's truck and unloaded the items at Wheaton and Margaret's house. According to Calvin, they paid him twenty dollars for helping that night.
Although Margaret and Wheaton denied any participation in the break-in and both testified that they were at home all night on August 23, 2013, we find the evidence was sufficient to support the jury's finding of guilty, beyond a reasonable doubt. As noted herein, under the law of parties, an actor may be criminally responsible for an offense committed by another if he solicits, encourages, or assists another in the commission of the offense. See Tex. Penal Code Ann. §§ 7.01, 7.02; Cary, 2016 Tex. Crim. App. LEXIS 1513, at **12-13. The State did not have to prove that Wheaton actually entered Diane's house in order for Wheaton to be found guilty of burglary of a habitation. See Powell, 194 S.W.3d at 506-07. Based on the testimony of Diane and Calvin, as well as the verbal and handwritten statements given by Wheaton, and other evidence presented to the jury, the jury could have reasonably concluded that Wheaton encouraged, assisted, or solicited others to burglarize Diane's house. See Salinas, 163 S.W.3d at 739-40. On this record, the jury could have concluded that the State proved conduct constituting an offense plus some act by Wheaton done with the intent to promote or assist in the offense. See Beier, 687 S.W.2d at 3.
The jury could have disbelieved Wheaton and Margaret's trial testimony. Viewing the evidence in the light most favorable to the verdict, we conclude that a rational jury could have found the elements necessary to conclude beyond a reasonable doubt that Wheaton was criminally responsible under the law of parties for the offense of burglary of a habitation. See Temple, 390 S.W.3d at 360; Hooper, 214 S.W.3d at 13. We overrule Appellant's single issue on appeal, and we affirm the judgment of conviction. AFFIRMED.
/s/_________
LEANNE JOHNSON
Justice Submitted on August 18, 2016
Opinion Delivered March 8, 2017
Do Not Publish Before McKeithen, C.J., Horton and Johnson, JJ.