Cody Ladell Blue v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-95-00005-CR Cody Ladell Blue, Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF LAMPASAS COUNTY, 27TH JUDICIAL DISTRICT NO. 6390, HONORABLE WILLIAM BLACK, JUDGE PRESIDING This appeal is taken from a conviction for intentionally and knowingly desecrating a place of burial. (1) The jury found appellant Cody Ladell Blue guilty and assessed his punishment at ten years' imprisonment and a fine of seven thousand five hundred dollars, but recommended probation, finding that he had never been previously convicted of a felony. The trial court placed appellant on "probation" subject to certain conditions by suspending the imposition of the sentence. Notice of appeal was timely given. In a sole point of error, appellant contends that the "trial court erred in overruling appellant's motion for an instructed verdict." This contention shall be considered as a challenge to the sufficiency of the evidence to support the conviction. See Madden v. State, 799 S.W.2d 683, 689, 689 & n.3 (Tex. Crim. App. 1990), cert. denied, 499 U.S. 954, 111 S. Ct. 1432, 113 L. Ed. 2d 483 (1991); see also Rabbani v. State, 847 S.W.2d 555, 556 (Tex. Crim. App. 1992); Nevarez v. State, 847 S.W.2d 637, 642 (Tex. App.--El Paso 1993, pet. ref'd); Zule v. State, 802 S.W.2d 28, 32 n.3 (Tex. App.--Corpus Christi 1990, pet. ref'd). Appellant cites and relies upon Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L.Ed.2d 560 (1979) and its Texas progeny. We conclude that appellant is challenging the legal sufficiency of the evidence. Former section 42.09 of the Texas Penal Code under which appellant was convicted provided: (a) A person commits an offense if he intentionally or knowingly desecrates: (1) a public monument; or (2) a place of worship or burial. (b) For purposes of this section, "desecrate" means deface, damage, or otherwise physically mistreat in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action. (c) except as provided by Subsection (d) of this section, an offense under this section is a Class A misdemeanor. (d) an offense under this section is a felony of the third degree if a place of worship or burial is desecrated. The indictment in the instant case alleged that on or about April 1, 1994, appellant "intentionally and knowingly desecrated a place of burial, to wit: a cemetery in the City of Lampasas, by then and there removing a stone grave marker of Miguel Perez." Dana Dixon, age seventeen, testified that early one afternoon after January and before May 1994, (2) she encountered appellant at a convenience store in Lampasas. After a conversation, appellant and his companion, a young man about appellant's age, followed Dana to her home. There, appellant expressed interest in the cemetery adjoining the property where Dana lived. All three crossed the barbed wire fence into the cemetery and began to examine the "old graves." According to Dana, appellant and his companion removed a gravestone or monument from a grave site and carried it to appellant's car where it was placed in the back seat. Appellant and his companion then left the scene. Dana identified pictures of the gravestone or monument as the one removed from the cemetery. John Barney testified that he was appellant's roommate in a dormitory apartment at the University of Texas at San Antonio from August 1993 until May 4, 1994. He recalled that on April 19 or 20, 1994, he returned to the apartment and found a gravestone or monument in the living room. He described it as being made of cement and standing about two feet. Appellant explained to Barney that on his way back to San Antonio from Hamilton that he had stopped in Lampasas, met a girl, went to her house, and then into a nearby cemetery where he and his two friends had removed the headstone and small statue or figurine. Peggy A. Layton, director of housing at the University of Texas at San Antonio, testified that on May 3, 1994, she went to appellant's apartment number 2505 at 6685 UTSA Boulevard as a follow-up to the eviction notice which had been sent to appellant because he was delinquent in his rent. She was accompanied by Douglas Sonego, an officer with the UTSA Police Department, which was customary in eviction matters. Layton stated that appellant invited her and the officer into the apartment where she talked to appellant about the overdue rent. Douglas Sonego testified that upon his entry into the apartment he saw a white grave marker about three feet tall bearing the "inscription Miguel Perez with the dates Julio 5, 1875, and Julio 15, 1950." He estimated that the gravestone weighed about one hundred pounds. Timothy Angermann, Assistant Chief of the Lampasas Police Department testified that he conducted an investigation into the missing monument from the Lampasas City Cemetery with the name Perez on it. He related that the gravestone was brought to the Lampasas Police Department by Officer Sonego from San Antonio. He recalled that the gravestone was about four feet tall and bore the first name of Miguel or Manuel. Criminal Investigator Robert Olden related that he was also involved in the investigation of the missing gravestone and that the gravestone was returned on June 15, 1994. After the missing gravestone was photographed, it was returned to the personnel at the Lampasas City Cemetery to be replaced on the grave site. Vivian Uvalle was called as a witness by the State, who represented to the trial court that she was a relative of Miguel Perez and one of several people who cared for the grave. The trial court sustained appellant's objection to Uvalle's testimony because she had not been on a list of State's witnesses furnished appellant during the discovery process. The defense offered no testimony. The trial court charged the jury in accordance with the indictment. The jury returned a guilty verdict. Appellant does not contest the fact that the evidence shows that he was the person who took the monument from the cemetery and concedes that many elements of the offense were proven, but contends that the mere taking of the monument was not "desecration" of the cemetery and that the State produced no evidence to show that the cemetery was a "venerated place" or that the monument was a "venerated" object. Section 42.09 defined "desecrate" as meaning to "deface, damage, or otherwise physically mistreat in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action." One of the essential elements of the offense charged was that appellant knowingly defaced, damaged or physically mistreated a place of burial--the cemetery--in a way that he knew would seriously offend persons aware of his actions. See Mullinax v. State, 756 S.W.2d 40, 42 (Tex. App.--Texarkana 1988, no pet.). Thus, section 42.09 focused upon conduct which the actor knows will offend another; the underlying concern was the outrage or resentment caused by knowingly and intentionally desecrating a place of burial. The resulting damage or destruction was not at issue and did not figure in the punishment; rather the focus was upon the actor's offensive conduct. See Cullen v. State, 832 S.W.2d 788, 792 (Tex. App.--Austin 1992, pet. ref'd). Proof of a culpable mental state generally relies upon circumstantial evidence. Dillon v. State, 574 S.W.2d 92, 94 (Tex. Crim. App. 1978); Rodriguez v. State, 793 S.W.2d 744, 748 (Tex. App.--San Antonio 1990, no pet.). Mental culpability is of such a nature that it generally must be inferred from any facts in evidence which tend to prove the existence of such intent. Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991), cert. denied, 112 S. Ct. 2944 (1992); Skillern v. State, 890 S.W.2d 849, 880 (Tex. App.--Austin 1994, pet. ref'd). Intent and knowledge can be inferred from conduct of, remarks by, and circumstances surrounding the acts engaged in, by accused. Dues v. State, 634 S.W.2d 304, 305 (Tex. Crim. App. 1985); Romo v. State, 593 S.W.2d 690, 693 (Tex. Crim. App. 1980); Parramore v. State, 853 S.W.2d 741, 745 (Tex. App.--Corpus Christi 1993, pet. ref'd); Castellano v. State, 810 S.W.2d 800, 807 (Tex. App.--Austin 1991, no pet.); Ercanbrack v. State, 646 S.W.2d 480, 481 (Tex. App.--Houston [1st Dist.] 1982, no pet.). In the instant case, the evidence is undisputed that appellant physically removed the gravestone from a grave site in the cemetery in question, transported it many miles, and set up the gravestone in a living room for decoration or a conversation piece. Officer Sonego was clearly offended when he saw the gravestone in appellant's living room, took it into custody and returned it to Lampasas so that it could be returned to the cemetery where it belonged. We reject appellant's claim of lack of proof of desecration. Likewise, we reject appellant's claim that the State failed to prove that the cemetery or monument was a venerated place or object. The word "venerated" is not found in the body of the statute nor was it alleged in the indictment in a manner that would require the State to prove it. While the legislature entitled or labeled section 42.09 "Desecration of Venerated Object," that title was not a part of the statute that must be alleged and proved. Appellant's contention is without merit. The standard for reviewing the legal sufficiency of the evidence is whether viewing the evidence in the light most favorable to the jury's verdict and measured against the charge given to the jury, any rational trier of fact could have found beyond a reasonable doubt the essential elements of the offense charged. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Villalon v. State, 791 S.W.2d 130, 132 (Tex. Crim. App. 1990); Valdez v. State, 776 S.W.2d 162, 165 (Tex. Crim. App. 1989), cert. denied, 495 U.S. 963 (1990). The standard of review is the same in both direct and circumstantial evidence cases. Herndon v. State, 787 S.W.2d 408, 409 (Tex. Crim. App. 1990). It is not the reviewing court's duty to disregard, realign, or weigh the evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). The jury is the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). The jury is free to accept or reject any or all of the evidence presented by either party. Saxton, 804 S.W.2d at 914; Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987). Viewing the evidence in the light most favorable to the jury's verdict and measured against the jury charge, we conclude that any rational trier of fact could have found beyond a reasonable doubt all the essential elements of the offense charged. Appellant's sole point of error is overruled. The judgment is affirmed. John F. Onion, Jr., Justice Before Justices Aboussie, Kidd and Onion* Affirmed Filed: March 20, 1996 Do Not Publish * Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988). 1. Act of May 24, 1973, 63d Leg., R.S., ch. 399, 1973 Tex. Gen. Laws 883, 957 amended by Act of May 29, 1989, 71st Leg., R.S., ch. 253, § 2, 1989 Tex. Gen. Laws 5055, 5056 amended by Act of July 17, 1989, 71st Leg., 1st C.S., ch. 27, § 2, 4, 1989 Tex. Gen. Laws 94 (former Tex. Penal Code § 42.09), repealed and deleted by Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3679, effective Sept. 1, 1994. 2. Appellant's counsel conceded in jury argument that the State had proved the date alleged in the indictment. 5 (Tex. App.--Corpus Christi 1993, pet. ref'd); Castellano v. State, 810 S.W.2d 800, 807 (Tex. App.--Austin 1991, no pet.); Ercanbrack v. State, 646 S.W.2d 480, 481 (Tex. App.--Houston [1st Dist.] 1982, no pet.). In the instant case, the evidence is undisputed that appellant physically removed the gravestone from a grave site in the cemetery in question, transported it many miles, and set up the gravestone in a living room for decoration or a conversation piece. Officer Sonego was clearly offended when he saw the gravestone in appellant's living room, took it into custody and returned it to Lampasas so that it could be returned to the cemetery where it belonged. We reject appellant's claim of lack of proof of desecration. Likewise, we reject appellant's claim that the State failed to prove that the cemetery or monument was a venerated place or object. The word "venerated" is not found in the body of the statute nor was it alleged in the indictment in a manner that would require the State to prove it. While the legislature entitled or labeled section 42.09 "Desecration of Venerated Object," that title was not a part of the statute that must be alleged and proved. Appellant's contention is without merit. The standard for reviewing the legal sufficiency of the evidence is whether viewing the evidence in the light most favorable to the jury's verdict and measured against the charge given to the jury, any rational trier of fact could have found beyond a reasonable doubt the essential elements of the offense charged. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Villalon v. State, 791 S.W.2d 130, 132 (Tex. Crim. App. 1990); Valdez v. State, 776 S.W.2d 162, 165 (Tex. Crim. App. 1989), cert. denied, 495 U.S. 963 (1990). The standard of review is the same in both direct and circumstantial evidence cases. Herndon v. State, 787 S.W.2d 408, 409 (Tex. Crim. App. 1990). It is not the reviewing court's duty to disregard, realign, or weigh the evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). The jury is the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). The jury is free to accept or reject any or all of the evidence presented by either party. Saxton, 804 S.W.2d at 914; Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987). Viewing the evidence in the light most favorable to the jury's verdict and measured against the jury charge, we conclude that any rational trier of fact could have found beyond a reasonable doubt all the essential elements of the offense charged. Appellant's sole point of error is overruled. The judgment is affirmed. John F. Onion, Jr., Justice Before Justices Aboussie, Kidd and Onion* Affirmed Filed: March 20, 1996 Do Not Publish *