Juan Miguel Gonzalez v. State

No. 04-99-00640-CR Juan Miguel GONZALEZ, Appellant v. The STATE of Texas, Appellee From the 63rd Judicial District Court, Val Verde County, Texas Trial Court No. 8601 Honorable George M. Thurmond, Judge Presiding Opinion by: Alma L. López, Justice Sitting: Tom Rickhoff, Justice Alma L. López, Justice Paul W. Green, Justice Delivered and Filed: May 10, 2000 AFFIRMED This appeal arises from a burglary conviction. A jury convicted the appellant, 17-year-old Juan Miguel Gonzalez, for burglarizing a building used for concession sales at Roosevelt Park in Del Rio. The jury sentenced Gonzalez to eighteen months in a state jail and probated the sentence. Gonzalez appeals his conviction in this appeal. Ruling on the Motion for New Trial In his first issue, Gonzalez contends that the trial judge erred by denying his motion for a new trial because the evidence presented at trial is both legally and factually insufficient to support his conviction. The court of appeals ordinarily reviews the trial judge's ruling on a motion for new trial using an abuse of discretion standard; however, where a new trial is sought on the grounds of insufficient evidence, the court of appeals applies the same standard of review that is applied when reviewing the sufficiency of the evidence. See State v. Macias, 791 S.W.2d 325, 329-30 (Tex. App.­San Antonio 1990, pet. ref'd); State v. Daniels, 761 S.W.2d 42, 45 (Tex. App.­Austin 1988, pet. ref'd). As a result, we will review Gonzalez's complaint about the legal sufficiency of the evidence using the standard set out in Jackson v. Virginia, 443 U.S. 307, 319 (1979). To review a challenge about the legal sufficiency of the evidence under Jackson, the court of appeals reviews the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). In conducting this review, the jury serves as the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony; and therefore, reconciliation of conflicts in the evidence is within the exclusive province of the jury. See Mosley, 983 S.W.2d at 254. To review a challenge to the factual sufficiency of the evidence, the court of appeals reviews the evidence without the prism of "in the light most favorable to the prosecution" and sets aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). We will first consider Gonzalez's legal sufficiency complaint. For Gonzalez's conviction to be legally sufficient, the State had to prove that Gonzalez entered the building used for the concession sales, without the effective consent of the owner, at a time the building was not open to the public, with the intent to commit theft. See Tex. Pen. Code § 30.02 (Vernon Supp. 2000). Although the State proved these requirements using circumstantial evidence, the evidence is legally sufficient to support the conviction when viewed in the light most favorable to the verdict. Lloyd Argabright, the player agent for the Babe Ruth baseball league, testified that he secured the concession stand at about 8:30 p.m. on the evening of the burglary. Argabright further testified that he received a call that the concession stand had been burglarized about 1:00 a.m. and that upon his arrival, he observed that someone had forced the screen in the door of the concession stand open. Argabright stated that he did not give anyone permission to enter the concession stand that night and that the concession stand was not open to the public at the time of the burglary. Argabright testified that the police returned the recovered merchandise to him, and that he recognized the merchandise as having come from the concession stand. Officer Roberto Garcia, a patrol sergeant with the Del Rio Police Department, testified that he took photographs of the concession stand after he arrived at 1:00 a.m. Garcia described the small screen-covered opening in the door of the concession stand, and stated that although a big man would be unable to enter the building through the hole, a small person could enter through the hole to unlock the door from the inside of the building. Garcia also identified the photos he took of the door as fairly representing the way he observed the door when he arrived. Coupled with Argabright's testimony, Garcia's testimony proved that someone had entered the concession stand without the effective consent of the owner, at a time the building was not open to the public. Officer Roberto Sanchez, dispatcher for the Del Rio Police Department, testified that he received a call at 12:25 a.m. from a resident who stated that she had seen two males with boxes walking from Roosevelt Park. Officer Sanchez further testified that he dispatched officers to investigate the call. According to Officer Sanchez, Officer Adrianna Castillo reported her arrival at the scene at 12:26 a.m. Officer John Lissner reported arriving at 12:27 a.m. This testimony placed police officers at the location where Gonzalez was arrested within two minutes of the call about the two men with boxes. Officer Castillo testified that after she was dispatched to the scene of a reported burglary, she proceeded down Spring Street, near the park, in her patrol car with the car lights out. According to Castillo, she observed three males, one of them carrying a box. Two of the males ran off as she approached, and Gonzalez backed under a tree. After approaching Gonzalez, Castillo grabbed Gonzalez, arrested him, and placed him in her patrol car. She then left to pursue the other two males and subsequently apprehended a juvenile, H.A. Officer Castillo further testified that Officer Lissner apprehended the third male, another juvenile, R.T. Castillo testified that she observed three boxes where the three males were standing and that the boxes were very heavy. This testimony places Gonzalez at the location where the stolen merchandise was found and very close to the location from which the merchandise was taken. A rational jury could have inferred from the foregoing evidence that a theft had been committed and that the person who took the merchandise from the concession stand entered with the intent to commit theft. Although Gonzalez maintains that this evidence constitutes no more than mere presence at the scene, the jury was permitted to infer Gonzalez's entry into the concession stand, and an intent to commit theft, from his presence with two other males and three heavy boxes of stolen merchandise, shortly after midnight. As a result, a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Consequently, the evidence is legally sufficient to support Gonzalez's conviction. The evidence is also sufficient to factually support the conviction. Even though Gonzalez explained in his testimony why he was near the stolen merchandise and why he did not run when Officer Castillo approached, the jury was free to disbelieve Gonzalez. Gonzalez testified that he had been at H.A.'s house prior to the burglary and that H.A. left with an individual called "Raton." Gonzalez further testified that he and his friend, R.T., another juvenile, left the house at 11:00 or 11:30 p.m. to walk his girlfriend home. Gonzalez explained that H.A. and Raton called to him after he and R.T. left his girlfriend's house, and that H.A. asked him to help carry some boxes. According to Gonzalez, H.A. and R.T. ran away when the police arrived because they were violating curfew, but he stayed because he was seventeen and had not done anything wrong. H.A., in juvenile detention at the time of Gonzalez's trial, corroborated Gonzalez's story to some extent, as did R.T. and Gonzalez's girlfriend. Although their testimony could have exonerated Gonzalez if believed, the jury serves as the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony. Clearly, the jury did not believe Gonzalez, H.A., R.T., or Gonzalez's girlfriend, and we will not second guess the jury. The verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust, and as a result, the evidence is factually sufficient to support the conviction. Because the evidence is legally and factually sufficient to support the verdict, the trial judge did not err by denying Gonzalez's motion for new trial. Having determined that the trial judge did not err, we overrule Gonzalez's issue about the denial of his motion for new trial. Jury Charge Gonzalez argues in his second issue that the trial judge erred by instructing the jury on the law of parties. The test for determining whether the trial judge should instruct the jury on the law of parties is as follows: Where the evidence introduced upon the trial of the cause shows the active participation in the offense by two or more persons, the trial court should first remove from consideration the acts and conduct of the non-defendant actor. Then, if the evidence of the conduct of the defendant then on trial would be sufficient, in and of itself, to sustain the conviction, no submission of the law of principals is required. . . . On the other hand, if the evidence introduced upon the trial of the cause shows, or raises an issue, that the conduct of the defendant then upon trial is not sufficient, in and of itself, to sustain a conviction, the State's case rests upon the law of principals and is dependent, at least in part, upon the conduct of another. In such a case, the law of principals must be submitted and made applicable to the facts of the case. McCuin v. State, 505 S.W.2d 827, 830 (Tex. Crim. App.1974); see Etheridge v. State,903 S.W.2d 1, 3 (Tex. Crim. App. 1994). Applying this test to the instant case, the evidence showed that Gonzalez was found with three heavy boxes of stolen merchandise shortly after the phone call about the male carrying a box. Officer Castillo testified that she observed three heavy boxes when she discovered Gonzalez and the two other males. Castillo stated that she had difficulty carrying the boxes to her patrol car. This evidence raised an issue about whether Gonzalez acted alone to commit the burglary: i.e., could Gonzalez carry the three boxes of stolen merchandise from the concession stand to where he was found without assistance? As a result, the State's case relied in part on the law of parties because a question existed about whether a single individual could take the boxes from the concession stand to the street where Gonzalez was found. Because the evidence raised this issue, the trial judge did not err by instructing the jury on the law of parties. We overrule Gonzalez's second issue. Conclusion Having overruled both of Gonzalez's issues on appeal, we affirm the conviction. Alma L. López, Justice DO NOT PUBLISH