Frank James Webb v. State

11th Court of Appeals Eastland, Texas Opinion Frank James Webb Appellant Vs. No. 11-02-00068-CR B Appeal from Erath County State of Texas Appellee The jury convicted appellant of engaging in organized criminal activity by committing burglary of a habitation. TEX. PENAL CODE ANN. '' 30.02 & 71.02 (Vernon Supp. 2003). The jury then assessed punishment at 20 years confinement and a $10,000 fine. Appellant presents three issues on appeal. He argues that there was insufficient evidence to corroborate the accomplice testimony, that there was insufficient evidence that appellant was engaging in organized criminal activity, and that the trial court erred in not granting a motion for a directed verdict because the structure in question was not a habitation. We affirm. Background Facts The complainant lived in a house several miles from town on the Lingleville Highway. During the summer of 2001, the complainant was remodeling his house; and, while the remodeling was taking place, the complainant and his family moved to temporary quarters in town. The extensive remodeling left the home without running water, furniture, cabinets, or carpet. Appellant was employed by the painting contractor. During the repainting, the painters, including appellant, found a hidden door behind a cabinet that led to a storm cellar that was being used by the complainant to store valuable items. The complainant returned to the home in August and discovered that the cellar had been ransacked. Corroboration of Accomplice Testimony Under TEX. CODE CRIM. PRO. ANN. art. 38.14 (Vernon 1979), a conviction cannot stand on accomplice testimony unless it is corroborated by other evidence tending to connect the defendant with the offense; the evidence is insufficient if it merely proves the commission of the offense. Cathey v. State, 992 S.W.2d 460, 462 (Tex.Cr.App.1999), cert. den=d, 528 U.S. 1082 (2000). When considering accomplice testimony in determining the sufficiency of the corroborating evidence, all of the accomplice testimony is eliminated from consideration. McDuff v. State, 939 S.W.2d 607, 612 (Tex.Cr.App.), cert. den=d, 522 U.S. 844 (1997). The remaining evidence is then considered in the light most favorable to the jury=s verdict. Gill v. State, 873 S.W.2d 45, 48 (Tex.Cr.App.1994). It is not necessary that the corroborating evidence directly connect the defendant to the crime or that it be sufficient by itself to establish guilt; it need only tend to connect the defendant to the offense. Cathey v. State, supra at 462. If the combined weight of the non-accomplice evidence tends to connect the defendant to the offense, the requirement of Article 38.14 has been fulfilled. Cathey v. State, supra at 462. The State relied primarily upon accomplice testimony to convict appellant. Three accomplices testified at trial. Kaylynn Teter, an accomplice, testified that her husband was Albert Webb, appellant=s brother. Teter overheard a conversation between appellant and Aaron Taft discussing the burglaries. Taft was talking about some money, guns, and coins that he had taken. Appellant then gave Teter and Albert Webb $5,000 in cash for a car. Teter said that appellant received the money from Taft. Teter also testified that Taft and appellant brought guns and coins to appellant=s house and that she and Albert Webb were to take them to California. Teter, Taft, and Albert Webb sold the coins in Kingman, Arizona, to Travis Smith, a cousin of both appellant and Albert Webb. Taft testified that he learned of the complainant=s house from appellant. Appellant, Taft, and Jamie Carman went to the complainant=s home. Appellant opened the garage door, and appellant and Taft went into the cellar and took some money and guns from the safe. Taft and appellant then went to Arizona and California to sell the guns and coins. They traded some guns in California for drugs. Taft also testified that he and appellant divided most of the money but that they gave some money to Carman and appellant=s father. Carman testified that she, appellant, and Taft drove to the complainant=s house and that appellant and Taft entered the house through the garage door. They returned carrying bank bags. Appellant drove the car to and from the complainant=s house. They went to Carman=s apartment and opened the bags. Taft gave Carman about $1,800 in 20 dollar bills. Several days later, Carman, Taft, and appellant went back to the complainant=s house to steal more property. This time, they returned with guns. Carman was given two guns to keep. Non-accomplice testimony included testimony by the painting contractor that appellant worked for him as a painter=s helper for two weeks during June 2001, that appellant was part of the painting crew that found the hidden door, and that appellant also knew where the garage door opener was placed to allow the painters to gain access to the house. The painting contractor further testified that appellant did not show up for work on June 28, 2001, and that appellant had not returned to claim his last paycheck. Officer Larry Wand testified that property stolen from the complainant was found in the house where appellant lived and that, while the search warrant was being executed, appellant drove up in a maroon Ford Mustang. Officer Tommy Williford testified that a confidential informant told him that stolen property in Dublin was coming from a residence on the Lingleville Highway. The confidential informant also said that a construction crew was present and that there were multiple burglaries of the same house. Officer Williford also found the complainant=s stolen property at three other locations where friends or relatives of appellant lived. Richard Lynn George testified that he sold a maroon Ford Mustang in July 2001 to Albert Webb for $5,500 cash. Together, this non-accomplice evidence tends to connect appellant with the crime. See Cathey v. State, supra at 462. We overrule appellant=s first issue. Organized Criminal Activity In his second issue, appellant complains that the trial court erred in denying his motion for new trial because the evidence was insufficient to support the jury=s verdict that he engaged in organized criminal activity. To determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000). In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak as to render the conviction clearly wrong and manifestly unjust or whether the evidence supporting guilt, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust. Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Goodman v. State, 66 S.W.3d 283 (Tex.Cr.App.2001); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App.2000); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996). To be convicted of engaging in an organized criminal activity, a defendant must have committed, or conspired to commit, an underlying offense with the specific intent to participate in that offense with three or more persons. Shears v. State, 895 S.W.2d 456, 459 (Tex.App. - Tyler 1995, no pet=n); see Barber v. State, 764 S.W.2d 232, 234-35 (Tex.Cr.App.1988). By definition, a person Aconspires to commit@ an offense when he agrees with others to engage in conduct that would constitute an offense and performs some overt act pursuant to their agreement. TEX. PENAL CODE ANN. ' 71.01 (Vernon Supp. 2003). Evidence of the defendant's conduct and systematic methods of operation together with evidence of group participation in joint activities supports a conviction. Shears v. State, supra at 459; Kennard v. State, 649 S.W.2d 752, 764 (Tex.App. B Fort Worth 1983, pet=n ref'd). Appellant=s intent can be determined from his words, acts, and conduct. Shears v. State, supra at 459. An agreement may be inferred from the acts of the parties. Section 71.01(b); Shears v. State, supra 459 (Tex.App. - Tyler 1995, no pet=n). Because the nature of the offense of engaging in criminal activity involves working within a conspiracy, direct evidence is rarely available; and the State must rely on circumstantial evidence to prove the essential elements of the offense. Shears v. State, supra at 459. In a circumstantial evidence case, it is not necessary that every fact point directly and independently to the guilt of the accused. Shears v. State, supra at 459. Appellant states that the State did not prove that a combination existed. A combination is defined as three or more persons who collaborate in carrying on criminal activities. Section 71.01(a). Appellant points to the testimony of Taft where Taft says that appellant threatened to kill him if he did not participate in the first burglary. Appellant also points to the testimony by both Taft and Carman where they said that the first burglary was made without any deliberation. However, there is evidence that Taft, Carman, and appellant burglarized the house at least twice and that each person participated in the proceeds. The fact finder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. TEX. CODE CRIM. PRO. ANN. arts. 36.13 & 38.04 (Vernon 1979 & 1981); Adelman v. State, 828 S.W.2d 418, 421 (Tex.Cr.App.1992). The fact finder may choose to believe or disbelieve all or any part of any witness=s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Cr.App.1986), cert. den=d, 488 U.S. 872 (1988). In viewing the evidence in the light most favorable to the verdict, the evidence that Taft, Carman, and appellant burglarized the same house on multiple occasions and split the proceeds is ample to support appellant=s conviction. The accomplice testimony was supported by non-accomplice evidence; therefore, the accomplice testimony may be considered for all purposes. Having reviewed all of the evidence, we find that the evidence is factually sufficient to support appellant=s guilt. Appellant=s second issue is overruled. The Habitation Appellant=s third issue claims error in overruling appellant=s motion for directed verdict because appellant claims that the structure was not a habitation as defined in the Texas Penal Code. A complaint about overruling a motion for directed verdict is in actuality an attack upon the sufficiency of the evidence to sustain the conviction. McDuff v. State, supra at 613; Cook v. State, 858 S.W.2d 467, 469‑70 (Tex.Cr.App.1993). When reviewing the legal sufficiency of the evidence to determine whether the State has indeed proven an element of the offense, this court must look at all the evidence in the light most favorable to the verdict. In applying the criminal standard of review, this court does not ask whether it believes that the evidence at trial established beyond a reasonable doubt that the house undergoing a major renovation was a Ahabitation.@ Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the house was a Ahabitation@ beyond a reasonable doubt. Jackson v. Virginia, supra at 318‑19; see Clewis v. State, 922 S.W.2d 126, 128‑29 (Tex.Cr.App.1996). The trier of fact is the exclusive judge of the credibility of witnesses and the weight to be given their testimony and is free to accept or reject any or all of any witness=s testimony. Articles 36.13 & 38.04; Adelman v. State, supra at 421. TEX. PENAL CODE ANN. ' 30.01 (Vernon 1994) defines Ahabitation@ as Aa structure...that is adapted for the overnight accommodation of persons.@ The controlling standard for determining whether a structure qualifies as a habitation under this definition is expressed in Blankenship v. State, 780 S.W.2d 198 (Tex.Cr.App.1989)(opinion on reh=g). The Blankenship court noted that determining whether a structure is or is not suitable for the overnight accommodation of persons is a Acomplex, subjective factual question fit for a jury=s determination.@ Blankenship v. State, supra at 209. Factors to be considered include whether the structure was being used as a residence at the time of the trespass; whether the structure Acontained bedding, furniture, utilities, or other belongings common to a residential structure@; and whether the structure was of such character that it was likely intended to accommodate persons overnight. Blankenship v. State, supra at 209. The Blankenship court explicitly offered a house as an example of this last factor and noted that A[a]ll of these factors are relevant; none are essential or necessarily dispositive.@ Blankenship v. State, supra at 209. We have reviewed all the evidence in the present case using the foregoing standard, and we conclude that a reasonable trier of fact could have determined that the house was Aadapted for the overnight accommodation of persons.@ At the time of the burglaries, the house had been vacant for about three or four months. The furniture in the house was being stored in one room to protect it from paint while the interior of the house was being painted; and, because the sinks and toilets were also being remodeled, the water had been shut off. On the other hand, the complainant still considered the house his home; and, during the renovation period, the complainant and his family went to the house almost daily. The house had electrical power, and the complainant and his family still had personal possessions in the house. Also, the structure was a house that the complainant and his family lived in prior to the renovation and planned to live in after the renovation was completed. Based on the facts and circumstances of this case, we conclude that the record contains sufficient evidence from which a rational trier of fact could have found beyond a reasonable doubt that the complainant=s home was a Ahabitation@ within the meaning of Section 30.02(d)(1). We overrule appellant=s third issue. This Court=s Ruling The judgment of the trial court is affirmed. TERRY McCALL JUSTICE January 16, 2003 Do not publish. See TEX.R.APP.P. 47.2(b). Panel consists of: Arnot, C.J., and Wright, J., and McCall, J.