Rodney Steven Ryan v. State

Affirmed and Memorandum Opinion filed December 23, 2008 Affirmed and Memorandum Opinion filed December 23, 2008. In The Fourteenth Court of Appeals ____________ NO. 14-08-00027-CR ____________ RODNEY STEVEN RYAN, Appellant v. THE STATE OF TEXAS, Appellee On Appeal from the 232nd District Court Harris County, Texas Trial Court Cause no. 1109793 M E M O R A N D U M   O P I N I O N Following a jury trial, appellant, Rodney Steven Ryan, was convicted of the felony offense of burglary of a habitation. See Tex. Penal Code Ann. ' 30.02 (Vernon 2003). The trial judge sentenced appellant to confinement for twelve years. In one issue, appellant contends the evidence presented at trial is legally insufficient to support his conviction. We affirm the judgment. BACKGROUND At trial, the jury heard testimony from two witnesses: the complainant, Harris Gallego, and his neighbor, Ronnie Thomas. Their testimony, which we view in the light most favorable to the jury=s verdict,[1] may be fairly summarized as follows: On March 26, 2007, Thomas saw a black male on the porch of his neighbor, Gallego, a landscaper who was cutting lawns in the neighborhood. Residents of the neighborhood had experienced a rash of recent break-ins and, because Thomas had known Gallego to associate with only Hispanic individuals, he considered the situation suspicious. He notified Gallego, who returned to his house to investigate. Upon arrival, Gallego saw appellant on his property behind the house. He also observed an unidentified woman inside his house; neither the woman nor appellant had permission to be on his property, much less inside his house. Apparently realizing she had been discovered, the woman appeared to shout something to the appellant. Both fled to a fence that borders appellant=s property, which abuts a motel parking lot. While they ran, Gallego heard them continue to communicate. He likewise ran to the fence and peered over, where he spied two more men standing on the motel=s side of the fence. Next to the men was a stack of Gallego=s property that had been piled in the motel parking lot. The two men were waiting to assist the woman, who was unable to climb the fence on her own. On Gallego=s side of the fence, then, appellant assisted the woman over the fence and then scaled it himself. The four persons, who continued to communicate with each other, then ran to the motel where they moved between rooms and changed clothes. The police apprehended appellant, who was not found to be in possession of Gallego=s property. The police also returned Gallego=s property that had been stacked in the motel parking lot. When Gallego returned to his house, he discovered more of his property that had been piled in the living room, presumably to be removed from the house. Appellant pleaded Anot guilty@ to the indicted charge of burglary of a habitation with the intent to commit theft. The jury was instructed that it could find appellant criminally responsible under the Alaw of parties@: All persons are parties to an offense who are guilty of acting together in the commission of the offense. A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. 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, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Mere presence alone will not constitute one a party to an offense. The jury found appellant guilty as charged in the indictment, and the trial court sentenced appellant to confinement for twelve years. This appeal followed. Appellant contends the evidence is legally insufficient to support the judgment of conviction. STANDARD OF REVIEW In a legal-sufficiency review, we view all of 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We may not re-evaluate the weight and credibility of the evidence but, instead, only ensure the jury reached a rational decision. See Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993); Harris v. State, 164 S.W.3d 775, 784 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d). The jury is the sole judge of the credibility of the witnesses, and may freely believe or disbelieve all or part of a witness=s testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). To the extent the record presents conflicting evidence or inferences, we presume the fact-finder resolved the conflicts in favor of the verdict, and we therefore defer to that determination. See Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778. We treat direct and circumstantial evidence equally: ACircumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt.@ Clayton, 235 S.W.3d at 778 (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). ANALYSIS Appellant observes that the record is devoid of any evidence that he entered the habitation. However, the charge authorized the jury to find appellant guilty as either a principal or a party to the offense. See Tex. Penal Code '' 7.01(a), 7.02(a)(2) (Vernon 2003). Therefore, if there is legally sufficient evidence that appellant acted as either a principal or party to the offense, we will uphold the jury=s verdict. See Rabbani v. State, 847 S.W.2d 555, 558 (Tex. Crim. App. 1992) (AThe principle is well-established that when the jury returns a general verdict and the evidence is sufficient to support a guilty finding under any of the allegations submitted, the verdict will be upheld.@). Under the Alaw of parties,@ a person can be guilty of burglary if he acts together with another in the commission of the offense, even though he does not personally enter the burglarized premises. Wilkerson v. State, 874 S.W.2d 127, 129 (Tex. App.CHouston [14th Dist.] 1994, pet. ref=d) (citing Clark v. State, 543 S.W.2d 125, 127 (Tex. Crim. App. 1976)). Therefore, if appellant acted together with another in the commission of the burglary, the State need not prove that he actually entered Gallego=s house. See Wilkerson, 874 S.W.2d at 129. When, as here, the defendant is not the Aprimary actor,@ the State must prove (1) conduct constituting an offense, and (2) an act by the defendant that was done with the intent to promote or assist such conduct. Christensen v. State, 240 S.W.3d 25, 31 (Tex. App.CHouston [1st Dist.] 2007, pet. ref=d). A. Conduct Constituting an Offense To establish that a burglary was committed, the State had to prove (1) entry into a habitation, (2) without the owner=s effective consent, and (3) with the intent to commit a theft. See Tex. Penal Code Ann. ' 30.02(a)(1); Draper v. State, 681 S.W.2d 175, 177 (Tex. App.CHouston [14th Dist.] 1984, pet. ref=d). Appellant does not challenge the first two elements and, in fact, the State offered direct testimony that appellant=s female companion entered the house without Gallego=s consent or permission. Instead, appellant contends that, because no stolen property was recovered from appellant or the female, the State did not establish the intent to commit theft. We disagree. It is well-settled that actual accomplishment of theft is not a prerequisite to the commission of burglary. See Autry v. State, 626 S.W.2d 758, 762 (Tex. Crim. App. 1982); Phillips v. State, 538 S.W.2d 116, 117 (Tex. Crim. App. 1976). Instead, the State must prove only an intent to commit theft, not that property was actually appropriated or found in the possession of the accused. See Cumpian v. State, 812 S.W.2d 88, 90 (Tex. App.CSan Antonio 1991, no pet.); Reyes v. State, 628 S.W.2d 238, 239 (Tex. App.CSan Antonio 1982, no pet.); Tex. Penal Code Ann. ' 30.02(a)(1).[2] The intent to commit theft may be inferred from the circumstances of the intrusion. Mauldin v. State, 628 S.W.2d 793, 795 (Tex. Crim. App. 1982); McGee v. State, 923 S.W.2d 605, 608 (Tex. App.CHouston [1st Dist.] 1995, no pet.). A jury=s finding of intent to commit theft will not be disturbed on appeal in the absence of testimony that the entry was made with a different intent. See Stearn v. State, 571 S.W.2d 177, 178 (Tex. Crim. App. 1978). The jury may infer an intent to commit theft from a mere disturbance of items inside the burglarized residence. See id. at 177B78 (finding intent to commit theft when defendant was discovered in kitchen, even though nothing had been disturbed); McGee, 923 S.W.2d at 608 (inferring intent from removal of mounted air-conditioning units); Armstrong v. State, 781 S.W.2d 937, 939 (Tex. App.CDallas 1989), aff=d, 805 S.W.2d 791 (Tex. Crim. App. 1991) (shuffling of papers); White v. State, 630 S.W.2d 340, 342 (Tex. App.CHouston [1st Dist.] 1982, no pet.) (movement of welding equipment from back of garage to front). The State offered proof that Gallego=s property was removed from the house and that his tools, VCRs, and other property likewise had been stacked in the living room Alike they [were] ready to take that out from the house.@ See also, e.g., Young v. State, No. 05-05-01607-CR, 2006 WL 2615174, at *5 (Tex. App.CDallas Sept. 13, 2006, no pet.) (mem. op., not designated for publication) (inferring intent from complainant=s testimony that Aitems had been removed from boxes and piled up as if to be carried out@). We hold a rational trier of fact could have found beyond a reasonable doubt that appellant=s female companion, with the intent to commit theft, entered Gallego=s house without his consent. Therefore, we must determine the existence of legally sufficient evidence that appellant, acting with the intent to promote or assist the commission of the burglary, solicited, encouraged, directed, aided, or attempted to aid the female in committing burglary. See Tex. Penal Code Ann. ' 7.02(a)(2); Christensen, 240 S.W.3d at 31. B. Defendant=s Action to Promote or Assist in Commission of Burglary Appellant asserts that his mere presence at the scene of the burglary is not, by itself, sufficient to support a conviction. See Wilkerson, 874 S.W.2d at 130. However, his presence at the scene of an offense is a circumstance tending to prove guilt which may be combined with other facts to show that he was a participant. See id.; Phelps v. State, 730 S.W.2d 198, 200 (Tex. App.CSan Antonio 1987, no pet.). Participation in a criminal enterprise may be inferred from circumstantial evidence. See Phelps, 730 S.W.2d at 200; Draper, 681 S.W.2d at 178. In deciding whether appellant participated as a party to the burglary, we may consider events that occurred before, during, and after the commission of the offense, as well as actions of the defendant which show an understanding and common design to commit the offense. See Wilkerson, 874 S.W.2d at 130; Phelps, 730 S.W.2d at 200 (citing Medellin v. State, 617 S.W.2d 229, 231 (Tex. Crim. App. 1981)). This evidence must show that, at the time of the offense, the parties were acting together, with each contributing some part toward the execution of their common purpose. See Wilkerson, 874 S.W.2d at 130. Appellant argues the only evidence of his involvement consists of conflicting testimony suggesting he helped the female to escape by climbing the fence.[3] He further contends the State did not prove he participated in the burglary itself and that, at most, the evidence reveals him to be a mere trespasser on Gallego=s property. Thus, he suggests this case resembles Strelec v. State, which we find to be factually distinguishable. In Strelec, the appellant was convicted as a party to the offense of burglary. 662 S.W.2d 617, 619 (Tex. App.CHouston [14th Dist.] 1983, pet. ref=d). However, he presented a reasonable hypothesis for his presence near the scene of the offense, and for his association with the principal actor. See id. at 619. This court summarized his involvement as follows: [A]ppellant was present near the scene of the offense; he left the scene; he lied to Reverend Kuneman and Officer Lewman about being alone; he gave Lewman a false name; and he tossed [the principal] the truck keys. There is no showing that appellant had any purpose or design in common with [the principal] to enter the Hockensmith house with the intent to commit theft. Id. Unlike in Strelec, appellant did not testify and did not present a reasonable hypothesis other than his guilt as a party to the offense. See Phelps, 730 S.W.2d at 200. Instead, the jury was presented with circumstantial evidence linking appellant to the burglary. While the principal actor (i.e., the woman) was inside Gallego=s house, appellant was in the back yard, inside the fence that bordered the motel property. Gallego surmisedCwithout objectionCthat appellant=s role in the offense was to receive stolen property from inside Gallego=s house and then convey the goods over the fence to those waiting on the motel side. In fact, several items belonging to Gallego had been removed from his house and were stacked on the other side of the fence, within two yards of two males who were associated with appellant and the principal actor. Additional property had been piled inside Gallego=s house, apparently ready to be removed, as well. Inasmuch as the jury heard evidence that the woman needed help to climb the fence, a rational trier of fact could have concluded that appellant assisted in the commission of the burglary by transporting property from inside the house to the fence, and then over to the two males on the motel side of the property. When the woman was discovered, she ran to the fence while communicating with appellant. Appellant fled as well, accompanying the principal actor and the other two males to the motel, where all proceeded to move between rooms and change clothes. Cf. Strelec, 662 S.W.2d at 618 (observing that defendant was leaving in opposite direction from burglar). Although flight, by itself, will not support a Aguilty@ verdict, evidence of flight from the scene of a crime is a circumstance from which the jury may infer guilt. Phelps, 730 S.W.2d at 200 (citing Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App. 1979)). In light of these facts and the absence of a reasonable hypothesis other than appellant=s guilt, we hold that a jury could, and did, find the essential elements of the crime beyond a reasonable doubt and that appellant acted with the others, according to a common purpose, as a party to the offense. See Phelps, 730 S.W.2d at 200. Therefore, we overrule appellant=s only issue. CONCLUSION We find no error in the appellate record. We therefore affirm the judgment of conviction. /s/ J. Harvey Hudson Senior Justice Judgment Rendered and Memorandum Opinion filed December 23, 2008. Panel consists of Justices Anderson and Frost, and Senior Justice Hudson.* Do Not Publish. Tex. R. App. P. 47.2(b). [1] See Jackson v. Virginia, 443 U.S. 307, 319 (1979). [2] See also Richardson v. State, 888 S.W.2d 822, 824 (Tex. Crim. App. 1994) (AWhen a burglary is committed, the harm results from the entry itself, because the intrusion violates the occupant=s reasonable expectation of privacy. Indeed, once unlawful entry is made, the crime is complete, regardless of whether the intended theft or felony is actually completed.@). [3] Appellant contends Gallego contradicted himself as to who assisted the female over the fence. We disagree. Gallego testified that the woman was assisted both by appellant, on Gallego=s side of the fence, and the other two males, on the motel side. Even were we to recognize a conflict, we must presume the jury resolved testimonial conflicts in the State=s favor, and we will defer to that determination. See Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778. * Senior Justice J. Harvey Hudson sitting by assignment.