Reginald Anthony Price v. The State of Texas--Appeal from County Court at Law No 2 of Fort Bend County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00136-CR

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REGINALD ANTHONY PRICE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law No. 2

Fort Bend County, Texas

Trial Court No. 110455

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Reginald Anthony Price stood in the parking lot of Katy Mills Mall. When he noticed a uniformed mall security officer escorting a shopper from the mall generally in Price's direction, Price called out to his friend, Joseph Flores, "let's go," "someone's coming," "hurry up," or "someone is coming, let's go." At the time, Flores was inside an open convertible owned by Dat Nguyen, // unsuccessfully trying to steal Nguyen's sound equipment.

Convicted of burglary of a motor vehicle, // Price asserts on appeal that "certain evidence" should have been excluded because video and audio tapes were allegedly not fully disclosed by the State and that the evidence was legally and factually insufficient to establish that Price was a party to Flores' motor vehicle burglary. We affirm because (1) Price has not shown himself entitled to the exclusion of any evidence, and (2) legally and factually sufficient evidence supports the jury's implicit finding that Price was a party to the offense.

(1) Price Has Not Shown Himself Entitled to the Exclusion of Any Evidence

Price's first point of error asserts that "[w]here audio recording evidence is lost, destroyed, or unproduced at trial, such evidence should be excluded at trial."

Officer Lee Hernandez testified, and a videotape recorded by the equipment in his police vehicle was admitted into evidence, though the videotape had sound on only part of the relevant segments of the tape. Officer Jeron Barnett also testified, and indicated that his police vehicle a different vehicle from that driven by Hernandez also had video equipment that recorded video of part of the investigation at the scene of Price's arrest. The videotape from Barnett's vehicle was not produced by the State. The absence of the Barnett videotape appears to be the point of Price's complaint. Citing one case, Barre v. State, 826 S.W.2d 722, 724 (Tex. App. Houston [14th Dist.] 1992, pet. ref'd), Price argues that "certain evidence" should have been excluded because of the nonproduction of the Barnett videotape.

Barre recites the rule that, where the State is ordered to produce specified evidence to the defendant, and yet willfully withholds that evidence, the evidence may not be used by the State at trial. Id. at 723. Barre also recites the rule that the State has an obligation to disclose exculpatory evidence. Id. at 724. But Barre's holding is that because the defendant failed to demonstrate (1) the State willfully disobeyed a discovery order, (2) the State destroyed evidence in bad faith, or (3) evidence not disclosed by the State was truly exculpatory the defendant was not entitled to relief. Id. at 724 25.

Here, there is no showing of any production order that was violated by the State. Nor is there any showing that the State destroyed evidence, much less that any such destruction was willful or in bad faith. Finally, there is no showing that the Barnett videotape contained any exculpatory material. Barre would deny Price any relief here. See id.

Price's summary of argument on this issue calls for the exclusion of "certain testimony." Nothing in his brief specifies what evidence should have been excluded. Nowhere in the record does Price specify where he lodged an objection to the admission of any evidence. We will not search for any such objection. See Tex. R. App. P. 38.1(f), (h), (i) (record references required in statement of facts and argument; clarity required in point of argument and prayer). The Hernandez videotape was admitted into evidence after Price's counsel said "no objection" to its admission. That waives any error as to its admission. Swain v. State, 181 S.W.3d 359, 368 (Tex. Crim. App. 2005); Jones v. State, 833 S.W.2d 118, 126 (Tex. Crim. App. 1992). We overrule Price's first point of error.

(2) Legally and Factually Sufficient Evidence Supports the Finding that Price Was a Party to the Offense

In reviewing the legal sufficiency of the evidence, we examine the relevant 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. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In our review of the factual sufficiency of the evidence concerning matters where the State has the ultimate burden of proof or persuasion, we employ the standards set forth in Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). We view all the evidence in a neutral light and determine whether the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt or if evidence contrary to the verdict is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Threadgill v. State, 146 S.W.3d 654, 664 (Tex. Crim. App. 2004) (citing Zuniga, 144 S.W.3d at 486). If the evidence is factually insufficient, we must reverse the judgment and remand for a new trial. Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996).

Price heard Flores state his intent to burglarize the vehicle in question before Flores actually did so. While Flores was burglarizing the vehicle, Price stood by and announced to Flores the approach of third parties, notably including a mall security guard. After knowing that Flores had burglarized the vehicle, Price drove him from the scene. Price's protestations concerning his lack of intent to help Flores, or his argument concerning the tough situation Price was in when his friend burglarized a vehicle, but Price's vehicle was the only way Flores could get home, fail to offer a sufficient response to blunt the facts of this case. It is sufficient for conviction as a party to an offense that the defendant simply drove the primary actor away from the scene. See Thompson v. State, 697 S.W.2d 413, 417 (Tex. Crim. App. 1985); Gerzin v. State, 447 S.W.2d 925, 926 (Tex. Crim. App. 1969); Greer v. State, 168 Tex. Crim. 485, 329 S.W.2d 885, 886 (1959); Webber v. State, 757 S.W.2d 51, 55 56 (Tex. App. Houston [14th Dist.] 1988, pet. ref'd). The evidence is legally and factually sufficient to sustain Price's conviction.

We affirm the trial court's judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: March 17, 2006

Date Decided: May 23, 2006

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