John Wayne Richmond v. The State of Texas--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-91-167-CR

JOHN WAYNE RICHMOND,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court # 12,342

O P I N I O N

In light of the recent opinion by the Court of Criminal Appeals in Garcia v. State, // we withdrew, by an order of this court dated June 11, 1992, the original opinion in this cause dated June 3, 1992. The following opinion is now substituted therefor.

John Wayne Richmond appeals his conviction for burglary of a building. Richmond was found guilty by a jury, and, as a result of two prior convictions that enhanced the range of punishment, the jury assessed punishment at ninety-nine years in prison. Because we find the evidence sufficient to sustain the conviction in light of the jury charge, we affirm the judgment.

In point one, Richmond contends that the evidence is insufficient to sustain the conviction of burglary. The indictment in this case alleged Richmond committed the burglary as a primary actor. The court's charge included an abstract instruction on the law of parties. The application paragraph tracked the language of the indictment but failed to include any reference to the immediately preceding general instruction on the law of parties. In Jones v. State, the Court of Criminal Appeals held that in order for the jury to be authorized to convict one as a party, the law of parties must be included in the application paragraph of the charge. // Because the law of parties was not included in the application paragraph, we must determine whether the evidence is sufficient to find Richmond guilty by his own conduct. Because this is a circumstantial evidence case, we must determine whether the evidence excludes every reasonable hypothesis other than the guilt of Richmond as the primary actor. //

Richmond was an inmate of the Texas Department of Criminal Justice Institutional Division, Hughes Unit, in Coryell County. Lieutenant Joe Missildine testified that during the 11:00 p.m. count on October 13, 1990, two inmates were discovered to be missing. After a lockdown of the entire unit, Missildine was notified that a manhole cover of the prison drainage system tunnel had been disturbed. He testified that he climbed down a ladder into the drainage system and discovered that the bars on both sides of the ladder had been cut. Missildine sent Officer Saunders to the back gate where the drainage system tunnel exited the prison. There they found a cutting torch, a flashlight, and dyed prison clothing. Missildine also testified that, when he went back inside the unit to get a camera, he noticed that the maintenance shop had been broken into. According to Missildine, a window had been opened, the window screen was removed, and the door had been opened.

Alfred Lozano, a correctional officer at the Hughes Unit, testified that at about 7:30 p.m., during an earlier count, he saw Richmond and another inmate, Danny Strong, at their assigned positions in the boiler room. Another corrections officer, David McBride, testified that, when they discovered two inmates were missing, he reported that Richmond and Strong had left a note at their assigned positions. Although the note said they were in the kitchen with another inmate, Richmond and Strong could not be found there either.

Robert Jeffcoat, the maintenance supervisor at the Hughes Unit, testified that the maintenance shop was relatively close to the boiler room. He also testified that, prior to the escape, he had occasionally allowed Richmond to accompany technicians into the maintenance building for assigned duties. According to Jeffcoat, he was called to the unit at midnight to inventory the shop after Richmond and Strong were discovered missing. Jeffcoat testified that a brazing torch was missing from the shop area and a radio was missing from the office area. He also noticed flashlights missing from the building. Jeffcoat identified a photograph of the cutting torch found at the drainage exit as that of a modified brazing torch taken from the maintenance shop.

Mark Scott, the grievance coordinator at the Hughes Unit, testified that he found Richmond lying in a field several miles north of the prison at about 10:45 a.m. on October 14. According to Scott, when Richmond was found in the field outside the prison, he was wearing prison cloths that had been dyed black.

One reasonable possibility is that Richmond entered the maintenance building and removed the welding torch, flashlights, and radio. Richmond argues that another reasonable hypothesis is that either an unknown third party burglarized the building and placed the stolen property in the drainage system for their use during the escape or that Strong burglarized the building and informed Richmond of his plan to escape immediately prior to the event. However, Richmond points to no evidence supporting either hypothesis suggesting that he did not enter the building as the primary actor. Without some evidence in support thereof, the "hypothesis" amounts to an unsubstantiated conclusion. // Could Richmond point to the existence of evidence supporting a hypothesis that an unknown third party burglarized the building or a hypothesis that he agreed to participate in the escape only after the burglary was completed, then it might be reasonable for a rational trier of fact to conclude that he did not enter the building. // However, simply suggesting that Richmond did not enter the building, in the absence of evidence in support of such a contention, will not render the evidence presented insufficient to support a conviction. //

The evidence suggests that Richmond had been in the maintenance building on several occasions before the escape and was familiar with its contents, that Richmond and Strong had been seen together at their assigned positions in the boiler room, and that Richmond and Strong had left a note in the boiler room when they left their assigned positions several hours before they were both discovered missing. Therefore, we hold that a rational trier of fact could have concluded that Richmond's "hypothesis" is not "consistent with the circumstances and facts proved" and is "out of harmony" with the evidence presented. // We further hold that a rational trier of fact could have concluded that either hypothesis suggesting that Richmond never entered the building was simply not reasonable. Because we find the evidence is sufficient to support the conviction when viewed in light of the charge given, we overrule point of error one.

In point two, Richmond contends that the court erred in overruling his objection to the court's charge on guilt-innocence regarding the law of parties. However, because we have already concluded that the law of parties was not included in the application paragraph, and that Richmond's guilt must be determined by his own conduct, we do not reach point of error two.

In point three, Richmond contends that the court erred in allowing testimony from a state witness whose name was not included on a witness list given to defense counsel by the State. At trial, the State called Robert Jeffcoat as a witness. Richmond complained that Jeffcoat was not on the witness list provided by the State prior to trial and that "the first time we knew about him was right now." However, Richmond did not request a postponement when he became aware that Jeffcoat would be called as a witness. He also did not file a motion for continuance pursuant to article 29.13 of the Texas Code of Criminal Procedure. // The failure to request a postponement or seek a continuance waives the right to complain on appeal on the basis of surprise. // We overrule point of error three.

In point four, Richmond contends that the court erred in denying his motion to quash the enhancement paragraphs in the indictment. The indictment contained three enhancement paragraphs. The court granted Richmond's motion to quash the second enhancement paragraph but denied his motion to quash the first and third enhancement paragraphs in the indictment.

The first enhancement paragraph alleges that, in cause number 11,146 on the docket of the 220th District Court in Bosque County, Richmond was convicted of "[r]obbery as charged in the indictment . . . ." (Emphasis added). Because the indictment in cause number 11,146 in fact charged Richmond with aggravated robbery, he argues that a fatal variance exists between the allegations of the first enhancement paragraph and the proof. However, the elements of a lesser included offense are considered to have been alleged within the elements of an indictment alleging the greater offense. // As a result, we find that there is no fatal variance between the allegations of the first enhancement paragraph and the proof. //

The third enhancement paragraph alleges that, in cause number 13,586A on the docket of the 16th District Court in Denton County, Richmond was convicted of "[b]urglary as charged in the indictment . . . ." Richmond argues that the indictment in the underlying cause was void because it failed to allege a culpable mental state. As a result, he contends that the prior conviction for burglary is unavailable for enhancement purposes. // However, the indictment was not a part of the penitentiary packet admitted into evidence as proof of the prior conviction for burglary. The penitentiary packet contains only a certificate from the record clerk, a photograph, the judgment, a copy of the sentence, the commitment order, fingerprint cards, and a disciplinary report from the Department of Criminal Justice. The evidence in the penitentiary packet reflects that, in 1974, Richmond pled guilty to burglary in the 16th District Court in Denton County and was sentenced to five years in prison. The record on appeal does not contain a copy of an indictment that purports to be the charging instrument to which Richmond pled guilty in cause number 13,586A. Because Richmond has failed to see that a sufficient record was presented to show error requiring reversal, we overrule point of error four. //

We affirm the judgment.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed June 17, 1992

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