David Ellison v. The State of Texas--Appeal from 241st District Court of Smith County

NO

NO. 12-05-00231-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

DAVID ELLISON, APPEAL FROM THE 241ST

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

 

MEMORANDUM OPINION

 

David Ellison appeals his conviction for engaging in organized criminal activity. In three issues, Appellant contends that the evidence was insufficient to corroborate the testimony of accomplices and that the evidence was legally and factually insufficient to sustain his conviction. We affirm.

Background

In late 2003 and early 2004, Steven Pugh and William Bradshaw stole three camper trailers, several regular trailers, a work truck loaded with welding gear, a tiller, and at least one riding lawn mower. The authorities conducted an investigation, and Appellant, Pugh, and Bradshaw were indicted for engaging in organized criminal activity. Specially, the indictment alleged that Appellant unlawfully appropriate[d] a tiller, a work truck and contents, and a lawnmower and that he acted with the specific intent to establish, maintain or participate in a combination or in the profits of a combination who collaborated in carrying on said criminal activity.

 

Appellant pleaded not guilty. At trial, the property owners testified that their respective property had been stolen. Innocent purchasers testified that they bought the lawnmower, equipment from the truck, and the tiller from either Pugh or Bradshaw, or in one case from Pugh s girlfriend. Appellant was not present at any of these transactions although one of the transactions took place on his property. There was also testimony that Appellant put the purchaser of the tiller in contact with Bradshaw, who negotiated and completed the transaction.

Pugh and Bradshaw testified that they worked in conjunction with Appellant. The arrangement was that Pugh and Bradshaw would steal various items and Appellant would sell them or help to sell them. Both men testified that Appellant had limited involvement in the actual theft of the truck, lawn mower, or tiller; but Pugh testified that he shared some of the profits from the sale of the items from the truck and the lawn mower with Appellant. Pugh also testified that Appellant wanted to keep the lawn mower for himself and that Appellant told them to get the truck off his property in a hurry. The truck was abandoned and burned on Interstate Highway 20. The jury found Appellant guilty and assessed punishment at twenty years of imprisonment and a fine of $10,000.00. This appeal followed.

Accomplice Testimony

In his first issue, Appellant argues that the evidence does not sufficiently corroborate the testimony provided by Steven Pugh or William Bradshaw.

Applicable Law

A conviction may not be sustained on the testimony of an accomplice unless there is other evidence tending to connect a defendant to the offense committed. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005); Simpson v. State, 181 S.W.3d 743, 753 (Tex. App. Tyler 2005, pet. ref d). The corroborating evidence need not directly connect the defendant to the crime or be sufficient by itself to establish guilt, but it must do more than merely show the commission of the offense. Tex. Code Crim. Proc. Ann. art. 38.14; Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002). The requirement of Article 38.14 is fulfilled if the combined weight of the nonaccomplice evidence tends to connect the defendant to the offense. Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999). The corroborating evidence may consist of circumstantial evidence, Gosch v. State, 829 S.W.2d 775, 777 (Tex. Crim. App. 1991), and even apparently insignificant incriminating circumstances may sometimes afford satisfactory evidence of corroboration. Trevino v. State, 991 S.W.2d 849, 852 (Tex. Crim. App. 1999).

To evaluate whether there is sufficient corroborating evidence, we eliminate the accomplice testimony from our consideration and examine the record to ascertain whether the remaining evidence tends to connect the defendant with the offense. McDuff v. State, 939 S.W.2d 607, 612 (Tex. Crim. App. 1997). The accomplice witness rule is a statutorily imposed sufficiency review and is not derived from federal or state constitutional principles that are the basis of the legal and factual sufficiency standards. Vasquez, 67 S.W.3d at 236.

The offense of engaging in organized criminal activity is defined by section 71.02 of the Texas Penal Code. It provides, in relevant part, that a person commits an offense if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination, he commits or conspires to commit theft. Tex. Pen. Code Ann. 71.02(a)(1) (Vernon 2005). A combination is three or more persons who collaborate in carrying on criminal activities. Id. 71.01(a).

Analysis

Pugh and Bradshaw were accomplices as a matter of law because they were indicted for the same offense as was Appellant. See Burns v. State, 703 S.W.2d 649, 651 (Tex. Crim. App. 1985). The evidence, other than the testimony of the accomplices, that tended to connect Appellant to the offense is as follows:

1) Richard Wixsome1 testified that he told the purchaser of the tiller to call Appellant about the tiller. The purchaser testified that he called David about the tiller. David told him to contact Bradshaw.

2) Larry Tidwell testified that he bought some of the contents of the work truck at a barn on Appellant s property although he did not deal with or see Appellant during the transaction.

The State has offered several other pieces of evidence it claims connect Appellant to the offense. Specifically, the State points to the testimony of the investigating officer. A representative sample of the detective s testimony on this issue is as follows:

Question: Were you able to determine whether [Appellant] aided, encouraged, solicited, or helped Stephen Pugh and Bill Bradshaw, William Bradshaw, in the commission of these thefts?

Answer: Yes.

The detective then testified that he had determined that Appellant aided, encouraged, solicited or helped Pugh or Bradshaw in the commission of the thefts. The detective s conclusion, which was essentially that Appellant was guilty, appears to have been derived from information he received from the accomplices. Certainly he was never asked if his determination came from any other source, and he testified that Appellant denied participating in any wrongdoing. Therefore, the detective s testimony is not nonaccomplice evidence and may not be considered for the purpose of determining if there is other nonaccomplice testimony that links Appellant to the crime. See McDuff, 939 S.W.2d at 612; Beathard v. State, 767 S.W.2d 423, 429 (Tex. Crim. App. 1989); Brown v. State, 320 S.W.2d 845, 847 (Tex. Crim. App. 1959). The detective did testify about a transaction where the buyer of a trailer was able to identify Appellant as the seller, but there is no indication that this transaction involved a stolen trailer or that it was part of an agreement between Appellant and Bradshaw or Pugh.

The State also suggested that the testimony of the purchaser of the lawn mower provides evidence linking Appellant to the crime. The purchaser of the lawnmower, however, testified that he had no contact with Appellant, did not go to his house to make the purchase, and that Pugh and his girlfriend brought it to his house. This is not evidence that links Appellant to the offense.

In sum, the nonaccomplice testimony that tends to link Appellant to these offenses is that he put the purchaser of the tiller in contact with the seller and that his property was used to store the stolen work truck. Taken separately, these pieces of evidence would be inadequate to link Appellant to the combination. The court of criminal appeals has held that merely providing assistance with a transaction is insufficient to link a person to the offense absent corroborative evidence to show the person s knowledge that the item was stolen. See Deas v. State, 531 S.W.2d 810, 813 (Tex. Crim. App. 1976) ( There is a complete absence of any corroboration of the fact that he had knowledge that the cattle which he attempted to sell were stolen. ); but see Tex. Pen. Code Ann. 31.03(c)(2) (Vernon 2005) (With respect to theft, the actor s knowledge or intent may be established by the uncorroborated testimony of the accomplice.). Further, the court of criminal appeals held in Cooper v. State, 537 S.W.2d 940, 945 (Tex. Crim. App. 1976) that the mere presence of a stolen car on a person s property was insufficient to corroborate accomplice testimony about a theft.

This case, however, features both kinds of corroborative evidence. There is corroborative evidence that places the stolen truck on Appellant s property and corroborative evidence that links him to the tiller transaction.

Corroboration must relate to a material matter and must tend to connect the defendant with the commission of the offense. Holladayv. State, 709 S.W.2d 194, 200 (Tex. Crim. App. 1986). A conviction cannot stand if the corroborative evidence does no more than point the finger of suspicion towards an accused. Castaneda v. State, 682 S.W.2d 535, 538 (Tex. Crim. App. 1984). Taken together, the corroborative evidence in this case does more than simply point a finger at Appellant. His property was used to store a stolen truck, and he arranged the sale of a stolen tiller. This is sufficient evidence to link him to the charged offense. We overrule Appellant s first issue.

Sufficiency of the Evidence

In his second and third issues, Appellant argues that the evidence was legally and factually insufficient to show that the offense was more than a single episode or to show that the value of the property stolen exceeded $20,000.00 as alleged in the indictment.

Standard of Review Legal Sufficiency

The Fourteenth Amendment due process guarantee requires that there be legally sufficient evidence to sustain a criminal conviction. Jackson v. Virginia, 443 U.S. 307, 315 16, 99 S. Ct. 2781, 2786 87, 61 L. Ed. 2d 560 (1979). Evidence is legally sufficient if any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; 99 S. Ct. at 2789; Russeau v. State, 171 S.W.3d 871, 877 (Tex. Crim. App. 2005). For legal sufficiency review, the evidence is examined in the light most favorable to the jury s verdict. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Russeau, 171 S.W.3d at 877.

The legal sufficiency of the evidence is measured against the offense as defined by a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State s burden of proof or unnecessarily restrict the State s theories of liability, and adequately describes the particular offense for which the defendant is tried. Id.

As authorized by the indictment, the State was required to prove that Appellant committed a theft with the intent to establish, maintain, or participate in a combination or in the profits of a combination. See Tex. Pen. Code Ann. 71.02(a)(1).

Standard of Review Factual Sufficiency

In reviewing factual sufficiency of the evidence, we must determine whether a neutral review of the evidence, both for and against the finding, demonstrates that a rational jury could find guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also factually insufficient when contrary evidence is so strong that the beyond a reasonable doubt standard could not have been met. Id. at 484 85. A verdict will be set aside only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust. Sims v. State, 99 S.W.3d 600, 601 (Tex. Crim. App. 2003); Ortiz v. State, 93 S.W.3d 79, 87 (Tex. Crim. App. 2002). A clearly wrong and manifestly unjust verdict occurs where the jury s finding shocks the conscience or clearly demonstrates bias. Zuniga, 144 S.W.3d at 481.

As in legal sufficiency review, the fact finder is the sole judge of the weight and credibility of a witness s testimony. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). The jury may choose to believe all, some, or none of a witness s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).

Analysis Continuing Criminal Enterprise

To support a conviction for organized criminal activity, there must be proof of more than just a single criminal act. Nguyen v. State, 1 S.W.3d 694, 697 (Tex. Crim. App. 1999). In Nguyen, the court of criminal appeals held that the State must show that the members of the combination intended to work together in a continuing course of criminal activities. Id.

Appellant argues that the activities alleged in this case took place on a single day and, therefore, were not evidence of an ongoing criminal enterprise. It is true that the grand jury alleged that the thefts occurred on a single day, but the allegation was that the thefts occurred on or about January 23, 2004 and the record demonstrates that the thefts did not all take place on that day. The work truck was discovered to have been stolen on the morning of January 23, 2004. It was not where it had been parked the night before. The tiller was reported stolen on February 17, 2004, and the lawn mower was reported stolen on December 31, 2003. Even if the tiller was stolen on January 23, and the loss was not reported until the next month, there is still evidence of more than one evening of criminal activity. Furthermore, the accomplices testified that the three thefts were part of a spree that spanned several months during which they were out stealing or attempting to steal items as regularly as every night.

This evidence is sufficient for the trier of fact to have concluded, under either standard, that this was an ongoing criminal enterprise and not just a flurry of criminal activity centered around one evening or one transaction. We overrule Appellant s second issue.

Analysis Value of Stolen Items

Appellant argues that there was insufficient evidence to show that the value of the stolen property was more than $20,000.00. This is important because the level of offense for organized criminal activity is determined by the level of offense of the component offenses. See Tex. Pen. Code Ann. 71.02(b). In this case, the most serious alleged component offense was theft of more than $20,000.00. Theft of more than $20,000.00 (and less that $100,000.00) is a felony of the third degree. Tex. Pen. Code Ann. 31.03(e)(5) (Vernon 2005). Therefore, this offense, as alleged, is a felony of the second degree. See id. 71.02(b).

There is ample evidence that the stolen truck and its contents were worth more than $20,000.00. The owner testified that the purchase price of the truck was $5,500.00. He further testified that the truck contained tools purchased for $23,000.00, an air compressor purchased for $2,000.00, and a welder purchased for $2,300.00 with $800.00 worth of leads, wires, and connectors. The victim claimed a value of $38,000.00 for the truck and contents, and an itemized list of the stolen items was introduced. On cross examination, the victim testified that although the itemized list totaled only about $32,000.00, the higher number was correct because the itemized list did not include various hoses and other parts.2

Even applying a discount for depreciation, a rational jury could have reasonably concluded that the value of the stolen truck and contents was more than $20,000.00. In fact, the victim testified that the tools were particularly resistant to depreciation because they were specialized tools used in the mining trade and held their value unless damaged.

Under a neutral review of the evidence, both for and against the finding, we likewise hold that a rational jury could have found beyond a reasonable doubt that the value of the stolen truck and its contents was more than $20,000.00. We overrule Appellant s third issue.

Disposition

We affirm the judgment of the trial court.

JAMES T. WORTHEN Chief Justice

Opinion delivered July 12, 2006.

Panel consisted of Worthen, C.J. and Griffith, J.

(DO NOT PUBLISH)

 

1 Appellant states that Wixsome is an accomplice because he knew that the tiller was stolen when he told the eventual buyer about it. This conclusion is not supported by the record.

2 The owner also testified that the truck was worth $10,000.00. He thought the truck was worth more than he paid for it because he had purchased it at an auction and because he had added a work bed to it. A disinterested expert witness testified that the truck was worth between $4,700.00 and $4,800.00 based on the year of the truck and the odometer reading.