REGINALD JONES, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED and Opinion Filed March 26, 1998
 
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-97-00288-CR
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REGINALD JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
..............................................................
On Appeal from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause No. 219-80886-96
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O P I N I O N
Before Justices Wright, Moseley, and Roach
Opinion By Justice Wright
        Reginald Jones appeals his conviction for burglary of a habitation. After appellant pleaded not guilty, the jury found him guilty and assessed punishment, enhanced by a prior conviction, at sixty years' confinement and a $2000 fine. In two points of error, appellant contends the evidence is legally and factually insufficient to support his conviction. FN:1 For the reasons set forth below, we affirm the trial court's judgment.
BACKGROUND
        On the afternoon of August 19, 1996, Douglas Chaney, an off-duty Dallas police officer, was cooking a brisket in his backyard when he heard what sounded like glass breaking. A few minutes later, Chaney noticed a maroon car that he did not recognize being driven slowly down the alley. Fifteen minutes passed, and Chaney again saw the maroon car coming slowly down the alley. At that point, the car stopped and backed into a driveway down the alley. A man, later identified as appellant, got out of the car and walked into the backyard. When he did, Chaney made eye contact with him, and appellant promptly got back in the car and drove away.
        Because Chaney found the situation suspicious, he called his wife at the Plano Police Department to report what he had seen. Chaney's wife contacted dispatch and asked them to send some officers out to investigate. Moments later, Chaney saw the maroon car coming back down the alley again and backing into the same driveway. Chaney again made eye contact with appellant and saw him get out the car and walk into the backyard. After appellant returned to the car, police arrived and arrested appellant and another man that Chaney had not previously seen.         
        At trial, Johnny Dimond testified he was arrested with appellant on August 19, 1996, and he and appellant had burglarized the house in Plano together. Dimond testified he entered the house by breaking a window while appellant waited in the car. According to Dimond, he was initially looking for a computer. FN:2 When he did not find one, he returned to the car and told appellant there was no computer in the house. At that point, according to Dimond, appellant told him to go back inside and "get some sort of electronics, VCR, stereo, [or] something." Dimond did, and when he returned to the car, appellant assisted him by loading the items into the car. Just as the two were starting to leave, Plano police arrived and blocked their exit. The two were then placed under arrest.
        At trial, appellant testified in his own behalf, denying much of Dimond's testimony. According to appellant, he did not participate in the burglary and, in fact, knew nothing about Dimond's plans to burglarize the house. Appellant claimed Dimond was giving him a ride to a job interview, and Dimond told appellant he was stopping in Plano to borrow money from a former boss. When the two arrived at the house, Dimond told appellant, who is black, to drive around because Dimond's boss "might be prejudiced if he [saw appellant] around." After appellant drove around the block, he pulled up in front of the house. At that point, according to appellant, Dimond came out and told him to drive to the back of the house so he could "get some things" from the man who owned the house. When appellant drove around back, Dimond loaded items into the trunk of the car. Appellant denied helping Dimond to load the car. Moments later, the two were stopped by police and arrested.
 
SUFFICIENCY OF THE EVIDENCE
        In his first and second points of error, appellant contends the evidence is legally and factually insufficient to support his conviction. Under these points, appellant contends we must reverse his conviction because the State presented no evidence or, alternatively, insufficient evidence to prove appellant (1) intended to commit theft, or (2) acted as a party to the burglary. We disagree.
Legal Sufficiency
        When reviewing a challenge to the legal sufficiency of the evidence, we view 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 offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Chambers v. State, 866 S.W.2d 9, 15 (Tex. Crim. App. 1993), cert. denied, 511 U.S. 1100 (1994). This standard leaves to the jury the responsibility to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic to ultimate facts. See Dumas v. State, 812 S.W.2d 611, 615 (Tex. App.--Dallas 1991, pet. ref'd). The jury is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 865 (1985); Dumas, 812 S.W.2d at 615. Thus, the jury is free to accept or reject any or all of the evidence presented by either side. See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).
        A person commits the offense of burglary of a habitation if, with the intent to commit a felony or theft, he enters a habitation without the effective consent of the owner. See Tex. Penal Code Ann. § 30.02(a)(1) (Vernon 1994). Intent may be inferred from an accused's acts, words, and conduct. Dues v. State, 634 S.W.2d 304, 305 (Tex. Crim. App. [Panel Op.] 1982). In addition, in Texas, a person may be held criminally responsible for an offense committed by the conduct of another if, acting with the intent to promote or assist commission of the offense, the person solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. See Tex. Penal Code Ann. § 7.02(a)(2) (Vernon 1994).
        To convict a defendant under the law of parties, the State must show that, at the time of the offense, the parties were acting together, each contributing to their common purpose. Michel v. State, 834 S.W.2d 64, 67 (Tex. App.--Dallas 1992, no pet.). To determine whether a defendant acted as a party, the court may examine events occurring before, during, and after commission of the offense. See Burdine v. State, 719 S.W.2d 309, 315 (Tex. Crim. App. 1986), cert. denied, 480 U.S. 940 (1987). In addition, circumstantial evidence may be used to prove one's participation as a party to an offense. Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985), cert. denied, 476 U.S. 1101 (1986).
        Here, the State presented ample testimony showing appellant intended to commit theft and acted as a party to the offense charged. At trial, Dimond testified he and appellant went to the house in Plano to steal a computer. He also testified that when he was unable to locate a computer in the house, appellant told him to go back inside and "get some sort of electronics." Then, according to Dimond, appellant began loading items taken from the house into the trunk of the car.         
        In addition to Dimond's testimony, the State presented other testimony tending to connect appellant to the charged offense. For example, Douglas Chaney testified he saw appellant drive slowly down the alley a number of times and leave promptly when the two men made eye contact. Chaney thought appellant's conduct suspicious. Chaney also saw appellant get out of the car and walk into the neighbor's backyard. According to Sergeant Terry Groves, one of the officers at the scene, a person could not have entered that backyard without noticing that a window in the kitchen had been broken out. The clear implication from Groves's testimony was that (1) appellant had to have known, at least once he entered the backyard, that Dimond was burglarizing the house; and (2) appellant's actions in helping to load items into the car was done in an effort to assist Dimond in committing the burglary.
        We conclude, based on this testimony, that any rational jury could have found beyond a reasonable doubt that appellant (1) intended to commit theft; and (2) acted with the intent to aid, assist, or encourage Dimond to commit the offense. Because we conclude the State presented some evidence showing appellant acted as a party to the offense, we conclude the evidence is legally sufficient to support appellant's conviction.
Factual Sufficiency
        In conducting a factual sufficiency review, we examine the jury's weighing of the evidence. See Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). We view all the evidence without the prism of "in the light most favorable to the prosecution." See id. at 134. Nevertheless, we must appropriately defer to the jury's findings so as to avoid substituting our judgment for that of the jury. See id. at 133. The purpose of our review is only to prevent a manifestly unjust result, and we are not free to set aside the jury's determination merely because we feel a different result is more reasonable. See id. at 135. We reverse a case for factual insufficiency only if the jury's determination "is against the great weight of the evidence presented at trial so as to be clearly wrong and unjust." See id. (emphasis in original).
        We have reviewed the record in this case and, after doing so, we conclude the jury's determination regarding appellant's intent to commit theft and his status as a party was not so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Although appellant testified at trial that he (1) was merely present at the scene, (2) did not intend to commit burglary, and (3) was not aware of Dimond's plans to burglarize the house, the jury was the factfinder in this case and, as such, was entitled to disbelieve appellant's testimony. We may not substitute our judgment for that of the jury. See id. at 133. Because the jury's finding was not against the great weight of the evidence presented at trial, we conclude the evidence is factually sufficient to support appellant's conviction.
        For the reasons stated, we overrule appellant's first and second points of error. We affirm the trial court's judgment.
 
 
                                                          
                                                          CAROLYN WRIGHT
                                                          JUSTICE
 
 
 
 
 
 
Do Not Publish
Tex. R. App. P. 47
970288F.U05
 
 
 
 
 
 
 
FN:1 Although it is not entirely clear from appellant's brief whether he is challenging the legal and/or factual sufficiency of the evidence, we note that in his conclusion he asks that we reverse the trial court's judgment and enter an acquittal or, alternatively, remand for a new trial. In light of this language, we will treat appellant's points of error as raising both legal and factual sufficiency challenges.
FN:2 Dimond testified the two picked the house because Dimond knew the couple that lived there. According to his testimony, Dimond had previously done some carpentry and computer work for the couple, and he thought he would find a computer in the house.