Brian Westley Countryman v. The State of Texas--Appeal from 12th District Court of Walker County

Affirmed and Memorandum Opinion filed December 19, 2006

Affirmed and Memorandum Opinion filed December 19, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00899-CR

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BRIAN WESTLEY COUNTRYMAN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 12th District Court

Walker County, Texas

Trial Court Cause No. 22,454

M E M O R A N D U M O P I N I O N

Appellant, Brian Westley Countryman, was found guilty by a jury of burglary of a building. See Tex. Penal Code Ann. ' 30.02 (Vernon 2003). The jury assessed punishment at two years= confinement in a state jail facility. Appellant raises three points of error on appeal. In his first and second points of error, he claims the evidence is legally and factually insufficient to sustain a conviction. In his third point of error, appellant claims the evidence is insufficient to corroborate accomplice testimony offered against him at trial. We affirm.

Factual and Procedural Background

At approximately 3:45 a.m. on December 17, 2003, Retha Barker arrived at work at Lucky Food Store on Highway 190 in Walker County, Texas. As manager of Lucky Food Store, Barker was responsible for unlocking the building and opening the store for business each morning. Upon entering the store, Barker discovered display racks and merchandise had been disturbed, merchandise was missing, and the telephone was not working.

Sergeant Casey Chitwood of the Walker County Sheriff=s Department conducted an investigation and concluded two individuals entered the store at approximately 3:00 a.m. on December 17, after removing part of an exterior wall. Full containers of beer, packages of cigarettes, and rolls of coins were found on the ground outside of the building, near the point of entry. The telephone wires had been pulled out of the alarm system control box. Chitwood found fresh tire tracks in the grass behind the store. The location of the tire tracks indicated that someone had backed a vehicle up to the rear of the store. The tire tracks led away from the store and passed a nearby wooden fence. Chitwood observed a scrape on the fence. On the ground, in close proximity to the tire tracks and the scrape on the fence, he found a piece of plastic which was identified as a rear-view mirror cover from the driver=s side of a light blue 1992 to 1994 model Ford Crown Victoria. Chitwood advised the patrol division to be on the lookout for a vehicle matching that description with a missing mirror cover.

On December 18, 2003, Officer Daniel Barrett conducted a traffic stop after observing appellant run a stop sign. Appellant was driving a light blue Ford Crown Victoria with a missing cover on the driver=s side rear-view mirror. Raymond Yeager was a passenger in appellant=s vehicle. Barrett looked inside the vehicle and saw several packs of Marlboro cigarettes and one half of a roll of quarters. Appellant told Barrett that he was the owner of the vehicle and the only person who drove the vehicle or had keys to it. Appellant=s vehicle was impounded and searched.

On December 18, 2003, Raymond Yeager and Richard White confessed to the burglary of Lucky Food Store, and informed police that appellant was also involved in the burglary. Both Yeager and White were subsequently indicted and pleaded guilty to the charge of burglary of a building. On August 12, 2004, a Walker County grand jury indicted appellant for burglary of a building. Appellant pleaded not guilty.

At appellant=s trial, Barker testified Lucky Food Store was not open to the public at the time of the burglary. Barker testified she was the manager of the store and had authority to unlock and enter the building, disarm the security system, and open the store for business. Barker testified the merchandise missing from the store after the burglary included approximately fifty cartons of Marlboro cigarettes, cigarette lighters, approximately thirty packs of beer, several packages of over-the-counter Aenergy pills,@ small denomination bills ($1, $5, and $10), and rolls of quarters. Barker also testified she recognized appellant as a frequent customer of Lucky Food Store.

Sergeant Chitwood testified he found tire tracks and a plastic mirror cover behind Lucky Food Store. The mirror cover was from the driver=s side of a light blue 1992 to 1994 model Ford Crown Victoria, and was found in close proximity to fresh tire tracks and a scrape on a wooden fence. Chitwood testified he obtained and viewed the videotape from the surveillance system at the Lucky Food Store, recorded on the night of the burglary. The video showed two people burglarizing the store. However, due to the poor quality of the recording, the subjects could not be identified from the video.

Officer Barrett testified he stopped appellant=s vehicle on the day after the burglary, and Yeager was a passenger in the vehicle. Barrett described appellant=s vehicle as a light blue Ford Crown Victoria with a missing cover on the driver=s side rear-view mirror. Barrett testified he observed packages of Marlboro cigarettes and one half of a roll of quarters inside appellant=s vehicle. Finally, Barrett testified appellant told him that appellant owned the vehicle and was the only person who drove it.

Deputy Charles Perkins testified he searched appellant=s vehicle after it was impounded and found a bottle of Astacker pills,@ a silver and gray cigarette lighter, and four packages of Marlboro cigarettes, all of which matched the descriptions of items stolen from Lucky Food Store.

Yeager testified that he, White, and appellant burglarized Lucky Food Store on December 17, 2003. Yeager testified they drove appellant=s light blue Ford Crown Victoria to the store and disconnected the telephone wires from the back of the building. They gained entry by removing a piece of siding from the exterior of the building and creating a hole in an interior wall. Yeager testified he and appellant entered the store and took beer, cigarettes, cigars, cigarette lighters, energy pills, and the cash in the cash register. Yeager identified himself and appellant as the individuals depicted in the surveillance video. Finally, Yeager testified appellant=s vehicle sideswiped the wooden fence behind the store as they drove away.

Richard White testified that he, Yeager, and appellant robbed Lucky Food Store. White acted as lookout while Yeager and appellant went inside the building. White testified he was very intoxicated at the time of the burglary, and the majority of the stolen items consisted of cigarettes and beer. White testified they left the scene in appellant=s blue Ford Crown Victoria.

The jury found appellant guilty and assessed punishment at two years= confinement in a state jail facility. This appeal followed.

Discussion

I. Corroboration of Accomplice Witness Testimony

We begin our discussion by addressing appellant=s third issue, whether the accomplice witness testimony of Yeager and White is sufficiently corroborated to serve as a basis for appellant=s conviction.[1] An accomplice witness is a person who participated before, during, or after the commission of an offense and could be prosecuted for the same offense with which the defendant was charged. See Blake v. State, 971 S.W.2d 451, 454B55 (Tex. Crim. App. 1998). Because Yeager and White were convicted of the same offense as that with which appellant was charged, their status as accomplices is established as a matter of law. See DeBlanc v. State, 799 S.W.2d 701, 708 (Tex. Crim. App. 1990).

Article 38.14 of the Texas Code of Criminal Procedure prohibits convicting a defendant based solely on the testimony of an accomplice witness unless the testimony is Acorroborated by other evidence tending to connect the defendant with the offense committed.@ Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005); See Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991). If the corroborating evidence merely shows that the offense was committed, it is insufficient. Tex. Code Crim. Proc. Ann. art. 38.14. Determining whether the accomplice testimony is sufficiently corroborated requires us to eliminate the accomplice testimony from consideration and then examine the record to ascertain whether any inculpatory evidence exists that tends to connect the accused to the commission of the crime. Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001). Therefore, we apply the Atending to connect@ standard of review, rather than the traditional standards for legal and factual sufficiency, when reviewing evidence for compliance with Article 38.14. Id.; Cathey v. State, 992 S.W.2d 460, 462B63 (Tex. Crim. App. 1999). The corroborating evidence need not directly connect the defendant to the crime nor be sufficient on its own to establish guilt; it must only tend to connect the defendant to the offense. Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002).

Mere presence of the defendant at the scene of the offense is insufficient to corroborate accomplice witness testimony. Cox v. State, 830 S.W.2d 609, 611 (Tex. Crim. App. 1992). However, evidence of the defendant=s presence at the scene, combined with other suspicious circumstances, may be enough to connect the defendant to the offense. Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996). For example, evidence that the defendant was in the presence of the accomplice at or near the time or place of the crime is proper corroborating evidence. Hernandez v. State, 939 S.W.2d 173, 178 (Tex. Crim. App. 1997); McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997). Evidence that a defendant is in possession of stolen property also tends to connect the defendant to the commission of a burglary. Cao v. State, 183 S.W.3d 707, 711 (Tex. App.CHouston [1st Dist.] 2005, pet. ref=d). If the combined weight of the non-accomplice evidence tends to connect the defendant to the offense, the requirement of article 38.14 has been fulfilled. Cathey, 992 S.W.2d at 462.

Appellant argues that aside from the testimony of Yeager and White, Athere is absolutely no evidence that tends to connect appellant to the crime alleged to have occurred.@ We disagree. Eliminating the accomplice witness testimony from consideration, we find evidence placing appellant at the scene of the crime at or near the time of the offense, and additional evidence indicating suspicious circumstances.

The testimony of Officer Barrett and Sergeant Chitwood, combined with evidence of the plastic rear-view mirror cover found at the scene, places appellant at the Lucky Food Store at or near the time of the burglary. Chitwood testified he found a plastic mirror cover from the driver=s side of a light blue 1992 to 1994 model Ford Crown Victoria on the ground behind Lucky Food Store, near fresh tire tracks and a scrape on the wooden fence. The next day, appellant was stopped while driving a light blue Ford Crown Victoria with a missing mirror cover on the driver=s side. Appellant stated he was the owner and only driver of the vehicle. Photographs of the mirror cover and appellant=s vehicle were admitted into evidence.

Other suspicious circumstances tend to connect appellant to the burglary. Yeager, one of the accomplices, was with appellant in appellant=s vehicle on the day after the burglary. In addition to being in the company of one of the accomplices, appellant was in possession of property stolen from Lucky Food Store. Appellant=s vehicle contained a roll of quarters, stacker pills, packages of Marlboro cigarettes, and a silver and gray cigarette lighter, all of which matched the descriptions of items stolen from Lucky Food Store.

The record contains evidence appellant was present at the scene of the offense, in possession of stolen property, and in the company of an accomplice. We find the combined weight of the non-accomplice testimony tends to connect appellant to the crime. See Tex. Code Crim. Proc. Ann. art. 38.14; Cathey, 992 S.W.2d at 462. Therefore, the accomplice testimony of Raymond Yeager and Richard White is sufficiently corroborated, and appellant=s third point of error is overruled.

II. Legal and Factual Sufficiency

A. Standards of Review

In a legal sufficiency review, we view all the evidence in the light most favorable to the verdict and then determine whether a 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, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005). The jury, as the sole judge of the credibility of the witnesses, is free to believe or disbelieve all or part of a witness=s testimony. Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998). We do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure the jury reached a rational decision. 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).

A factual sufficiency review begins with the presumption that the evidence supporting the judgment is legally sufficient. Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). In a factual sufficiency review, we consider all the evidence in a neutral light. Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). The evidence may be factually insufficient in two ways. Prible v. State, 175 S.W.3d 724, 730B31 (Tex. Crim. App. 2005). First, when considered by itself, evidence supporting the verdict may be so weak the verdict is clearly wrong and manifestly unjust. Id. Second, where the evidence both supports and contradicts the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. In conducting a factual sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). Our analysis must consider the evidence appellant claims is most important in allegedly undermining the jury=s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

B. Analysis

A person commits burglary of a building if, without the effective consent of the owner, the person enters a building (or any portion of a building) not then open to the public, with intent to commit a felony or theft. Tex. Penal Code Ann. ' 30.02 (Vernon 2003). In his first and second points of error, appellant argues the evidence is legally and factually insufficient to show that appellant entered Lucky Food Store with intent to commit theft, and that appellant did not have the effective consent of the owner to enter Lucky Food Store.

Both Yeager and White testified they were with appellant when he committed the burglary. Yeager testified that he and appellant entered Lucky Food Store by Aknocking a hole through the inside wall and crawling in through that.@[2] Yeager testified that after he and appellant entered the store, appellant took the money from the cash register, then he and appellant stole various items including beer, cigarettes, cigars, lighters, and energy pills. White testified appellant and Yeager entered the store and stole beer and tobacco products. The State presented evidence placing appellant and appellant=s vehicle at the scene of the crime. The plastic rear-view mirror cover and fresh tire tracks found behind Lucky Food Store, combined with evidence that appellant was stopped the next day while driving a light blue Ford Crown Victoria with a missing driver=s side rear-view mirror cover, place appellant at the scene of the crime at or near the time of the offense. Officer Barrett testified appellant was in the company of Yeager, one of the accomplices, on the day after the burglary. The jury also heard testimony that appellant was in possession of property matching descriptions of items stolen from Lucky Food Store, including a roll of quarters, stacker pills, packages of Marlboro cigarettes, and a silver and gray cigarette lighter.

Barker testified she was the manager of Lucky Food Store at the time of the burglary. Barker=s responsibilities included unlocking the building, disarming the security system, and opening the store for business each morning. Barker testified she was in control of Lucky Food Store on the day of the burglary; the store was not open to the public at the time of the burglary; and no one had permission to enter the store prior to her arrival. Appellant argues Barker was not an Aowner@ of Lucky Food Store and, therefore, Barker=s testimony fails to satisfy the State=s burden to prove appellant did not have effective consent of the owner to enter the store. See Tex. Penal Code Ann. ' 30.02(a). Ownership of the burglarized premises may be proven in one of three ways: (1) title, (2) possession, or (3) greater right to possession than the defendant. Id. ' 1.07(a)(35)(A); Alexander v. State, 753 S.W.2d 390, 392 (Tex. Crim. App. 1988). APossession@ means actual care, custody, control, or management. Tex. Penal Code Ann. ' 1.07(a)(39). Appellant claims Barker did not have a greater right to possession of Lucky Food Store than appellant because Barker was the manager of the store only when the store was open. However, it is the employment relationship that determines whether an individual is an Aowner@ under section 1.07(a)(35)(A). Compton v. State, 607 S.W.2d 246, 250 (Tex. Crim. App. 1979) (op. on reh=g). Thus, under the Penal Code, any person who has a greater right to the actual care, custody, control, or management of the property than the defendant can be the Aowner.@ Alexander, 753 S.W.2d at 392. Barker=s undisputed testimony that she was the manager at the time of the burglary gives her a greater right to possession of Lucky Food Store than appellant, regardless of the fact that she was not present at the store at the time of the burglary. See Chowdhury v. State, 888 S.W.2d 186, 187 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d) (convenience store district sales manager was Aowner@ of store property); Baylor v. State, No. 05-02-01172-CR, 2003 WL 21920359, at *1B2 (Tex. App.CDallas Aug. 13, 2003, no pet.) (not designated for publication) (convenience store manager who arrived in the morning to discover store had been burglarized had greater right of possession than thief). Therefore, Barker was an Aowner@ of Lucky Food Store for the purpose of establishing appellant did not have effective consent of the owner to enter the store. See Tex. Penal Code Ann. '' 1.07(a)(35)(A), 30.02(a).

Viewing all the evidence, including the accomplice witness testimony, in the light most favorable to the verdict, a rational trier of fact could have found the essential elements of burglary of a building beyond a reasonable doubt. See Salinas, 163 S.W.3d at 737. We overrule appellant=s legal sufficiency point of error.

In this case, the same facts that make the evidence legally sufficient also make it factually sufficient. In his appellate brief, appellant argues the State=s evidence he entered Lucky Food Store is contradicted by evidence that only two people entered the store, and Yeager and White pleaded guilty to the burglary. When considering all the evidence in a neutral light, this contrary evidence is not so strong that the beyond-a-reasonable-doubt standard could not have been met, nor is the evidence supporting the verdict so weak it is clearly wrong and manifestly unjust. See Prible, 175 S.W.3d at 730B31. Accordingly, we overrule appellant=s factual sufficiency point of error.

Conclusion

Having considered and overruled each of appellant=s points of error, we affirm the judgment of the trial court.

/s/ John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed December 19, 2006.

Panel consists of Justices Anderson, Hudson, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] We address this issue first in order to determine whether the accomplice witness testimony may be used in the legal and factual sufficiency analysis of the evidence.

[2] The trial court included the instruction on the law of parties in the jury charge, thereby eliminating the State=s burden to prove appellant actually entered Lucky Food Store. See Tex. Penal Code Ann. '' 7.01(a), 7.02(a)(2) (Vernon 2003); Powell v. State, 194 S.W.3d 503, 506B07 (Tex. Crim. App. 2006).