William Steven Baxter, Jr. v. The State of Texas--Appeal from 198th Judicial District Court of Kimble County

MEMORANDUM OPINION

Nos. 04-04-00496-CR & 04-04-00527-CR

William Steven BAXTER, Jr.,

Appellant

v.

The STATE of Texas,

Appellee

From the 198th Judicial District Court, Kimble County, Texas

Trial Court Nos. 03-1285 & 03-1286

Honorable Emil Karl Prohl, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Rebecca Simmons, Justice

Delivered and Filed: September 28, 2005

AFFIRMED

William Steven Baxter, Jr. appeals his jury convictions for two offenses of burglary of a habitation for which the trial court sentenced him to two twenty year concurrent prison sentences. On appeal, Baxter argues that (1) he is entitled to a new trial because significant exhibits were lost or destroyed and (2) the evidence is insufficient to support the convictions. We affirm the judgment of the trial court.

Lost or Destroyed Evidence

Baxter specifically complains that stolen jewelry found in a motel room and Motel 6 records used to show Baxter was staying in that motel room are missing and that three rifles found in the motel room cannot be authenticated as the same rifles introduced into evidence because the exhibit stickers are no longer affixed to the rifles. Texas Rule of Appellate Procedure 34.6(f) provides that an appellant is entitled to a new trial if (1) a significant and necessary part of the reporter s record is lost or destroyed through no fault of appellant s own, (2) the appellant timely requested the record and (3) the parties cannot agree on a record. Tex. R. App. Proc. 34.6(f); see also Routier v. State, 112 S.W.3d 554, 570-71 (Tex. Crim. App. 2003). Importantly, Baxter must show that the missing portion of the reporter s record is necessary to his appeal. Routier, 112 S.W.3d at 571; Issac v. State, 989 S.W.2d 754, 757 (Tex. Crim. App. 1999).

Baxter asserts that because the case against him is circumstantial, the loss or destruction of the above described exhibits creates a situation in which he has been deprived of a complete record upon which to mount an effective appeal challenging his convictions. In this case, the issue of whether the missing exhibits are necessary to the appeal s resolution is dispositive. If the missing portion of the record is not necessary to the appeal s resolution, then the loss of that portion is harmless and a new trial is not necessary. Issac, 989 S.W.2d at 757; see also Gomez v. State, 962 S.W.2d 572, 576 (Tex. Crim. App. 1998) (stating that [a] reversal may be required only if the lost or destroyed exhibits cannot be reproduced and are not located elsewhere in the record but are necessary for the appellate court s review of the case on appeal ). Baxter argues that an examination of the physical evidence is essential in determining this appeal, but does not offer any further explanation of why examination of the physical evidence is essential.

The State introduced the stolen jewelry during the direct testimony of Kenya Abbott. Abbott testified that she recognized the jewelry as pieces belonging to her which had been taken from her home and further testified that photographs, copies of which are a part of the appellate record, accurately depicted the jewelry. Abbott also identified three rifles found in a Motel 6 room as belonging to her and her son, and pointed out the three rifles in a photograph, a copy of which is also a part of the appellate record. The State later presented the testimony of Investigator James Ledford. Ledford testified that Baxter was wearing one of the pieces of jewelry identified by Abbott at the time of his arrest and that other pieces of jewelry were found in the vehicle in which Baxter was an occupant. The exhibits and photographs were admitted without objection.

The State presented the Motel 6 records (room registration cards) through the testimony of Bhailal Patel, the owner and manager of the Kerrville Motel 6. Copies of the Motel 6 records are not included in the appellate record. Patel testified that two people were staying in a room at the motel and that the vehicle listed on the registration cards was a 1994 Blazer with Texas license plate number VTP32W. Patel further testified that the name listed on the registration card was Brett Jones and that Baxter was not registered as an occupant of the room. Baxter did not dispute the contents of the Motel 6 records.

Scott Thrasher, who confessed to committing the burglaries, testified that Brett Jones was his alias and that Baxter was also staying in the motel room. Ledford testified, from photographs and his investigation report, that the vehicle from which the authorities recovered stolen property was a Chevrolet Blazer with Texas license plate number VTP32W. Baxter did not dispute the description of the vehicle, and testified that he stayed in the motel room a couple of times.

Although the physical exhibits are missing from the appellate record, photographs and sufficient descriptions of the jewelry and rifles are located elsewhere in the record. See Gomez, 962 S.W.2d at 576. While a copy of the Motel 6 registration card is not included in the record, the testimony concerning contents of the card were not controverted at trial. See Id. at 577 (indicating that when testimony concerning lost exhibits is uncontroverted at trial, the lost exhibits are not necessary to the resolution of an appeal). We conclude that the loss of the physical exhibits in no way impeded our review of the record and in no way hindered Baxter s ability to mount an effective appeal. Therefore, we find that the missing physical exhibits were neither significant nor necessary to the resolution of this appeal. Baxter s first issue is overruled.

Sufficiency of the Evidence

Baxter argues that the evidence presented by the State was entirely circumstantial and asserts that the State was not able to place him at the scene of either burglary. Baxter relies heavily on the testimony of Scott Thrasher, who testified that he committed the burglaries alone and that Baxter neither encouraged nor assisted him. Finally, Baxter argues that there was no unexplained possession of stolen property and that the record is devoid of any direct testimony reflecting he actively participated in the burglaries. Baxter asserts that for these reasons, the evidence adduced at trial is both legally and factually insufficient to support his convictions.

In reviewing a legal sufficiency challenge, we view the 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. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999). In conducting a factual sufficiency review, we view all the evidence in a neutral light and will set aside the verdict only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004)).

When conducting either sufficiency review, we recognize that the jury may draw reasonable inferences from the evidence before it. Jones v. State, 944 S.W.2d 642, 647-48 (Tex. Crim. App. 1996). It is the province of the jury to evaluate the credibility and demeanor of witnesses and determine the weight afforded contradicting testimony. Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997). The jury may also choose to accept or reject any or all testimony of any witness. Williams v. State, 692 S.W.2d 671, 676 (Tex. Crim. App. 1984). We do not substitute our own judgment for that of the jury. Jones, 944 S.W.2d at 648. Rather, we defer to the jury s findings, particularly those based on credibility determinations. Cain, 958 S.W.2d at 407-09.

A person commits the offense of burglary of a habitation if, without the effective consent of the owner, he enters a habitation and commits or attempt to commit theft. Tex. Pen. Code Ann. 30.02 (Vernon Supp. 2002). The jury was instructed that [a] person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs or attempts to aid the other person to commit the offense. The jury was also instructed that [m]ere presence alone will not constitute one a party to an offense.

Burglary can be proven solely through circumstantial evidence. See Gilbertson v. State, 563 S.W.2d 606, 608 (Tex. Crim. App. [Panel Op.] 1978). Mere possession of stolen property does not give rise to a presumption of guilt, but will support an inference of guilt for the offense in which the property was stolen. Hardesty v. State, 656 S.W.2d 73, 76 (Tex. Crim. App. 1983). To warrant an inference of guilt based on the possession of stolen property, the State must establish that the possession was personal, recent and unexplained. Grant v. State, 566 S.W.2d 954, 956 (Tex. Crim. App. [Panel Op.] 1978). Because Baxter has offered an explanation for his possession of the stolen property, the record must demonstrate his account is false or unreasonable. Adams v. State, 552 S.W.2d 812, 815 (Tex. Crim. App. 1977). Whether Baxter s explanation for possession of recently stolen property is true or reasonable is a question of fact to be resolved by the jury. Dixon v. State, 43 S.W.3d 548, 552 (Tex. App. Texarkana 2001, no pet.).

Investigator James Ledford testified that when Baxter was arrested a few days following the burglaries, Baxter was wearing a gold chain with a flag pendant and carrying a pocket knife, which were identified as stolen property. Ledford told the jury that Baxter initially stated the items had been purchased from the Salvation Army in San Antonio. Later, the jury heard Scott Thrasher testify that he loaned the pendant to Baxter.

Thrasher testified at length that he committed the burglaries alone and that Baxter neither encouraged nor assisted him in the commission of the burglaries. Thrasher reiterated several times that he and Baxter did not have an agreement regarding the burglaries. Baxter also testified that he had not taken part in the burglaries and neither encouraged nor assisted Thrasher in committing the burglaries. The jury heard testimony from Mark Bartell of the Kerr County Sheriff s Office, however, that in response to the question of whether he played any part in the burglaries, Baxter stated, I stood outside the car is all. Baxter explained that this response was actually to the question of whether he was in the vehicle, and that he was not stating he was standing outside the vehicle at a burglary. Bartell testified that Baxter told him that, The most you could get me for is driving. Bartell also testified that during his interview with Thrasher, Thrasher indicated that he went to the locations of the burglaries alone, but then also made statements that we went to the locations. Bartell admitted that Thrasher asked him to stop using we, I do all my crimes by myself. However, Bartell asserted that very soon after making that request, Thrasher made the statement, Wednesday. I think we hit two places.

Thrasher told the jury that before he committed the burglaries, he dropped Baxter off at the home of Baxter s sister, Martha Sue Cavender. Cavender, however, testified that she had no way of knowing whether Baxter was at her home during that time period because she worked during the day and had not provided Baxter with a key to her home. Thrasher testified that when he picked Baxter up following the burglaries, Baxter asked where he had gotten a television that was in the vehicle, and told him, Man, I don t want nothing to do with that bullshit. However, the jury heard testimony that Thrasher gave investigators differing accounts of what happened. Thrasher first told investigators that Baxter told him to get rid of the television and VCR because they were too old to pawn, and then he also told investigators that Baxter was not with him when he disposed of the items. Ultimately, Thrasher was unable to lead investigators to where he disposed of the items. Baxter, however, knew exactly where the items could be found.

The jury heard additional testimony that on the day of the burglaries, two men matching the description of Thrasher and Baxter pulled into the driveway of a home near those that had been burglarized and honked the horn of their SUV. The homeowner, Robert Schero, testified that when he went outside, the men said they were lost. Schero made a phone call for the men, to a number that was later identified as that of Baxter s sister, and gave them general directions to where Baxter s sister lived. Baxter, however, testified that he was familiar with the area and Thrasher testified that the day of the burglaries was not the first time he had been to the home of Baxter s sister.

Thrasher explained that he hid the rifles in the closet of the motel room so that Baxter could not see them, and that Baxter did not know there were stolen rifles in the motel room. Bartell testified, however, that Baxter stated that he had handled the rifles and had commented to Bartell, The most you can get me for is possession, not on a burglary charge, because all I ve done is handle them.

Thrasher testified that he used Baxter s license to pawn stolen items without Baxter s permission. Baxter told the jury that he had allowed Thrasher to use his license to go to bars or whatever, but that if he had known Thrasher was going to use the license to pawn stolen items, he would not have allowed Thrasher the use of the license. Roy Miller, the manager of the Golden Cup Pawn Shop, testified that while he could not recall the exact transaction or recognize Baxter as the person who pawned the stolen items, the pawn shop s procedure was to verify the identification of the person attempting to pawn the items against a form of positive identification. Miller testified that he compared photographs, identifying information and signatures. Miller stated that had the person attempting to pawn items or that person s signature appeared different from that on the identification, the pawn transaction would not have been completed.

The jury also heard testimony that at the time Baxter made his statements to police, he admitted that he was aware the items were stolen. At trial, Baxter explained that at the time of the statements he knew the items were stolen because the authorities had informed him of that fact, but that prior to being informed of that fact, he had not known the items were stolen. Additionally, during his direct testimony, Thrasher told the jury the reason for the discrepancies in his statements to police was that he was coming down off of twelve days of shooting dope.

A review of the evidence shows that Baxter was in possession of items of stolen property, occupying a motel room in which stolen property was found and directed Thrasher in regard to the manner in which to dispose of the stolen property. Additionally, Baxter s drivers license was used to pawn stolen items and Baxter was able to directly lead investigators to the location where the stolen items were disposed. Further, in his statements to investigators, Baxter admitted that he knew the items were stolen, had handled the rifles and that he had been present, standing outside with the car. Finally, Baxter and Thrasher both testified that Baxter had nothing to do with the burglaries and knew nothing about the stolen items. Both men asserted that reasonable explanations exist for the discrepancies between their testimony and statements given to police.

Viewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found beyond a reasonable doubt that Baxter acted with the intent to promote or assist the commission of the burglaries, and he solicited, encouraged, directed or attempted to aid Thrasher in the commission of the burglaries based on Baxter s personal, recent and unexplained possession of the stolen property. The jury was within its discretion as the trier of fact and the judge of the witnesses s credibility when it determined what weight to afford the testimony presented at trial. The jury could choose to believe or disbelieve all or any part of the testimony presented. We defer to the jury s evaluation of the credibility of witnesses, and its determination of the reasonableness of Baxter s explanation for his possession of stolen property in finding that the evidence is sufficient to sustain Baxter s conviction. Based on the evidence presented, and viewing it in the light most favorable to the judgment, we conclude that a rational trier of fact could have found the essential elements of burglary of a habitation. Further, after reviewing the evidence in a neutral light, we do not find the verdict clearly wrong or manifestly unjust. Nor do we find the evidence adduced at trial so strong that the standard of proof, beyond a reasonable doubt, could not have been met by the State. Baxter s second issue is overruled.

Conclusion

The trial court s judgment is affirmed.

Alma L. L pez, Chief Justice

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