Larry Donnell Scott v. The State of Texas--Appeal from 54th District Court of McLennan County

NO. 10-89-099-CR

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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LARRY DONNELL SCOTT,

Appellant

v.

THE STATE OF TEXAS,

Appellee

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From 54th Judicial District Court

McLennan County, Texas

Trial Court # 89-892-CR

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O P I N I O N

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Appellant was indicted for burglary of a habitation, enhanced by two prior felony convictions. See Tex. Penal Code Ann. 30.02(a) (Vernon 1989). A jury found him guilty and assessed his punishment at life in prison. Appellant complains that the evidence was insufficient to support his conviction either as the principal actor or as a party to the offense. The judgment will be reversed and an acquittal ordered.

David Hilton went to bed at approximately midnight on August 24, 1988. Before retiring, he checked his home to see that all the doors and windows were locked. Hilton's fiancée, who was staying with him, went to bed at approximately 1:00 A.M. Neither she nor Hilton heard anything unusual that night, perhaps because they slept next to a loud air conditioning unit located in a window. Hilton's neighbor heard glass breaking about 2:00 A.M. When Hilton awoke the next morning, he discovered his back door unlocked, a window in the back bedroom broken from the outside, and a microwave and two televisions missing.

At approximately 2:45 A.M., Sergeant Yates, a security officer, observed a car parked on the side of the road in Hilton's neighborhood. Believing that the car might be having mechanical problems, Yates approached the vehicle and found Appellant, its only occupant, sitting in the front passenger's seat. Appellant identified himself and told Yates that the car was out of gas. Yates started the car's engine and let it run for several minutes. While doing so, he noticed that two keys were on the key ring in the car's ignition switch. Suspecting that Appellant was involved in criminal activity, Yates told him that he was going to call the police, to which Appellant responded, "[G]o ahead. . . . I have nothing to hide. . . . I'm fresh out of the joint and I wouldn't be out here doing burglaries."

Officer Pessink, who responded to Yates' call, also started the car, noticed that its gas gauge indicated a quarter tank of gas, and drove it forward to verify that the vehicle was operable. Pessink could see televisions and other items in the car's trunk through a space resulting from a "bowed up" trunk lid. Meanwhile, officers had found Aaron Young, the car's owner, hiding in a nearby creek and carrying a container of gasoline. Young, who gave the officers permission to search the vehicle, told them that the trunk key was on the key ring in the ignition. Officers found only one key, the ignition key, on the key ring when they retrieved it from the car. Young obtained another key to the trunk from a nearby house and the officers searched the vehicle.

Hilton's microwave and two televisions were in the trunk. Appellant and Young both denied owning the property or knowing how it got into the trunk. Appellant's fingerprint, however, was found on the microwave.

A person is guilty of burglary of a habitation if he intentionally or knowingly enters the habitation without the effective consent of the owner and commits or attempts to commit theft. Id.; Day v. State, 532 S.W.2d 302, 305 (Tex. Crim. App. 1975). If a defendant has possession of recently stolen property and, when first confronted with its possession, fails to reasonably explain how he honestly acquired the property, then the fact-finder may draw an inference that he is guilty of the burglary in which it was stolen. Rodriguez v. State, 549 S.W.2d 747, 749 (Tex. Crim. App. 1977). This inference does not arise, however, unless the possession is personal, recent, unexplained, and involves a distinct and conscious assertion by the defendant of a right to the property. Sutherlin v. State, 682 S.W.2d 546, 549 (Tex. Crim. App. 1984). Once the inference arises, it is merely a circumstance of guilt and is not conclusive. Hardesty v. State, 656 S.W.2d 73, 77 (Tex. Crim. App. 1983). Thus, even if the inference arises, the sufficiency of the evidence still must be examined under the applicable standard. Id.

We must first determine whether the evidence was sufficient to raise an inference that Appellant was guilty of the burglary. See id. Did the evidence show that he had personal, unexplained possession of recently stolen property to which he consciously asserted a right? See Sutherlin, 682 S.W.2d at 549. Just because a person is a passenger in a vehicle containing stolen property does not raise an inference that he is guilty of the burglary in which it was taken or of its theft. Jackson v. State, 645 S.W.2d 303, 306 (Tex. Crim. App. 1983). Thus, evidence that Appellant was sitting in the passenger seat of a car containing stolen property in its trunk did not raise an inference of his guilt. See id.

Furthermore, evidence that his fingerprint was found on the microwave did not raise an inference that he was guilty of the burglary because the evidence did not show that the print was necessarily made at the time of the burglary. See Bowen v. State, 460 S.W.2d 421, 423 (Tex. Crim. App. 1970); compare Nieto v. State, 767 S.W.2d 905, 908-09 (Tex. App.--Corpus Christi 1989, no pet.) (holding that a fingerprint on property found on porch of burglarized house was sufficient to sustain the defendant's conviction because it was necessarily made either during the burglary or during the brief period while the property was on the porch).

The burglary apparently occurred at approximately 2:00 A.M. Forty-five minutes later Yates found Appellant sitting in a car a few blocks from the scene with the stolen property in its trunk. As Appellant asserts in his brief, the evidence did not exclude the reasonable hypotheses that, without knowing of the burglary, he had helped Young move the property or had touched it while looking at it.

The State offered no evidence that Appellant intentionally or knowingly entered Hilton's residence and committed theft. See Tex. Penal Code Ann. 30.02(a) (Vernon 1989). Consequently, the only other way he could be convicted as a primary actor was through the unexplained possession of recently stolen property. See Rodriguez, 549 S.W.2d at 749. The evidence was insufficient, however, to prove that he had personal possession of the recently stolen property. See Jackson, 645 S.W.2d at 306. Moreover, the State failed to prove that Appellant ever consciously asserted a right to the stolen property. Id. (holding that the defendant, a passenger in a van, did not exercise personal possession or assert a distinct and conscious right to the stolen property found in the van even though the defendant shot at an officer). The evidence was insufficient to raise an inference that he was guilty of the burglary as a primary actor through the unexplained possession of recently stolen property to which he consciously asserted a right.

Nevertheless, a person can be guilty as a party if, acting with intent to promote or assist the commission of an offense, he solicits, encourages, directs, aids or attempts to aid another person to commit the offense. Tex. Penal Code Ann. 7.02(a)(2) (Vernon 1974). To determine whether a person is guilty as a party, a court may look to events before, during and after the commission of the offense. Beier v. State, 687 S.W.2d 2, 4 (Tex. Crim. App. 1985). Acts committed after an offense is completed do not make a person guilty as a party unless the evidence shows some culpable act on his part before or during the offense. Morrison v. State, 608 S.W.2d 233, 235 (Tex. Crim. App. [Panel Op.] 1980).

The State failed to prove that Appellant solicited, encouraged, directed, aided or attempted to aid another to commit the burglary or that he committed some culpable act either before or during the burglary. Thus, the evidence was insufficient to convict him as a party.

Evidence will support a conviction when, viewing it in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1989). Point one is sustained because the jury could not have found the elements of the offense of burglary of a habitation from the evidence beyond a reasonable doubt.

The remaining points are not reached. The judgment is reversed and an acquittal ordered because of the insufficiency of the evidence. See Tex. R. App. P. 81(c).

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Hall (Retired) and

Justice James (Retired)

Reversed and an acquittal ordered

Opinion delivered February 14, 1991

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