Russell Eugene Johnson v. The State of Texas--Appeal from 413th District Court of Johnson County
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IN THE TENTH COURT OF APPEALS No. 10-10-00353-CR RUSSELL EUGENE JOHNSON, Appellant v. THE STATE OF TEXAS, Appellee From the 413th District Court Johnson County, Texas Trial Court No. F44355 MEMORANDUM OPINION Russell Eugene Johnson was convicted of one count of engaging in organized criminal activity and one count of theft. See TEX. PENAL CODE ANN. §§ 71.02 (a)(1); 31.03 (West 2011). He was sentenced to 20 years in prison for the first count and 10 years in prison for the second count. We affirm. FACTUAL BACKGROUND Because part of Johnson s sole issue relates to the sufficiency of the evidence to support an element of the offense of engaging in organized criminal activity, our factual recitation is longer than usual for a memorandum opinion. Ben Williams, who lives on Parkview in Burleson, Texas, was called by a neighbor from across the street about a couple of people walking down the street who looked out of place. Williams went outside and saw two men from behind who were wearing hoodies walking down the street looking back and forth across the street. When he went in to get his phone to call police and went back outside, the men were gone. Then, while Williams was on the phone, he saw a vehicle stop about two houses away and saw two individuals run out from the side of the house and get into the car. When the car turned right a quarter mile away, Williams saw the police pass his house. Shawn Martin, with the Burleson Police Department, received a report of two suspicious black males walking down the 400 block of Parkview trying to conceal a flashlight. When he turned onto Parkview, he noticed a small black car and a pickup turn onto Parkview from Berkshire. It looked like the vehicles were following each other. The black car did not have on its headlights. Martin stopped the black car and radioed another officer to stop the pickup. The driver of the car was identified as Paul McGown. McGown said he was looking for his girlfriend s house. McGown had an outstanding warrant for his arrest, so Martin arrested McGown. Martin saw a clipboard in the back passenger floorboard of McGown s car which showed a Chevy Blazer and listed the City of Burleson on it. Other ads of Chevy and GM vehicles were under the picture of the Blazer. Testimony was presented that those particular year models and makes of vehicles were easy to steal. There was also testimony that an experienced car thief could steal one of these vehicles in a minute to a minute and a half. In McGown s Johnson v. State Page 2 car was also a map with directions from McGown s house to an address off of Parkview. The car and the pickup appeared to be leaving the area in the reverse order of the directions on the map. A flashlight on the front passenger floor of the car was also located. McGown s cell phone was recovered from his car which showed a call from Benny Waters. Officer Cameron Pilgrim attempted to stop the pickup. When he first initiated the stop, the pickup pulled into the right turn lane of Southwest Wilshire. Pilgrim gave some verbal commands from his PA system but the occupants of the pickup would not comply. The passenger of the pickup attempted to get out at that time but was told to close the door. Once he had backup, Pilgrim approached the pickup which then sped off, turning left. Pilgrim and another officer gave chase into a neighborhood. The pickup then stopped and the driver took off running. The passenger got out of the pickup but he was told to get back in the vehicle and was taken into custody. The passenger was identified as Russell Johnson. During his testimony, when asked if Johnson was intoxicated, Pilgrim replied, Not that I can recall. The driver was located in the back yard of a residence and also taken into custody. He was identified as Benny Waters. When making his escape, Waters had left the driver s side door of the pickup open. Officers could see that the front driver s side vent window was broken and glass was on the driver s side floorboard. The steering column had been broken so the pickup could be accessed and driven. Johnson v. State Pieces of the steering column were on the Page 3 floorboard. A screw driver that was used to break the steering column was also located on the floorboard. It was later determined that the pickup was stolen. The pickup, a 1983 Chevy Silverado, had been in the possession of James Reed. Reed borrowed it from his grandmother. It had been his grandfather s pickup, and Reed s grandmother had spent $17,000 restoring it. The pickup had sentimental value to Reed and his grandmother. Reed had parked the pickup in his driveway at 5:15 in the evening. Neither the window nor the steering column was broken when he parked the pickup. He did not go out early in the morning to start the pickup and leave it running. Reed did not give Waters, Johnson, or McGown permission to drive the pickup. Detective David Feucht took video statements of Waters, Johnson, and McGown. Waters and Johnson s statements were introduced into evidence and played to the jury. During his investigation, Feucht discovered that the three suspects lived in the same area, and he believed that they were all working together. In his video statement, Johnson initially said that he rode from Dallas to Burleson with a man named Reggie so that Reggie could sell a Suburban to McGown. Johnson said he did not know Reggie but knew McGown pretty well. He said Reggie had a small, blue, four-door, foreign car. When they stopped to get gas at the QT in Burleson, Johnson went into the store, and Reggie took off. McGown was still in his car. Waters then arrived with a pickup, and Johnson caught a ride with him. The police then got in behind them and stopped them. Johnson said he had known Waters for about a year but had not seen him in a while. Johnson v. State Page 4 Johnson changed his story. He said that McGown, Waters, and Reggie picked him up at his house. Johnson and McGown rode down to Burleson and they followed Reggie and Waters. They traveled across I-20 to 1-35 to Burleson. Reggie had come along on the trip because he knew the town. McGown was going to Burleson to buy a Suburban, and Johnson was just going to check out its condition for McGown. McGown had a picture of it. Johnson then identified the picture of the Blazer found in McGown s car as the picture McGown had. Johnson pumped gas in Reggie s car, and Reggie went inside to pay. Waters stayed in Reggie s car, and McGown stayed in his car. Waters and Reggie then left to go get the Suburban and its owner to bring them back to the QT. McGown and Johnson waited at the QT. Waters came back with the pickup but Reggie did not come back. Johnson did not know where Reggie went. Waters told Johnson to get in the pickup. McGown left the QT and then Johnson and Waters left. The police pulled in behind them. Johnson said he wanted to get out but Waters drove off. Johnson did not know why the owner of the Suburban was letting them look at it at 2:00 o clock in the morning. He also said he was not offered anything to come down with the group. Johnson said he did not know the pickup was stolen and did not notice that the steering column was broken when he got in it. Johnson also denied riding through a neighborhood where Waters got out of the car to get the pickup. Johnson changed his story again. He said he got in the pickup in a neighborhood, not at the QT. He was not in McGown s car when Waters pulled up in the pickup; he was standing in the street. Johnson said they had followed Reggie to the Johnson v. State Page 5 neighborhood and got out of McGown s car. He further said that if anyone saw him in the street, it was because he was waiting for Waters. He said that he did not know Waters very well and did not know why Waters asked him to get in the pickup. At trial, Waters testified that he met McGown at a gambling shack in Dallas the night before the theft. They drove around and picked up Johnson, Waters nephew,1 and drank some MD 20/20. Waters said Johnson was already drunk and passed out in the backseat of McGown s car after drinking the MD 20/20. At about midnight or later, Waters and McGown decided to go to Burleson to look at a Chevy Blazer McGown found on Craig s List and to see Waters girlfriend. McGown was just going to roll his window down and look at the Blazer.2 When the Blazer was located, Waters said he had seen a pickup partly in a driveway and partly in a lawn at a place around the block. He got out; and because the pickup was already broken into and running, he decided to steal it. He saw McGown take off in his car, and Waters honked and called McGown to tell him to have Johnson get in the pickup with him. Johnson did but was still tired. When they were stopped by police, Waters said he told Johnson to get out so they would know he was not driving. Then Waters ran. Waters denied knowing anyone named Reggie or that Reggie was with them that morning. Waters agreed that he had five prior convictions for theft and three prior convictions for unauthorized use of a motor vehicle. 1 Johnson never said he was related to Waters. 2 Officers testified that the Blazer, however, was completely blocked in its driveway. Johnson v. State Page 6 SUFFICIENCY OF THE EVIDENCE Johnson was charged with committing theft of a pickup with the intent to establish, maintain, or participate in a combination or in the profits of a combination that collaborated in carrying on the criminal activity. See TEX. PENAL CODE ANN. §§ 71.02 (a)(1); 71.01(a) (West 2011). He was also charged with unlawfully appropriating by acquiring or otherwise exercising control over a pickup with the intent to deprive James Reed of the pickup. See TEX. PENAL CODE ANN. § 31.03 (West 2011). The jury was given an instruction on the law of parties. Johnson argues in his sole issue that the State failed to prove beyond a reasonable doubt that Johnson intended to enter into a conspiracy or commit any offenses with Waters and McGown. Specifically, he contends that because Waters testified that Johnson was unaware that a theft had been committed or that Waters was driving a stolen vehicle, the State failed to prove that Johnson had the requisite mental intent to join the conspiracy or commit the offense contemplated by the conspiracy. The standard enunciated in Jackson v. Virginia is what a reviewing court applies in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); see Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). A reviewing court should not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Blackman v. State, No. PD-0109-10, 2011 Tex. Crim. App. LEXIS 497, *18 (quoting Jackson, 443 U.S. at 318-19) (emphasis in original). "[T]he relevant question is whether, after Johnson v. State Page 7 viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319 (emphasis in original). Direct evidence of the requisite intent is not required. Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002). A jury may infer intent from any facts which tend to prove its existence, including the acts, words, and conduct of the accused, and the method of committing the crime. Id. quoting Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999). A jury may also infer knowledge from such evidence. Id. Further, the jury is entitled to judge the credibility of witnesses, and can choose to believe all, some, or none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). Waters testified that Johnson was passed out when he and McGown decided to go to Burleson to look at the Blazer and when Waters decided to take a pickup. However, Waters version of the events was different from Johnson s versions. Further, Waters testimony was impeached with other versions of the story that he had told police in his video statement. He had also said that the pickup was already broken into and was left running at 1:30 in the morning when he decided to take it. Accordingly, the jury was within its province to disbelieve Waters testimony that Johnson did not know a theft was going to be, and was, committed and to believe that Johnson intended to join the combination and commit the offense contemplated by the combination. Johnson s sole issue is overruled. Johnson v. State Page 8 Having overruled Johnson s sole issue, we affirm the judgment of the trial court. TOM GRAY Chief Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed June 29, 2011 Do not publish [CR25] Johnson v. State Page 9
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