Beverly Sanford v. The State of Texas--Appeal from County Court at Law No 2 of Smith County

NO. 12-04-00330-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

BEVERLY SANFORD, APPEAL FROM THE

APPELLANT

V. COUNTY COURT AT LAW #2

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Beverly Sanford appeals her conviction for hindering apprehension or prosecution. In two issues, she contends that the evidence was legally and factually insufficient to support her conviction. We affirm.

Background

Authorities in Smith County, working with employees at the Home Depot retail store, set up a sting operation to entice Cassandra Green to come to the store so they could arrest her. Green had apparently been involved in the illegal use of a credit card. Green appeared at the store, but left before the police were able to arrest her. She was seen walking to a silver sport utility vehicle. A police officer who had not been in the store stopped the silver sport utility vehicle before it could leave the parking lot. He observed Appellant driving, but did not see Green. According to the officer, he asked Appellant if she were Green, where the woman was, and if anyone else was in the vehicle. Appellant said she was not Green, no one else was in the car, and she did not know what the officer was talking about. About four minutes later, a Home Depot employee walked out to the vehicle and indicated to the officer that Green was hiding in the back seat of the vehicle under some clothes. Appellant s story was different. She testified that she did not lie to the authorities and that she was never asked if there was anyone else in the car. She also testified that Green was not hiding, but was sitting upright in the back seat of the vehicle the entire time.

Green was arrested for credit card abuse, and Appellant was arrested for hindering apprehension or prosecution. Appellant was charged by information with the misdemeanor offense of hindering apprehension or prosecution and found guilty after a jury trial. The jury assessed punishment at 365 days of confinement, probated for two years, and a fine of $1,000. This appeal followed.

Sufficiency of the Evidence

In her first and second issues, Appellant argues that the evidence was legally and factually insufficient to show that she hindered the apprehension or prosecution of Cassandra Green. The State did not file a brief.

Standard of Review

In evaluating the legal sufficiency of the evidence, 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 offense beyond a reasonable doubt. Russeau v. State, 171 S.W.3d 871, 877 (Tex. Crim. App. 2005) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560)). In reviewing factual sufficiency, we must determine whether a neutral review of the evidence, both for and against the finding, demonstrates that a rational jury could find guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also factually insufficient when contrary evidence is so strong that the beyond a reasonable doubt standard could not have been met. Id. at 484-85. A verdict will be set aside only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust. Ortiz v. State, 93 S.W.3d 79, 87 (Tex. Crim. App. 2002); Sims v. State, 99 S.W.3d 600, 601 (Tex. Crim. App. 2003). A clearly wrong and manifestly unjust verdict occurs where the jury s finding shocks the conscience or clearly demonstrates bias. Zuniga, 144 S.W.3d at 481.

In both legal and factual sufficiency review, the fact finder is the sole judge of the weight and credibility of a witness s testimony. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). The jury may choose to believe all, some, or none of a witness s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).

The elements of the offense of hindering arrest or prosecution are found in section 38.05 of the penal code which provides, in relevant part, that a person commits an offense if, with intent to hinder the arrest, prosecution, conviction, or punishment of another for an offense, he harbors or conceals the other. Tex. Pen. Code Ann. 38.05 (Vernon 2005).

Legal Sufficiency

Appellant has two complaints about the evidence. First, she complains that there was no evidence that she harbored or concealed Green or any evidence that she did so to prevent an arrest. Second, she complains that the State did not prove what it alleged in the charging instrument. Specifically, the charging instrument alleges that Appellant harbored or concealed Green with the intent to hinder the arrest, prosecution, conviction, or punishment of Cassandra Green for the offense of a warrant for credit card abuse. We will address these complaints individually.

Evidence of the offense

Contrary to Appellant s suggestion, there was evidence that she harbored or concealed Green. Specifically, there was testimony that she told the police there was not anyone else in the car. This served to conceal or harbor Green, if only for a short time. If Appellant had been successful in her deception, she would have been able to drive away and Green would have escaped arrest.

There is no direct evidence that Appellant was harboring or concealing Green from arrest, prosecution, conviction, or punishment. But this type of specific intent is ordinarily established by circumstantial evidence. See, e.g., Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995) (intent may be discerned from the acts, words, and conduct of the accused); Caddell v. State, 865 S.W.2d 489, 492 (Tex. App. Tyler 1993, no pet.) (because direct evidence is rarely available to prove a conspiracy, circumstantial evidence must be relied on to prove the essential elements of the crime). Furthermore, the State is not required to prove the actor knew that an offense has been committed or that the purported offender is guilty of that offense. Easter v. State, 536 S.W.2d 223, 228 (Tex. Crim. App. 1976). Indeed, the gravamen of the offense rests on the intent of the defendant, not the intent of the police, and the offense may be complete even if police are still engaged in the preliminary investigation of an offense and have not yet focused their suspicion on the person being concealed. King v. State, 76 S.W.3d 659, 661 (Tex. App. Houston [14th Dist.] 2002, no pet.). Appellant lied to the police about Green being in the back seat of her vehicle when it was clear that the police sought her. A reasonable inference from the evidence was that Appellant lied about whether Green was in the car to protect her from apprehension.

The variance

The State proved that Green was sought for the offense of credit card abuse, but introduced no evidence that there was a warrant for her arrest. Appellant complains that this variance between the charging information and the evidence entitles her to an acquittal on appeal.

The sufficiency of the evidence is measured against the offense as defined by a hypothetically correct jury charge, not by the actual charging instrument. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State s burden of proof or unnecessarily restrict the State s theories of liability, and adequately describes the particular offense for which the defendant is tried. Id. A hypothetically correct jury charge need not incorporate allegations that give rise to immaterial variances. Gollihar v. State, 46 S.W.3d 243, 256 (Tex. Crim. App. 2001). A variance is only material if it is prejudicial to a defendant s substantial rights. Id. at 247 48.

A hypothetically correct jury charge in this case would ask the jury if Appellant did, with the intent to hinder the arrest, prosecution, conviction, or punishment of Cassandra Green for an offense, harbor or conceal Cassandra Green. The question is whether the substitution of the hypothetically correct an offense for the offense of a warrant for credit card abuse as found in the charging information prejudiced Appellant s substantial rights.1

Appellant s substantial rights are prejudiced only if the information or indictment failed to inform her sufficiently of the charge against her to allow her to prepare an adequate defense at trial, or if prosecution under the deficiently drafted information would subject Appellant to the risk of being prosecuted later for the same crime. Gollihar, 46 S.W.3d at 257.

In this case, the unnecessary allegation did not mislead Appellant. Her defense did not depend on whether Green s arrest was pursuant to a warrant. Her defense was that she did not hinder Green s apprehension. This theory was not affected by the superfluous and unproven allegation that there was a warrant for Green s arrest. Nor do we perceive any risk to Appellant of being prosecuted again for the same hindrance. Therefore, the variance was immaterial.

Examining the evidence and the available inferences in the light most favorable to the jury s verdict, we conclude that the jury could have reasonably determined beyond a reasonable doubt that Appellant intentionally hindered the arrest, prosecution, conviction, or punishment of Cassandra Green for an offense. The evidence was legally sufficient to support the jury s verdict. We overrule Appellant s first issue.

Factual Sufficiency

After a neutral review of the evidence, we reach the same conclusion. We have reviewed the record in its entirety. We are mindful that our evaluation must not substantially intrude upon the jury s role as the sole judge of the weight and credibility of witness testimony. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). A police officer testified that he asked Appellant if she were Cassandra Green, where the woman was, and if there was anyone else in the car. Appellant testified she was never asked such things and that Green was sitting upright in the back of the vehicle during the encounter. The jury chose to believe the officer.

The jury determines which witness to believe and resolves any inconsistencies in the evidence. See Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000). A reviewing court must be deferential to the jury s determination as to the weight of evidence and the credibility of witnesses. Id. at 7. We cannot say, based upon a neutral review of this record, that the evidence is so weak that a jury was not rationally justified in finding the Appellant guilty beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484. Neither can we say that considering all of the evidence, both for and against the verdict, the contrary evidence is so strong that the beyond a reasonable doubt standard could not have been met. Id. at 484-85. We overrule Appellant s second issue.

Disposition

The evidence is both legally and factually sufficient to support Appellant s conviction. We affirm the trial court s judgment.

SAM GRIFFITH

Justice

Opinion delivered April 28, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(DO NOT PUBLISH)

1 The State was required to allege and prove that the person was sought for an offense. Key v. State, 800 S.W.2d 229, 231 (Tex. App. Tyler 1990, pet ref d); King, 76 S.W.3d at 662.