Brown v. State

• Court: Texas Court of Appeals
• Writing for the Court: AL SCOGGINS Justice
• Decision Date: 07 November 2018
• Docket Number: No. 10-17-00104-CR,10-17-00104-CR
• Citation: Brown v. State, No. 10-17-00104-CR (Tex. App. Nov 07, 2018)
• Parties: JEREMY DEASHUN BROWN JR., Appellant v. THE STATE OF TEXAS, Appellee

JEREMY DEASHUN BROWN JR., Appellant v. THE STATE OF TEXAS, Appellee

No. 10-17-00104-CR

STATE OF TEXAS IN THE TENTH COURT OF APPEALS

November 7, 2018

From the 82nd District Court Falls County, Texas

Trial Court No. 9569

MEMORANDUM OPINION

In one issue, appellant, Jeremy Brown Jr., challenges the sufficiency of the evidence supporting his conviction for theft of cattle in an amount less than $100,000, a third-degree felony. See TEX. PENAL CODE ANN. § 31.03(e)(5)(A) (West Supp. 2017). Because we conclude that the evidence is insufficient to support appellant's conviction, we reverse the judgment of the trial court and render a judgment of acquittal.

I. BACKGROUND

Here, appellant was charged by indictment with the offense of theft of cattle in an amount less than $100,000. See id. Appellant pleaded "not guilty," and this matter proceeded to trial. The jury ultimately found appellant guilty of the charged offense. The trial court assessed punishment at ten years' incarceration in the Institutional Division of the Texas Department of Criminal Justice, suspended the sentence, and placed appellant on community supervision for ten years with a $2,500 fine. The trial court also certified appellant's right of appeal, and this appeal followed.

II. SUFFICIENCY OF THE EVIDENCE

In his sole issue on appeal, appellant contends that the evidence supporting his conviction is insufficient. Specifically, appellant argues that the record shows that the offense of theft of cattle was completed hours before he was purportedly involved; as a result, the record does not establish that he was a party to the charged offense.

A. Applicable Law

In Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), the Texas Court of Criminal Appeals expressed our standard of review of a sufficiency issue as follows:

In determining whether the evidence is legally sufficient to support a conviction, a reviewing court must consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the responsibility of the trier of fact fairly toresolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319. "Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction." Hooper, 214 S.W.3d at 13.

Id.

Our review of "all of the evidence" includes evidence that was properly and improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting inferences, we must presume that the factfinder resolved the conflicts in favor of the prosecution and therefore defer to that determination. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. Furthermore, direct and circumstantial evidence are treated equally: "Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt." Hooper, 214 S.W.3d at 13. Finally, it is well established that the factfinder is entitled to judge the credibility of the 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).

The sufficiency of the evidence is measured by reference to the elements of the offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically-correct jury charge does four things: (1) accurately sets out the law; (2) is authorized by the indictment; (3) does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State'stheories of liability; and (4) adequately describes the particular offense for which the defendant was tried. Id.

To prove the offense of theft, the State must prove beyond a reasonable doubt that a person "unlawfully appropriate[d] property with the intent to deprive the owner of the property." TEX. PENAL CODE ANN. § 31.03(a); see Torres v. State, 466 S.W.3d 329, 334 (Tex. App.—Houston [14th Dist.] 2015, no pet.). "An appropriation of property is unlawful if it is without the owner's effective consent." Torres, 466 S.W.3d at 334 (citing TEX. PENAL CODE ANN. § 31.03(b)(1)). Moreover, "[a]ppropriate" means "to acquire or otherwise exercise control over property other than real property." TEX. PENAL CODE ANN. § 31.01(4)(B) (West Supp. 2018); see Hawkins v. State, 214 S.W.3d 668, 670 (Tex. App.—Waco 2007, no pet.).

Here, the jury was provided an instruction on the law of parties. According to the law of parties, each party to an offense may be charged with the commission of the offense. TEX. PENAL CODE ANN. § 7.01(b) (West 2011). A person is a party to an offense if "acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense." Id. § 7.02(a)(2) (West 2011). When a party is not the "primary actor," the State must prove conduct constituting an offense plus an act by the defendant along with the intent to promote or assist such conduct. Beier v. State, 687 S.W.2d 2, 3 (Tex. Crim. App. 1985). Evidence may be deemed sufficient to sustain a conviction under the law of parties if theevidence shows that the defendant was physically present at the commission of the offense and encouraged the commission of the offense either by words or other agreement. Miller v. State, 83 S.W.3d 308, 313-14 (Tex. App.—Austin 2002, pet. ref'd) (citing Urtado v. State, 605 S.W.2d 907, 911 (Tex. Crim. App. 1980); Tarpley v. State, 565 S.W.2d 525, 529 (Tex. Crim. App. 1978)). Circumstantial evidence may suffice to show that a person is a party to the offense. Id. (citing Wygal v. State, 555 S.W.2d 465, 469 (Tex. Crim. App. 1977)).

While mere presence at the scene, or even flight, is not enough to sustain a conviction, such facts may be considered in determining whether a person was a party to the offense. Id. at 314 (citing Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App. 1981) (op. on reh'g); Guillory v. State, 877 S.W.2d 71, 74 (Tex. App.—Houston [1st Dist.] 1994, pet. ref'd)). Moreover, in determining whether a person participated in an offense as a party, the factfinder may examine the events occurring before, during, and after the commission of the offense and may rely on actions of the person that show an understanding and common design to commit the offense. See Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1996) (op. on reh'g); Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985); see also Frank v. State, 183 S.W.3d 63, 72 (Tex. App.—Fort Worth 2005, pet. ref'd).

B. Discussion

In the instant case, the record evidence details an attempt to steal cattle from Henry Kelly. Andre Houston testified that he was leaving from a rodeo in Centerville, Texas, on March 27, 2015. While "head[ing] back down Highway 7 to Highway 6 to go to Stephenville," Andre saw "some cows on the left-hand side on County Road 245." Andre pulled over and closed the gate where Kelly kept his cattle.¹ Andre then called "a buddy of mine" to "tell him about what [he] had going on, that [he] had penned some cows up." After speaking with his buddy, Andre learned that appellant's father, Jeremy Brown Sr., also known as J.D., wanted some cows. Andre later testified that when he shut the gate, he intended to come back and steal Kelly's cattle so that he could sell the cattle to J.D.

Later that night, Andre called his friend Allen "Noonie" Pickney Jr., who lived four houses down from Andre in Houston, Texas. According to Noonie, Andre stated that he needed help "with some horses." Andre also informed Noonie that appellant's father, J.D., would pick up Noonie outside his house. J.D. arrived in a black, flatbed pickup truck. Inside the pickup truck was J.D., appellant, and another person that Noonie did not recognize. The group then traveled to a Shell gas station to meet Andre. At the time of the meeting, Andre was driving a white Dodge 2500 pickup truck withdually wheels. Noonie recalled seeing J.D. and appellant talking to Andre at the Shell gas station.

Subsequently, the group, now in two pickup trucks, drove from the Houston area toward Marlin, Texas. Along the way, Andre stopped at a dance hall in Spring, Texas, so that he could steal a pickup truck. The guy that Noonie did not recognize drove the stolen pickup truck toward Marlin; however, this vehicle was pulled over by law enforcement due to "smoking because of the brakes." Neither the mysterious driver nor the stolen pickup truck had any further involvement in this matter. Nevertheless, Andre's group, which did not include appellant, later stopped at a hotel and stole a dirt bike off of someone's trailer. Throughout the journey from Houston to the scene of the cattle rustling, Andre called J.D. numerous times to discuss plans.

The two groups eventually met up in Marlin. It was at this time that the individuals decided to steal a livestock trailer from the Marlin High School FFA. Andre testified that appellant and Noonie assisted in the stealing of the livestock trailer. While appellant and Noonie were hooking up the livestock trailer to Andre's pickup truck, Andre and J.D. moved the stolen dirt bike onto J.D.'s flatbed. After doing so, the groups drove down Highway 7 until they reached Kelly's property.

Andre recalled the following regarding their arrival at Kelly's property:

We pull out—we pull out here to where the pen is. This is the

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