Dorsey v. State

• Decision Date: 20 December 1996
• Docket Number: No. 05-94-00943-CR,05-94-00943-CR
• Citation: 940 S.W.2d 169
• Parties: Alester Demetrias DORSEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 169

940 S.W.2d 169

Alester Demetrias DORSEY, Appellant, v. The STATE of Texas, Appellee.

No. 05-94-00943-CR.

Court of Appeals of Texas,

Dallas.

Dec. 20, 1996.

Jeffrey B. Keck, Dallas, for Appellant.

Karen J. Greene, Assistant District Attorney, Dallas, for Appellee.

Before LAGARDE, WRIGHT and WOLFE, JJ.

OPINION

LAGARDE, Justice.

Alester Demetrias Dorsey appeals his conviction of burglary of a vehicle. After finding appellant guilty, the jury assessed his punishment, enhanced by two prior felony convictions, at life imprisonment. In three points of error, Dorsey contends that 1) the trial court erred in overruling his Batson ¹ objection, 2) the trial court improperly admitted into evidence, over objection, his unrecorded custodial statement, and 3) the evidence was insufficient to show that he was guilty of the offense charged. We affirm the trial court's judgment.

FACTUAL BACKGROUND

On September 17, 1993, Purvis Maroney, an off-duty Dallas police officer, received a telephone call at approximately 2:30 a.m. in his apartment. In response to this call, Maroney looked out of the first-floor window of his bedroom onto the parking lot thirty to fifty feet away. He saw a light-brown or tan two-door General Motors car driving slowly through the parking lot with two males visible on the right side. One sat in front while the other leaned forward from the backseat as he looked out of the window. As the car turned into a cul-de-sac, Maroney noted a partial license plate number: 573.

Maroney telephoned Detective Paul Ellzey, an undercover officer on special assignment investigating property crimes in the area, and alerted him to the fact that a suspicious vehicle was in the complex. In the process of getting dressed, Maroney returned to the window. He saw two black males with flashlights looking into the front passenger side of a maroon car. One man was tall and wore dark clothes; the other man was shorter and wore a multicolored jacket.

Maroney called Ellzey again to report that suspicious persons were looking into cars at the complex. Maroney returned to the window and saw the tall man leaning into the inside of the car. The man appeared to be doing something to the dashboard. The shorter man, identified by Maroney in court as Dorsey, stood next to the other man and looked around the parking lot. Maroney testified that the term for what Dorsey was doing is "good eye," which means that it was Dorsey's responsibility to notify the tall man if anyone was watching or arriving on the scene. When Maroney saw the tall man actually leaning into the car, he advised Ellzey that a burglary was in progress.

Maroney went outside and saw two males running, one a tall man, and the other wearing a multicolored jacket. The tan car earlier seen by Maroney drove up, and the two men jumped in. As the car left the complex, Maroney saw more of the license plate number: 573 SB. He notified Ellzey that the car was headed toward Leisure Street, and Ellzey confirmed that he had the car in sight. Maroney returned to the maroon car and noticed that broken glass covered the surrounding concrete area, the right front passenger window was broken, and wires hung from the dash where some object had been removed. After Maroney advised Ellzey that a burglary of the motor vehicle had indeed occurred, he discovered that the owner of the car was Kimberly Davis.

Ellzey, meanwhile, saw a yellow, ² two-door Oldsmobile, license plate number 573 SB, with three black males inside, one wearing a multicolored jacket, drive out of the complex. He followed the car until it stopped at a gas station. The front passenger, approximately six feet, five inches tall, stepped out of the car carrying a stereo in his hands. The tall man put the stereo into the trunk and returned to the front seat. When Maroney radioed verification that an offense had occurred, Ellzey arranged for two uniformed officers, Brent Duffield and Curtis Steger, in a marked squad car to stop the vehicle. Ellzey observed the stop through binoculars and then went to the offense location to personally confirm that the car had been burglarized. He told Duffield and Steger to place the suspects under arrest, inventory the vehicle, and bring the stereo to him at the complex.

When Duffield and Steger opened the trunk, they found flashlights and screwdrivers along with several radios, telephones, and radar detectors with wires hanging, thrown in a pile. Davis identified her stereo and radar detector, and the officers released them to her. The officers seized the other property and transported the arrestees to the police substation.

Ellzey advised Dorsey of his Miranda ³ rights, and Dorsey, wearing a blue-and-white nylon jacket, waived his rights and agreed to talk with Ellzey. ⁴ Dorsey refused to make a written statement, however, and no recording equipment was available. Dorsey told Ellzey that he stood by while Judge Richardson went inside the burglarized car. Dorsey told Ellzey, "The only thing I did was look for the cops to let him know if somebody was coming or watching." Then, Dorsey identified the other property found in the trunk, told Ellzey where it came from, and offered to take the officers to another car that he and Richardson had burglarized that night. Before they left, Dorsey described the make, color, and location of the second car. Duffield and Steger accompanied Dorsey, and they found the car that Dorsey described located across the street from Davis's car. Dorsey repeatedly stated that he did not break any windows and that his involvement was strictly as a lookout.

SUFFICIENCY OF EVIDENCE

In his third point of error, Dorsey contends that the evidence was insufficient to show that he was guilty of the offense charged. The State argues that the evidence is sufficient to sustain Dorsey's conviction of burglary of a motor vehicle.

Dorsey contends that the charge does not permit him to be convicted as a party because neither the application paragraph nor the definitions in the jury charge told the jury that before Dorsey could be convicted of burglary as a party, the jury would have to conclude beyond a reasonable doubt that some other person actually committed the burglary. In support of this argument, Dorsey cites Walker v. State, 823 S.W.2d 302 (Tex.App.--Tyler), aff'd per curiam, 823 S.W.2d 247 (Tex.Crim.App.1991), and cert. denied, 503 U.S. 939, 112 S.Ct. 1481, 117 L.Ed.2d 624 (1992).

In Walker, the charge contained an abstract instruction on the law of parties but did not reference the law of parties in the application paragraph. Id. at 305, 306 n. 5. The court held that the charge did not require the jury to find beyond a reasonable doubt that someone other than the appellant committed the offense. Id. at 307-08. Therefore, the charge did not permit the appellant to be convicted as a party. Id. at 308. Because the evidence was insufficient to prove that the appellant individually committed the offense, the court ordered the appellant acquitted. Id. at 309.

In this case, the application paragraph stated:

Now if you find from the evidence beyond a reasonable doubt that ... the defendant ... acting individually or as a party to the offense, if any, did knowingly or intentionally break into or enter a vehicle....

The charge defined the law of parties as follows:

All persons are parties to an offense who are guilty of acting together in the commission of the offense. A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or both.

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, aids, or attempts to aid the other person to commit the offense.

(Emphasis added.) The application paragraph clearly required the jury to find beyond a reasonable doubt that the offense was committed by the defendant acting individually or as a party. The definition of "party" clearly required that the offense be committed by a person for whose conduct the defendant is criminally responsible. Because the charge did instruct the jurors that before Dorsey could be convicted as a party they would have to conclude beyond a reasonable doubt that some other person actually committed the burglary, Walker does not apply, and Dorsey's argument lacks merit. We hold that the charge permitted the jury to find Dorsey guilty as a party.

Dorsey next contends that the evidence is insufficient to convict him as a party. Although the court of criminal appeals recently authorized appellate courts to review the factual as well as the legal sufficiency of evidence, Dorsey does not raise a factual sufficiency point; consequently, we will not address this issue. See Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App.1996) (appellate courts should conduct a factual sufficiency review if such a point is raised on appeal ).

When reviewing the legal sufficiency of the evidence, this Court must examine the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Emery v. State, 881 S.W.2d 702, 705 (Tex.Crim.App.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1257, 131 L.Ed.2d 137 (1995). In making this determination, the reviewing court considers all the evidence, including improperly admitted evidence. Rodriguez v State, 819 S.W.2d 871, 873 (Tex.Crim.App.1991). The evidence is sufficient to support a conviction of guilt if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances. Livingston v. State, 739 S.W.2d 311, 330 (Tex.Crim.App.1987), cert. denied, 487 U.S. 1210, 108 S.Ct. 2858, 101 L.Ed.2d 895 (1988).

In a jury trial, we review the sufficiency of the evidence under the...