Fee v. State

Decision Date31 December 1986
Docket NumberNo. 04-84-00252-CR,04-84-00252-CR
Citation722 S.W.2d 234
PartiesSteven FEE, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Appeals

Richard Langlois, San Antonio, for appellant.

Sam Millsap, Jr., Charles Strauss, Barbara Hervey, Criminal Dist. Attys., San Antonio, for appellee.

Before CANTU, REEVES and TIJERINA, * JJ.

OPINION

REEVES, Justice.

A jury found appellant, Steven Fee, guilty of Engaging in Organized Criminal Activity. The court assessed punishment at 50 years' in the Department of Corrections.

The indictment charges:

... on or about the 11TH day of AUGUST, A.D., 1983, JOSE L. ARAUJO, THOMAS SCOTT BATES, STEVEN FEE, BENJAMIN A. MORGAN, JERRY LEE PIERCE, JOSE JORGE TREVINO, JR., and JAMES HENRY WOERNER, JR., hereinafter called defendants, together with others unknown to this Grand Jury, with intent to establish, maintain and participate in a combination and in the profits of a combination, did then and there conspire and agree to commit and did commit the criminal offense of Theft over $20,000.00, and in pursuance of such agreement the said defendants performed overt acts as follows, to-wit:

On or about the 11TH day of AUGUST, A.D., 1983, in Bexar County, Texas, STEVEN FEE, JERRY LEE PIERCE, BENJAMIN A. MORGAN JOSE L. ARAUJO, THOMAS SCOTT BATES, and JAMES HENRY WOERNER, JR., with the intent to deprive the owner, MICHAEL POLANSKY, of property, namely: A 1979 International truck tractor and a 1981 Budd flatbed trailer, did unlawfully appropriate said property by acquiring and otherwise exercising control over said property, said property being other than real property which had an aggregate value of $10,000.00 or more, without the effective consent of the owner; and

On or about the 7TH day of SEPTEMBER, A.D., 1983, in Bexar County, Texas, STEVEN FEE, JERRY LEE PIERCE, BENJAMIN A. MORGAN, JOE JORGE TREVINO, JR., and THOMAS SCOTT BATES, with the intent to deprive the owner, MICHAEL BRASHEAR, of property, namely: A 1983 White truck tractor and a 1983 Aztec platform trailer, did unlawfully appropriate said property by acquiring and otherwise exercising control over said property, said property being other than real property which had an aggregate value of $20,000.00 or more, without the effective consent of the owner;

The material facts begin with Mr. Cruz Martinez, the lessee of ten acres of property in San Antonio. Mr. Martinez uses the property as a residence for himself and his family and for conducting his salvage business.

In early August 1983, Jerry Lee Pierce subleased a portion of Martinez's property. Two or three days later, he informed Martinez that a tractor-trailer would be arriving with a load of steel Pierce had sold. Later that day, Benjamin Morgan arrived with the load and parked it across the road from Martinez's property. After Pierce arrived, Morgan drove the International rig onto that portion of Martinez's property subleased by Pierce. An hour later, Steven Fee arrived with a group of men. Sometime that evening the group began cutting up the tractor and trailer.

That same evening, Mr. Martinez took his family to a dance. When the family returned home about 4:00 A.M., Mr. Martinez noticed a light coming from Pierce's portion of the property. He and his son, Jesse Martinez, investigated. When they got there, Mr. Martinez saw a group of men, including James Woerner, Pierce, and Fee cutting up the tractor and trailer. At trial Mr. Martinez testified that while he did not see Fee actually cut any part of the rig, he did see a cutting torch in his hand. When Mr. Martinez asked who owned the rig, Fee said it was "our merchandise." Mr. Martinez returned to his house. When he got there, he saw Fee's car parked in the front. Morgan was sitting inside listening to a police radio.

The next morning, Bates hauled most of the pieces of the tractor and trailer away. Thereafter, Fee informed Martinez that he had sold the load of steel that was on the trailer when it first arrived, and, since he had not been paid, he requested Martinez to collect and hold the proceeds of the sale should the buyer come by and pay in his absence. Martinez agreed. The buyer did come by and pay Martinez. Later, Fee showed up with Jose Araujo to collect the money. When Martinez attempted to give the cash to Fee, Fee told him to give it to Araujo, which he did.

Events then jump to early September 1983, at which time a second International tractor with a Budd flatbed trailer was driven onto Martinez's property. Fee called Jose Trevino and asked him to pick him up at the Martinez property because his car had a flat tire. While at Martinez's property, Trevino saw the trailer turned over on its side. Shortly thereafter it was cut up. Fee asked permission to take the tractor to Trevino's property in Atascosa County. Trevino agreed and Fee drove the tractor while Trevino and Woerner followed in Trevino's car. The next day, a Department of Public Safety investigator went to Trevino's property in Atascosa County and informed Trevino that a stolen vehicle was reported on his property. Trevino gave the inspector permission to search the property during which time the stolen tractor was found.

On the same day the inspector recovered the stolen tractor, Bates hauled off the pieces of the cut-up trailer from the Martinez property. The stolen tractor's recovery set in motion an investigation which culminated in the aforementioned indictment.

Appellant's first three points of error contend the evidence is insufficient to establish beyond a reasonable doubt that Woerner, Araujo and Scott conspired to commit theft or committed theft with the intent to participate in a combination, or in the profits of a combination. Obviously, if the evidence is insufficient as to these three, Fee's conviction must be reversed because the State will have failed to prove five or more persons were involved in criminal activity as required by law. TEX.PENAL CODE ANN. §§ 71.01 and 71.02.

We begin our analysis with the pertinent law. Fee was convicted of an offense provided for in TEX.PENAL CODE ANN. § 71.02(a)(1), which states:

(a) A person commits an offense if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination, he commits or conspires to commit one or more of the following:

(1) murder, capital murder, arson, aggravated robbery, robbery, burglary, theft, aggravated kidnapping, kidnapping, aggravated assault, or forgery;

Section 71.01 provides the following definitions:

(a) "Combination" means five or more persons who collaborate in carrying on criminal activities, although: ...

(2) membership in the combination may change from time to time; ...

(b) "Conspires to commit" means that a person agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense and that person and one or more of them perform an overt act in pursuance of the agreement. An agreement constituting conspiring to commit may be inferred from the acts of the parties.

Our Court of Criminal Appeals in Clayton v. State, 652 S.W.2d 950, 955-56 (Tex.Crim.App.1983) held that there are two essential elements that must be proven to support a conviction under the organized crime statute: "forbidden conduct" and "required culpability." In this case the forbidden conduct is: "conspire and agree to commit and did commit the criminal offense of Theft over $20,000.00." 1 The required culpability is: "... with intent to establish, maintain and participate in a combination and in the profits of a combination."

While the State must prove these elements, it need not prove that Woerner, Araujo and Scott participated in the theft. Section 71.03 notes:

It is no defense under Section 71.02 of this code that:

(1) one or more members of the combination are not criminally responsible for the object offense; ... or

(4) once the initial combination of five or more persons is formed there is a change in the number or identity of persons in the combination as long as two or more persons remain in the combination and are involved in a continuing course of conduct constituting an offense under this chapter.

Having set out the elements, we point out that this is essentially a circumstantial evidence case with the standard of review the same as in a direct evidence case. After reviewing the evidence in the light most favorable to the prosecution, the court must determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. In making that determination, we must utilize the "exclusion of outstanding reasonable hypothesis" analysis. Carlsen v. State, 654 S.W.2d 444, 449 (Tex.Crim.App.1983).

We begin the analysis with the evidence of Woerner's involvement. Jesse Martinez testified that Woerner was present at approximately 4:00 A.M. when other members of the group were cutting the tractor trailer into pieces. While there, Jesse saw Woerner get into an argument with Pierce and leave the scene. Begnino Parra, Cruz Martinez's son-in-law, testified that the next day he saw Woerner drive up to the area where part of the group was cutting the trailer, and that Woerner remained there about 20 minutes. Jose Trevino identified Woerner as the man who, along with Fee, drove the second tractor to Trevino's property in Atascosa County.

The acts of conspirators, as well as circumstances surrounding their acts and conduct is evidence of an agreement to conspire to commit a crime. Kennard v. State, 649 S.W.2d 752, 763 (Tex.App.--Fort Worth 1983, pet. ref'd). The evidence was sufficient to show Woerner was a member of the combination.

We next consider Araujo's involvement. When Fee showed up at Martinez's to collect the proceeds from the sale of the steel, he was accompanied by Araujo. Fee instructed Martinez to give the money to Araujo. The only other testimony concerning Araujo came from Parra, who stated that he saw...

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4 cases
  • Skillern v. State
    • United States
    • Texas Court of Appeals
    • 7 Diciembre 1994
    ...v. State, 593 S.W.2d 690, 694 (Tex.Crim.App.1980); Livingston v. State, 542 S.W.2d 655, 657 (Tex.Crim.App.1976); Fee v. State, 722 S.W.2d 234, 242 (Tex.App.--San Antonio 1986), rev'd on other grounds, 841 S.W.2d 392 Although there was no compliance with article 1.14(b), appellant did raise ......
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    • Texas Court of Criminal Appeals
    • 14 Octubre 1992
    ...Court of Appeals reformed the judgment to reflect that the sentence was enhanced, and affirmed the conviction. Fee v. State, 722 S.W.2d 234 (Tex.App.--San Antonio, 1986). I. The indictment in this cause alleged that appellant and six others "did ... conspire to commit and agree to commit an......
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    ...case where value is the determining factor in the punishment range and the value was not pled. See also Fee v. State, 722 S.W.2d 234, 241 (Tex.App.--San Antonio 1986, pet. granted). Benoit v. State, 561 S.W.2d 810 (Tex.Crim.App.1977), follows Standley and has a detailed discussion on the re......
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    • Texas Court of Appeals
    • 27 Abril 1995
    ...a ruling on his contention, we find that he is precluded from addressing this differing assertion on appeal. See Fee v. State, 722 S.W.2d 234, 241 (Tex.App.--San Antonio 1986), reversed on other grounds, 841 S.W.2d 392 (Tex.Crim.App.1992). Supplemental Point of Error No. One is Having overr......

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