Freeman v. State

• Decision Date: 23 July 1987
• Docket Number: No. C14-86-189-CR,C14-86-189-CR
• Parties: Albert FREEMAN, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 154

736 S.W.2d 154

Albert FREEMAN, Appellant, v. The STATE of Texas, Appellee.

No. C14-86-189-CR.

Court of Appeals of Texas,

Houston (14th Dist.).

July 23, 1987.

M. Arnold Govella, Houston, for appellant.

John B. Holmes, Jr., Winston E. Cochran, Jr., Houston, for appellee.

Before JUNELL, SEARS and DRAUGHN, JJ.

OPINION

DRAUGHN, Justice.

Appellant Albert Freeman was convicted by a jury of felony theft of a vehicle and sentenced to thirteen years confinement and a five hundred dollar fine. Appellant raises seven points of error on appeal. We affirm.

In his first two points of error, appellant argues that the evidence is insufficient to support the verdict. We disagree.

The standard for reviewing the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Jackson v. State, 672 S.W.2d 801, 803 (Tex.Crim.App.1984) (en banc). This standard applies to both direct and circumstantial evidence cases. Jackson v. State, 672 S.W.2d at 803. When applying this standard to a circumstantial evidence case, the court must review the facts of the case to determine whether the circumstantial evidence supports the conviction. Robinson v. State, 570 S.W.2d 906, 909-910 (Tex.Crim.App.1978). If a review of the record reflects any evidence that establishes guilt beyond a reasonable doubt, the verdict will be upheld and an appellate court cannot reverse the judgment on sufficiency of evidence grounds. Combs. v. State, 643 S.W.2d 709, 716 (Tex.Crim.App.1982).

The record reflects that one of the State's witnesses, Mr. Atkins, testified that he saw appellant, accompanied by another man, get into the vehicle belonging to the complainant and drive away from the complainant's business. The witness testified that he heard a "breaking sound" after he saw the first man get into the car. The police arrested appellant, after a short chase, a few blocks from complainant's business. The car, with a broken steering column, was found in the area where appellant was arrested. The witness came to the location where appellant was arrested and told police that appellant "look[ed] like the man [he] saw". The witness testified, after he identified appellant as the man he saw in the police car, that appellant was the same man he saw in the stolen vehicle. On cross-examination, the witness stated, "I am as certain as I can be" that appellant was the man he saw in the stolen vehicle. Contrary to appellant's arguments, his conviction was based on more than his presence in the vicinity of the stolen car and his flight from the officers. He was identified by an eyewitness to the theft as one of the two men who stole the car. It is well-settled that when the sufficiency of the evidence is challenged, the evidence is to be viewed in the light most favorable to the verdict. The jurors are the exclusive judges of the facts, and credibility of the witnesses, and the weight to be given their testimony. Page v. State, 690 S.W.2d 102, 105 (Tex.App.--Houston [14th Dist.] 1985, pet. ref'd). Appellant's first and second points of error are overruled.

In his third point of error, appellant contends that the court erred by instructing the jury on the law of parties because the evidence was insufficient to convict appellant as a party to the offense. Appellant argues that there was no evidence that he agreed to the commission of any offense or that he solicited, encouraged, directed, aided, or attempted to aid in the commission of an offense. We disagree with appellant's argument.

A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist in the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Tex.Penal Code Ann., § 7.02(a)(2) (Vernon 1974). In reviewing the record to determine whether appellant participated as a party, an appellate court may rely on actions that show an understanding and common design to commit a certain act. Alexander v. State, 607 S.W.2d 551, 553 (Tex.Crim.App.1980); Gordon v. State, 640 S.W.2d 743, 758 (Tex.App.--San Antonio 1982, no pet.). Appellant and his co-defendant do not have to evidence this understanding verbally. Gordon, 640 S.W.2d at 758. The court may consider events before, during, and after the commission of the offense. Harris v. State, 645 S.W.2d 447, 457-58 (Tex.Crim.App.1983) (en banc); Gordon, 640 S.W.2d at 758.

The state's eyewitness saw appellant, accompanied by another man, enter the car after which he heard a breaking sound and saw the car being driven away. Both men were in the car when it left the complainant's residence. This testimony is sufficient to support the court's charge on the law of parties. Appellant's third point of error is overruled.

Appellant contends in his fourth point of error that the testimony of the police officers improperly bolstered the testimony of the eyewitness. We disagree. First, we note that after appellant objected to the state's question, which was addressed to Officer Minger, the attorneys approached the bench for an off-the-record conference. The prosecutor then withdrew the question. The officer never answered the question. We find that this question was not harmful and did not bolster the eyewitness' testimony.

An unanswered question does not create reversible error unless the question itself made it impossible to withdraw from the jurors' minds the impression that the officer would have bolstered the witnesses testimony. Turner v. State, 600 S.W.2d 927, 932 (Tex.Crim.App.1980).

Second, as to the testimony of Officer Trapani, one objection was sustained and, as such, did not preserve error. The second objection that appellant made during Trapani's testimony was overruled, however, the officer did not bolster the eyewitness' testimony. The prosecutor asked Officer Trapani what action he took after he saw the eyewitness view the appellant. The officer replied, "The suspect was then placed in custody and arrested." The officer never stated that the witness identified appellant. Bird v. State, 692 S.W.2d 65, 71 (Tex.Crim.App.1985) (en banc), cert. denied 475 U.S. 1031, 106 S.Ct. 1238, 89 L.Ed.2d 346 (1986); Anderson v. State, 628 S.W.2d 513, 517 (Tex.App.--Corpus Christi 1982, no pet.). Appellant's fourth point of error is overruled.

In his fifth and sixth points of error, appellant argues that the trial court erred in denying appellant's first motion for continuance and in overruling his motion for mistrial. We disagree.

At the conclusion of the testimony of the state's eyewitness, the state asked that the witness be excused. Appellant indicated that he "may possibly need to recall" the witness. The court asked appellant if he could excuse the witness subject to recall and appellant agreed. When the trial reconvened the next Monday, appellant noted that the witness was absent and he "anticipated possibly calling him" to testify. The state replied that the witness had been instructed to return at 9:00 a.m. Monday, but that he was not in the courthouse. When the...