Hood v. State

• Decision Date: 10 August 1993
• Docket Number: No. 06-93-0016-CR,06-93-0016-CR
• Citation: 860 S.W.2d 931
• Parties: Tony Joe HOOD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 931

860 S.W.2d 931

Tony Joe HOOD, Appellant, v. The STATE of Texas, Appellee.

No. 06-93-0016-CR.

Court of Appeals of Texas,

Texarkana.

Aug. 10, 1993.

Deborah J. Race, Tyler, for appellant.

Richard Townsend, Daingerfield, Randy Lee, Special Prosecutor, Linden, for appellee.

Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.

OPINION

GRANT, Justice.

Tony Joe Hood appeals from a conviction for burglary of a habitation. The jury returned a verdict of guilty and assessed punishment at sixty years' imprisonment.

In a single point of error, Hood attacks the legal sufficiency of the evidence to support his conviction. Specifically, Hood contends that no evidence exists to prove (1) that he entered the habitation that the State alleged he burgled, (2) that he intended to commit theft, or (3) that he ever had possession of any of the stolen property.

In reviewing the legal sufficiency of the evidence to support the verdict, an appeals court should consider all of the evidence in the light most favorable to the verdict. Geesa v. State, 820 S.W.2d 154, 160 (Tex.Crim.App.1991). Under this framework, the question is whether 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). Burglarious entry can be proven by circumstantial evidence. Gilbertson v. State, 563 S.W.2d 606, 608 (Tex.Crim.App. [Panel Op.] 1978). In a circumstantial evidence case, every fact need not point directly and independently to the defendant's guilt; it is enough if the jury's conclusion is warranted by the cumulative force of all the circumstances. Russell v. State, 665 S.W.2d 771, 776 (Tex.Crim.App.1983), cert. denied, 465 U.S. 1073, 104 S.Ct. 1428, 79 L.Ed.2d 752 (1984). The court should measure the sufficiency of the evidence against the jury charge. Geesa, 820 S.W.2d at 159.

The trial court instructed the jury:

[I]f you find from the evidence beyond a reasonable doubt that on or about the 27th day of November, 1991 in Morris County, Texas, the defendant, Tony Joe Hood, did enter a building then and there occupied and used as a habitation by Richard R. Morrison, Jr., without the effective consent of the owner, with the intent then and there to commit the offense of theft therein, then you will find the defendant guilty as charged.

The trial court did not instruct the jury on the law of parties, and therefore Hood could not be convicted under the law of parties. See Walker v. State, 823 S.W.2d 247, 248 (Tex.Crim.App.1991), cert. denied, 503 U.S. 939, 112 S.Ct. 1481, 117 L.Ed.2d 624 (1992). ¹ The jury found Hood guilty as charged.

Some of the facts in the case are undisputed. Richard and Imogene Morrison owned a home in Daingerfield, Texas, and they employed Willy and Virginia Simmons to help take care of the home. On November 26, 1991, the Morrisons left home for a few days and, when they returned on November 30, they found that their home had been burglarized. A window in a french door leading into the utility room had been broken, as had a window in a spare bedroom, and someone had broken a window pane in the master bedroom and bent the window's metal frame. Several items were taken from the home, including some jewelry, a watch, and a .25 caliber pistol.

When the police arrived they discovered shoe prints on the living room carpet and a fingerprint on the outside of the spare bedroom just below the broken window pane. Richard Morrison told the police that he believed that the Simmonses' daughter, Linda, probably stole the items. Police Chief Scott Sartain recovered the stolen weapon around December 3, 1991, from Bruce Roberson, and the police later recovered some of the stolen jewelry from Michelle Jones. The police matched a pair of Linda Simmons's shoes to the shoe prints found in the Morrisons' living room, and they arrested Linda and charged her with burglarizing the Morrison home. She pleaded guilty.

The areas of dispute concern whether Hood participated in the burglary. Linda Simmons testified that she was Hood's girlfriend and had lived with him off and on, that she committed the burglary herself, and that she individually and alone disposed of the stolen items.

Danny Woodard testified that he worked with Hood at the Morrisons' home cleaning out gutters and moving supplies, but his testimony did not specify when he did so. During cross-examination, Woodard expressed uncertainty as to when he had worked with Hood at the Morrisons' home.

The State's case rests primarily on two pieces of evidence: the fingerprint taken outside the home and the testimony concerning Hood's involvement in the sale of the stolen items. Both Hood and the State place much emphasis on the meaning of the fingerprint found below the broken window pane outside the spare bedroom.

In Phelps v. State, the Court of Criminal appeals stated that the fingerprints of a defendant, which necessarily must have been made at the time of the burglary, are sufficient evidence to sustain a conviction even without further evidence of identification. 594 S.W.2d 434, 436 (Tex.Crim.App. [Panel Op.] 1980), citing Dues v. State, 456 S.W.2d 116 (Tex.Crim.App.1970). The fingerprints in the Phelps case, however, were found inside the home that the defendant was accused of burglarizing. Phelps, 594 S.W.2d at 435. In Jones v. State, the court utilized the same standard as in the Phelps opinion, but in Jones the fingerprints were found on a screen that the burglar removed from a window in order to gain entry into the home. 825 S.W.2d 529, 531 (Tex.App.-Fort Worth 1992, pet. ref'd). The court in Jones held that the sum of the evidence, including the fingerprints from the screen, was sufficient to support the verdict. Id. The court did not use the fingerprints by themselves to affirm the conviction.

In the present case, Rachel Riffe of the Texas Department of Public Safety Crime Lab testified that she managed to match seven points on the fingerprint taken at the scene to one taken from Hood, and she further testified that seven points are sufficient to make an identification. She also stated that, although it is impossible to date a fingerprint, rain and heat can cause a print to deteriorate, possibly in less than a month.

In Walker v. State, the Court held that, absent a proper charge on the law of parties, the circumstantial evidence relied on by the State was not sufficient to support the verdict. 823 S.W.2d at 249. The main piece of evidence relied on by the State was a palm print found on a television taken in a burglary. The print was consistent with the defendant's having carried the television. The defendant had also made a statement pinpointing geographically the location of the burglarized store before the police told him which store he was accused of burglarizing. The Court stated that such circumstantial evidence did not rule out the possibility that the defendant only aided the actual burglar by carrying the television from the scene of the crime to the place where the police found it. The Court in Walker, however, utilized the pre-Geesa standard requiring that circumstantial evidence must be sufficient to exclude all reasonable hypotheses except the defendant's guilt. Therefore, although instructional, Walker cannot be considered controlling in regard to post-Geesa cases.

The fingerprint does not demonstrate that Hood actually entered the home, and therefore, although the fingerprint does provide some evidence that Hood may have been at the home at some time, it does not, in itself, establish that he committed the burglary.

The State also produced testimony from Richard Morrison that, in his opinion, Linda Simmons did not have the strength to bend the metal frame around the window in the master bedroom. The State contends that this testimony, viewed in conjunction with the fingerprint, further suggests Hood's involvement in the burglary. This testimony, although certainly not direct evidence of Hood's guilt, does suggest that Linda did not act alone in the burglary. It does not, however place Hood inside the home. The lone fingerprint of Hood's found by the police was not found in the master bedroom, nor does the record contain any evidence that it was Hood who bent the frame. The fingerprint evidence and Morrison's appraisal of Simmons's strength are not, by themselves, sufficient to support the verdict.

The State next contends that Hood's control and management of the stolen property, as evidenced by his involvement in selling items taken in the burglary, demonstrates that he had constructive possession of the items soon after the burglary occurred. When there is independent evidence of a burglary, the unexplained possession of recently stolen property can constitute sufficient evidence of guilt. Garza v. State, 841 S.W.2d 19, 22 (Tex.App.-Dallas 1992, no pet.). The Garza opinion does not require that the State produce independent evidence that the defendant committed the burglary when the defendant is found in recent, unexplained possession of property taken in the burglary.

In the present case, the fact of the burglary is well established by independent evidence. Richard Morrison testified regarding the broken windows and other indications that someone had been inside the home without his permission, and he testified that several items of jewelry, a watch, and a pistol were missing. Police officer Wayne Bullard testified that he examined the house after the Morrisons reported the burglary, and Bullard concluded that someone had made several attempts at entering the house and eventually did gain entry. The testimony given by these two witnesses constitutes independent evidence that a burglary occurred at the Morrison home.

The question now becomes whether there is sufficient evidence in the record to support a conclusion that Hood had unexplained possession of the stolen property soon after the burglary. In order...