Markham v. State

• Court: Texas Court of Appeals
• Writing for the Court: Before CADENA; CANTU; BUTTS
• Citation: Markham v. State, 761 S.W.2d 553 (Tex. App. 1988)
• Decision Date: 30 November 1988
• Docket Number: No. 04-85-00434-CR,04-85-00434-CR
• Parties: Bobby MARKHAM, Appellant, v. The STATE of Texas, Appellee.

Page 553

761 S.W.2d 553

72 A.L.R.4th 693

Bobby MARKHAM, Appellant, v. The STATE of Texas, Appellee.

No. 04-85-00434-CR.

Court of Appeals of Texas San Antonio.

Nov. 30, 1988.

Richard E. Langlois, Kosub & Langlois, San Antonio, for appellant.

Sam Millsap, Jr., Former Crim. Dist. Atty., Fred G. Rodriguez, Crim. Dist. Atty., Robert Reaves, Edward Shaughnessy, III, San Antonio, for State.

Before CADENA, C.J., and BUTTS and CANTU, JJ.

OPINION

CANTU, Justice.

Appellant's conviction of burglary of a vehicle was set aside by an opinion of this Court delivered on July 9, 1986. Markham v. State, 714 S.W.2d 93 (Tex.App.--San Antonio 1986), rev'd, Markham v. State, 751 S.W.2d 190 (Tex.Crim.App.1988). The sole contention on appeal was appellant's challenge to the sufficiency of the evidence.

The Texas Court of Criminal Appeals granted the State's petitions for discretionary review, reversed the judgment of this Court and remanded the cause for consideration of appellant's sole point of error "in a manner not inconsistent with this opinion." Markham v. State, 751 S.W.2d 190 (Tex.Crim.App.1988).

The Court of Criminal Appeals granted both of the State's petitions for discretionary review and upheld both contentions. ¹

We will review the evidence pursuant to the guidelines given by the Court of Criminal Appeals.

We borrow a recitation of the facts from our original opinion:

The State presented three witnesses at the trial. The complaining witness testified that on May 21, 1985, she stopped at a San Antonio Shamrock service station to purchase gas for her automobile. According to the complainant, she was inside the station for approximately three minutes. When she returned to her automobile, a pink leather purse she had left on the seat of the car was gone. The complainant called the police, who arrived within ten minutes. The police notified other officers via the police radio that the burglary had just occurred and that a pink purse had been taken. The complainant did not see the appellant or any other person enter her car.

The State also called two San Antonio Police officers who were working undercover on the day in question to testify. One of the officers, Joe Morris, related that he observed a 1977 red and white Buick, that was under surveillance for suspected involvement in several recent thefts, parked at the Shamrock service station. Morris had been following the Buick, but had lost sight of it for approximately ten minutes. When he relocated the vehicle it was at the Shamrock station. Three men had been in the vehicle while Morris was following it, however, only two men were in the car at the station. Morris parked approximately 100 feet from the Buick and observed a man wearing a green shirt get into the right front passenger side of the car. The man in the green shirt did not have anything in his hands when he got into the car. The Buick left the Shamrock station followed by Morris.

While keeping the Buick under surveillance, Morris heard the broadcast on his police radio concerning the car that had been burglarized at the Shamrock station, and the pink purse that had been taken.

George Lockamy, the other undercover officer involved in the surveillance of the Buick, testified that he had taken over following the Buick when he too heard the broadcast concerning the stolen pink purse from the automobile at the Shamrock station.

Lockamy followed the Buick to a parking lot. The Buick made a u-turn and parked next to Lockamy's car. According to Lockamy's testimony, he determined that the occupants of the Buick recognized that he (Lockamy) was following them, and wanted to find out who he was. Lockamy got out of his car and approached the Buick. Inside, on the back seat, was a pink purse with its contents scattered about. Identification and credit cards near the purse bore the complainant's name. The appellant was sitting in the front passenger seat and was wearing a green shirt. Neither of the other occupants was wearing a green shirt.

Lockamy testified that the right front seat passenger was talking with his arm over the front seat of the Buick to the occupant in the back seat while he was following the Buick. However, at no time did any of the witnesses see appellant with the purse or its contents.

The State contends that appellant's unexplained possession of recently stolen property is alone sufficient to support a conviction for the burglary in which the property was stolen. Since appellant was in the car with the pink purse, and was observed outside the Buick at the location of the burglary, the State maintains that the evidence is sufficient to support appellant's conviction.

Appellant, however, argues that the circumstantial evidence is insufficient. Appellant points out that there were two other men in the vehicle and that appellant himself was not seen in possession of the purse or its contents. Further, appellant argues that the purse was in the back seat of the Buick while he was in the front seat, and that he did not own the vehicle. Thus, appellant maintains that every reasonable hypothesis other than that of guilt has not been excluded. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Wilson v. State, 654 S.W.2d 465 (Tex.Crim.App.1983) (en banc).

Where there is independent evidence of burglary, an unexplained, personal or exclusive possession of recently stolen property is alone sufficient to support a conviction for the burglary from which the property is taken. Jackson v. State, 645 S.W.2d 303 (Tex.Crim.App.1983); Williams v. State, 621 S.W.2d 613 (Tex.Crim.App.1981), cert. denied, 456 U.S. 908, 102 S.Ct. 1755, 72 L.Ed.2d 165 (1982).

We recognize and agree with the Court of Criminal Appeals that the "close juxtaposition" rule has generally been applied in cases where the necessity for a circumstantial evidence charge is in question. With the holding in Hankins v. State, 646 S.W.2d 191 (Tex.Crim.App.1981) (opinion on rehearing) the need for that determination has been obviated since a charge on circumstantial evidence is no longer required and has little value and only confuses.

The rule, however, served other purposes most of which are no longer viable ones. ² One of these purposes was in recognition of the nature of evidence in a qualitative sense. The rule thus recognized that under certain circumstances purely circumstantial evidence assumed the force of direct evidence which in turn was sufficient to sustain a conviction without the need to rely upon inferences or presumptions.

The rule was thus one favorable to the State as it was designed to deprive the defendant of a charge on circumstantial evidence.

Our allusion to the rule was intended to show that the evidence adduced was not such as qualitatively rose to the equivalent of direct evidence and that, in conjunction with the law of parties, the rule of unexplained possession of recently stolen property, still did not present such evidence as met the proof required to sustain a conviction. We, in fact, held that the State reaped no benefit from such a rule and the inferences it permitted.

We then proceeded to review what we considered "weak circumstantial evidence" in the light most favorable to the verdict and concluded that a rational trier of fact could not have found the essential elements of the crime beyond a reasonable doubt.

In arriving at our conclusion we barely made passing reference to the law of parties when we recognized that "appellant's mere presence in the car cannot alone sustain his conviction." We admit that our application of the law of parties could and should have been more exhaustive. To that end, we now focus our attention. But before doing so we think it appropriate to address another of the Court of Criminal Appeals' observations so that we may address appellant's sole point of error in a manner not inconsistent with their guidelines.

We understand that court's opinion to have sustained the State's contention that our holding is in conflict with the holding in Phelps v. State, supra, because said case is a companion case to this case since it involves one of appellant's co-defendants.

We have a problem with the Court's conclusion that a conflict exists between the two cases as far as the facts appear to be sufficient in Phelps to sustain that conviction and our holding that they do not as against Markham.

Nothing in the instant record reveals that the evidence in the Phelps case was similar, identical or otherwise. It is, therefore, mere speculation to suppose that the evidence was the same in both trials. Moreover, it is highly inappropriate to resort to another record to find support for the sufficiency of the evidence in this case. Ballew v. State, 82 Tex.Cr.R. 398, 199 S.W. 1109 (1917); Wisnoski v. State, 68 Tex.Cr.R. 382, 153 S.W. 316 (1913). See also Harrington v. State, 135 Tex.Cr.R. 243, 117 S.W.2d 1091 (Tex.Crim.App.1938).

Reluctantly and with strong reservation we have, nevertheless, examined the record in Phelps and immediately note the following differences. ³

PHELPS

1. tried on November 21, 1985

2. Prosecutor--Tina Tussay

3. Defense Attorney--Carol H. Weir

4. Witnesses

(a) Terri May--6 pages of testimony

(b) Officer Joe Morris--27 pages of testimony

(c) Officer George Lockamy--20 pages of testimony

MARKHAM

1. tried on September 17, 1985

2. Prosecutor--Robert Reaves

3. Defense Attorney--Oscar H. Villarreal

4. Witnesses

(a) Officer Joe Morris--24 pages of testimony

(b) Officer George Lockamy--12 pages of testimony

(c) Terri May--5 pages of testimony

It is evident that when the Phelps case was tried the State had the benefit of two months to digest the testimony from the Markham case before prosecuting Phelps.

Whether the case against Phelps was a stronger one is purely conjectural and any expression we might make would serve no purpose. We decline to engage in a qualitative or quantitative comparison of both cases because the law and our...