Price v. State

• Court: Texas Court of Appeals
• Writing for the Court: Before REYNOLDS
• Citation: Price v. State, 902 S.W.2d 677 (Tex. App. 1995)
• Decision Date: 21 June 1995
• Docket Number: No. 07-94-0054-CR,07-94-0054-CR
• Parties: Tommy Floyd PRICE, Appellant, v. The STATE of Texas, Appellee.

Page 677

902 S.W.2d 677

Tommy Floyd PRICE, Appellant, v. The STATE of Texas, Appellee.

No. 07-94-0054-CR.

Court of Appeals of Texas Amarillo.

June 21, 1995.

Greg Phifer, Amarillo, for appellant.

James Farren, Dist. Atty., Canyon, Roger Wineinger, Asst. Dist. Atty., for appellee.

Before REYNOLDS, C.J., and DODSON and BOYD, JJ.

In four points of error alleging the evidence is insufficient, appellant Tommy Floyd Price challenges his conviction, after a bench trial, of the offense of burglary of a habitation. His punishment, enhanced by two prior felony convictions, was set by the trial court at fifty (50) years confinement in the Texas Department of Criminal Justice, Institutional Division. For reasons later discussed, we affirm the judgment of the trial court.

Appellant's evidentiary challenges require a thorough review of the trial evidence. On the evening of March 13, 1991, between six and seven o'clock p.m., the residence of Robert Jackson was broken into and several items, including a pistol, four rings, other jewelry and over $2,400 in cash were taken. On March 16, 1991, appellant sold the four rings to a precious metals dealer. After his arrest, on March 22, 1991, appellant gave a statement to the police. ¹ In pertinent part, the statement reads:

About 8 to 10 days ago a guy I know as Keith come to my room, Keith called a taxi and it took us over by Amarillo College. We walked a long way. Keith said he was going to pick up some stuff from a house. I walked around in the back yard. I heard a noise. A few minutes later Keith came out and said "I did pretty good" and I said good. We walked to a Toot-N-Totum on Wimberly. Keith called a cab and we went back to the Caravan Motel on Amarillo Blvd. Keith had a roll of $100 bills.

Keith also had some rings. I have been staying with a girl named Kathy. Keith gave Kathy 14 of the $100 bills and some jewelry. Kathy gave me 12 of the $100 bills and some jewelry. Kathy has a friend named John. We had John take us to [a] pawn shop at the bowling alley. I tried to sell some rings. They would not let me sell the rings because my ID does not have a picture. Kathy had John use his ID to sell the rings.

The State's first witness was Robert Jackson, the owner of the stolen property. Jackson identified four rings recovered from a precious metals dealer as rings which had been stolen from his home. The State's next witness, John Chester Pearl Matson, testified that he accompanied appellant and Kathy Robinson to the metals dealer to sell the rings and that he actually conducted the transaction after the metals dealer would not accept appellant's identification because it did not meet the requirements imposed by statute. Tex.Rev.Civ.Stat.Ann. art. 5069-51.17B(b) (Vernon Supp.1995).

Kathy Robinson testified that she went to the metals dealer with appellant and Matson. She also stated that she knew a man named Keith Padgent who may have been the same person appellant referred to in his statement. She was unsure as to whether appellant knew Keith Padgent and averred that at the time of her arrest, she did not know Padgent's last name. Robinson was not asked to confirm or deny appellant's statement that she gave him money and jewelry.

The State also called Jessie Ogle, a cab driver, who testified that around the date of the burglary he had driven appellant and Kathy Robinson to several places on different occasions. Ogle stated he knew "Keith," and was sure appellant and Keith knew each other but he did not recall ever seeing them together. He also testified that around the date of the burglary, appellant had asked him to hold a small bag which, appellant said, contained jewelry and $1,200 cash. When requested to do so, Ogle was unable to make a courtroom identification of appellant.

Detective Gary Schwab testified that he investigated the burglary for which appellant was being tried. After appellant implicated a person named "Keith" in the offense, Schwab questioned people in various neighborhoods if they knew anyone by that name and inquired around two locations where property taken in other possibly related burglaries was found. However, no one, including appellant, was able to provide further information about Keith's identity, and he was unable to make any further investigation into Keith's identity or location.

The standards by which we determine appellant's challenges are well settled. In reviewing the sufficiency of the evidence, we must determine, after considering all the evidence in a light most favorable to the verdict, 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, 61 L.Ed.2d 560 (1979); Turner v. State, 805 S.W.2d 423, 428 (Tex.Crim.App.1991), cert. denied, 502 U.S. 870, 112 S.Ct. 202, 116 L.Ed.2d 162 (1991); Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988). The test is the same for both direct and circumstantial evidence cases. Green v. State, 840 S.W.2d 394, 401 (Tex.Crim.App.1992), cert. denied, 507 U.S. 1020, 113 S.Ct. 1819, 123 L.Ed.2d 449 (1993). In performing our evaluation, we must resolve all evidentiary inconsistencies in favor of the verdict. Johnson v. State, 815 S.W.2d 707, 712 (Tex.Crim.App.1991) (citing Moreno, 755 S.W.2d at 867).

It is also the rule that in a bench trial, the trial court, as the trier of fact, is the exclusive judge of the credibility of the witnesses, the weight to be given their testimony, and may accept or reject all or any part of the testimony of any witness. Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App.1984), cert. denied, 474 U.S. 865, 106 S.Ct 184, 88 L.Ed.2d 153 (1985); Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim.App.1981).

Additionally, it is also established that when there is independent evidence of a burglary, the unexplained personal possession of recently stolen property will support an inference of guilt of the offense in which the property was stolen. Hardesty v. State, 656 S.W.2d 73, 76 (Tex.Crim.App.1983); Durant v. State, 688 S.W.2d 265, 267 (Tex.App.--Fort Worth 1985, pet. ref'd). The application of such an inference has been held not to violate the due process requirements of the federal constitution. Barnes v. United States, 412 U.S. 837, 846, 93 S.Ct. 2357, 2363, 37 L.Ed.2d 380 (1973). If a defendant offers an explanation as to his possession of recently stolen property, the record must demonstrate that the defendant's explanation at the time his possession is called into question is either false or unreasonable before the evidence will support the conviction of burglary. Whether the defendant's explanation is reasonable or false is an issue to be decided by the trier of fact. The falsity of the explanation may be shown by circumstantial evidence. Adams v. State, 552 S.W.2d 812, 815 (Tex.Crim.App.1977); Smith v. State, 518 S.W.2d 823, 825 (Tex.Crim.App.1975); Hood v. State, 860 S.W.2d 931, 937 (Tex.App.--Texarkana 1993, no writ). If the defendant's explanation is reasonable and is sufficient to rebut the circumstances of his possession of recently stolen property, and other evidence, including the surrounding circumstances, is not sufficient to show the defendant's explanation is false, then the evidence is insufficient to sustain the conviction. Huff v. State, 492 S.W.2d 532, 533 (Tex.Crim.App.1973).

In his first point, appellant contends the evidence is legally insufficient to sustain his conviction because the record does not demonstrate that appellant's explanation of his possession of the recently stolen property was either unreasonable or false.

Parenthetically, we note that the question of a defendant's explanation for his possession of recently stolen property is distinct from the pre-Geesa ² burden on the State to disprove every reasonable hypothesis other than the guilt of the defendant. Here, the State seeks the benefit of an inference of guilt arising out of unexplained possession of recently stolen property. As we noted above, to obtain the benefit of the inference, the State is obligated to show that the defendant was given an opportunity to explain and either 1) failed to give an explanation, or 2) if an explanation was given, the record demonstrates it was false or unreasonable. Adams, 552 S.W.2d at 815; Hood, 860 S.W.2d at 936. This allocation of burdens was not changed by the holding in Geesa. See id.

Contrary to the State's assertions, there is no direct evidence in the record showing the falsity of appellant's explanation. As we have mentioned above, nowhere in Kathy Robinson's testimony was she asked to either confirm or deny appellant's statement that she gave him the jewelry. Appellant's mere inability to locate Keith Padgent while in jail awaiting trial does not, in itself, establish the falsity of his explanation. Without such direct evidence that appellant's explanation was false, the question we must address is whether the surrounding circumstances in the record supports the trial judge's evident conclusion that appellant's explanation was unreasonable and false. As we have discussed, the question of whether a defendant's explanation of possession of recently stolen property is unreasonable is one of fact. Musgrave v. State, 608 S.W.2d 184, 188 (Tex.Crim.App.1980); Adams, 552 S.W.2d at 815; Callahan v. State, 502 S.W.2d 3 (Tex.Crim.App.1973). However, in determining whether the defendant's explanation is reasonable, the factfinder's discretion is not unlimited as shown by cases in which the Texas Court of Criminal Appeals has overturned convictions in which it concluded a defendant's explanation was improperly rejected. See McElyea v. State, 599 S.W.2d 828, 829 (Tex.Crim.App.1980); Huff, 492 S.W.2d at 533.

In both McElyea and Huff, the court found that the defendants' unrefuted explanations that they were innocent purchasers for value of stolen property prevented application of the permissible inference of guilt and...