Rollerson v. State

• Decision Date: 27 June 2007
• Docket Number: No. PD-0962-06.,No. PD-0964-06.,PD-0962-06.,PD-0964-06.
• Citation: 227 S.W.3d 718
• Parties: Kerry Larnez ROLLERSON, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

227 S.W.3d 718

Kerry Larnez ROLLERSON, Appellant v. The STATE of Texas.

No. PD-0962-06.

No. PD-0964-06.

Court of Criminal Appeals of Texas.

June 27, 2007.

Steven R. Miears, Bonham, for Appellant.

Jeffrey L. Van Horn, First Assistant State's Atty., Matthew Paul, State's Atty., Austin, for State.

OPINION

COCHRAN, J., delivered the opinion of the Court, in which KELLER, P.J., and MEYERS, PRICE, JOHNSON, KEASLER, HERVEY, and HOLCOMB, JJ., joined.

Floyd McCoin, James Hines, and Neil Norrell all had their homes burglarized. Guns were stolen in the McCoin and Norrell burglaries, and gun parts were left behind in the Hines burglary. Appellant was charged with committing all three burglaries. The trial judge, in a consolidated trial, found him guilty of seven felony offenses relating to those three burglaries. He also entered deadly-weapon findings in each of the seven judgments.

In three separate published opinions— each dealing with an individual burglary— the court of appeals affirmed four of the felony convictions and reversed the other three for factual insufficiency.¹ The court of appeals also found the evidence legally insufficient to support any of the deadly-weapon findings, and so it deleted those findings from the four convictions it affirmed. It also declared that the State could not, on retrial of any of the reversed counts, seek a deadly-weapon finding.²

Appellant, seeking review of the Norrell case, questions whether the court of appeals applied the correct legal and factual sufficiency standards when it affirmed his theft of a firearm and felon in possession of a firearm convictions.³

The State Prosecuting Attorney, seeking review of the Hines case, questions whether the court of appeals correctly held that it could not again seek an affirmative deadly-weapon finding on the retrial of the reversed burglary count.⁴

We hold that the court of appeals correctly affirmed the convictions in the Norrell case, but was mistaken in its deadly-weapon statement in the Hines case. We thus 1) affirm the Norrell case, but 2) disavow the court's statement in the Hines case that the State may not seek a deadly-weapon finding on the retrial of the burglary charge.

I.

In the summer of 2003, three separate houses in Lamar County—all on the outskirts of Paris, Texas—were burglarized on three consecutive days.

Floyd McCoin's house was burglarized first. On July 15th, Mr. McCoin, who had left home after eating lunch, came back with his grandson around 2:00 p.m. to find that his house had been burglarized and ransacked. The television was gone, and so were several other items—jewelry, a telephone, coins, and something that Mr. McCoin considered an heirloom, "a Belgian made gun that had German swastikas on it" that he had taken from "a German prisoner in World War II."

James Hines's house was burglarized the next day. Mr. Hines left his home in the morning to fix a flat tire at a gas station. When he returned, he noticed that his dog was out and his back door open. He knew something was amiss, and he quickly realized that he had been burglarized and his house ransacked. "The drawers on everything was pulled out, it was dumped on the beds. The TV was gone. My binoculars on the icebox was gone. Metal boxes were gone. The front bedroom, all of the dressers were ransacked. The ones in the back bedroom were [also]." He called the police and when a detective arrived, they noticed a revolver cylinder in the front bedroom and then found the cylinder pin for that revolver outside. Mr. Hines did not own a revolver, but he noticed that the cylinder "had some shells in it." This upset Mr. Hines because it meant that the burglar was armed when he entered and ransacked the house.

On July 17th, the day after the Hines's burglary, Neil Norrell's house was burglarized. Someone forced open his front door with a crowbar or large screwdriver and emptied his gun cabinet of ten guns, including shotguns, rifles, semi-automatic pistols, and revolvers. The burglar also stole his extensive collection of uncirculated coins.

The three burglaries were quickly connected by Joe Tuttle, the lead detective. He noted that the burglaries occurred on consecutive days; all three homes were "in the rural country, off a country road"; all were burglarized in the daytime when no one was home; and similar items were taken during each burglary.

Police alerted local merchants to look out for uncirculated coins. On July 18th, the day after the Norrell burglary, the owner of Pappy's Food Mart told police that "a black male and a black female in a grayish—looking suburban" had just brought in some uncirculated coins⁵ A few hours later, appellant and LaTonya Brigham were detained at Westside Checking after they came in to cash in some brand new coins. Appellant had a small brown bank bag full of uncirculated coins. Mr. Norrell's engraved briefcase was found in Ms. Brigham's car.

Appellant's brother, Cory Rollerson, watched as his brother was arrested. When he heard that appellant was being arrested on a burglary investigation involving guns and coins, Cory went to his mother's house to collect some guns and jewelry—things he knew "didn't belong in [his] mom's house"—that he had noticed in her home a couple of days before. Cory piled four or five handguns, a jewelry box, and other items onto a bedspread, put the wrapped-up pile into his truck, and drove to a vacant house that his father had given him on Graham Street. He backed the truck into the yard, took out the blanket with "the stuff" in it, and went behind the barn to bury it. Watching neighbors, however, called the police who came before Cory could bury all of "the stuff." Guns were all over the ground when the police arrived.

Meanwhile, Detective Tuttle, learning that appellant sometimes stayed at his mother's house, obtained her consent to search the house. "She said she was more than willing. She didn't want no stolen stuff around her house." In the back room, where appellant's tennis shoes were tucked by the end of the bed, police found 1) Mr. Hines's television and binoculars, and 2) an orange-handled long screwdriver, the width of which, said Detective Tuttle, matched the pry marks on Mr. Norrell's front door. Appellant's right tennis shoe matched a shoe print lifted from Mr. McCoin's house.

Appellant was charged with

1) three counts in the McCoin break-in: burglary of a habitation, theft of a firearm, and felon in possession of a firearm;

2) one count in the Hines break-in: burglary of a habitation; and

3) three counts in the Norrell break-in: burglary of a habitation, theft of a firearm, and felon in possession of a firearm.

After hearing the evidence, the trial judge found appellant guilty of all seven counts. He also entered deadly-weapon findings on all counts.

On appeal, appellant challenged all of the convictions and deadly-weapon findings on sufficiency grounds. He had some success. In the McCoin case, the court of appeals reversed the burglary and theft convictions for factual insufficiency, but affirmed the conviction for felon in possession of a firearm.⁶ In the Hines case, the court of appeals reversed the burglary conviction for factual insufficiency.⁷ But in the Norrell case, the court affirmed all three convictions.⁸ The court of appeals also found the evidence legally insufficient to support any of the deadly-weapon findings, so it deleted those findings from the four convictions it affirmed.⁹ It also declared that the State could not seek a deadly-weapon finding on retrial of any of the reversed counts. We granted review on only two points, the sufficiency finding in the Norrell case, and the court of appeals's statement, in the Hines case, that the State could not again seek a deadly-weapon finding.

II. The Norrell Burglary

A. Procedural history

In the Norrell burglary, appellant was convicted of burglary of a habitation, theft of a firearm, and felon in possession of a firearm. In affirming the legal and factual sufficiency of the burglary conviction, the court of appeals relied on the rule that "a defendant's unexplained possession of property recently stolen in a burglary permits an inference that the defendant is the one who committed the burglary."¹⁰ The court found that the evidence was sufficient to prove, beyond a reasonable doubt, that appellant burglarized Mr. Norrell's home based on the evidence of his personal, recent, and unexplained possession of Mr. Norrell's coins. Having found the evidence sufficient to sustain appellant's conviction for burglary, the court held it was also legally and factually sufficient to sustain his convictions for theft of a firearm (because firearms were stolen in the Norrell burglary) and felon in possession of a firearm (because appellant stipulated to his prior felony conviction and the evidence that appellant burglarized Mr. Norrell's home and stole his guns "necessarily entail[ed] that Rollerson possessed a firearm at one point."¹¹).

Appellant asked this Court to review the lower court's sufficiency analysis of all three offenses. We granted review of two: the theft of a firearm and felon in possession of a firearm. We agree, for the most part, with the court of appeals's analysis, and we agree fully with its result.

B. The law

In assessing the legal sufficiency of the evidence to support a criminal conviction under Jackson v. Virginia,¹² we consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt.¹³ But "[e]vidence, that rationally supports a verdict of guilt beyond a reasonable doubt under the Jackson v. Virginia legally sufficiency standard, can still be factually insufficient."¹⁴ Evidence is factually insufficient to support the verdict if it is clearly wrong or manifestly unjust or against the great weight and...