Walker v. State

• Decision Date: 18 September 1991
• Docket Number: No. 896-89,896-89
• Citation: 823 S.W.2d 247
• Parties: Daniel Wayne WALKER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 247

823 S.W.2d 247

Daniel Wayne WALKER, Appellant, v. The STATE of Texas, Appellee.

No. 896-89.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 18, 1991.

Rehearing Denied Oct. 23, 1991.

Certiorari Denied March 23, 1992.

See 112 S.Ct. 1481.

Daniel Wayne Walker, pro se.

Jack Skeen, Jr., Dist. Atty., Michael J. Sandlin, Asst. Dist. Atty., Tyler, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

Appellant was convicted by a jury of the offense of burglary of a building. The trial court assessed punishment at forty years confinement. The Court of Appeals reversed the conviction and ordered an acquittal. Walker v. State, 823 S.W.2d 302 (Tex.App.--Tyler, 1989). We granted review to determine whether the evidence was sufficient to sustain the conviction in light of the jury charge. We will affirm the judgment of the Court of Appeals.

The indictment in this case alleged appellant committed this offense as a primary actor. The court's charge included an abstract instruction on the law of parties. The application paragraph tracked the language of the indictment but failed to include any reference to the immediately preceding general parties instruction.

The Court of Appeals found that the charge allowed the jury to convict only if they found appellant guilty by his own conduct. The Court of Appeals reviewed the evidence to determine whether any rational trier of fact could have found appellant guilty beyond a reasonable doubt as a result of appellant's own conduct. Finding there was no evidence that appellant entered the building the Court of Appeals reversed and ordered an acquittal.

In Jones v. State, 815 S.W.2d 667 (Tex.Cr.App.1991) (reh'g denied this day), we held that in order for the jury to be authorized to convict one as a party, the law of parties must be included in the application paragraph of the charge. Jones, 815 S.W.2d at 669. Since the law of parties was not included in the application paragraph in this cause, we must determine whether the evidence is sufficient to find appellant guilty by his own conduct.

The State's case was based entirely on circumstantial evidence. Police responded to a burglar alarm at a K-Mart store shortly after 1:30 a.m. There were no eyewitnesses and the burglars fled before police could arrive. The store had been entered by shattering a glass door connecting the fenced-in garden center area to the enclosed part of the building. Two televisions were recovered from this garden area. Police found two sets of footprints coming from the store which led them to four shotguns in a grassy area adjacent to the store.

The weapons had been taken by breaking a glass case. One of the burglars cut himself on the glass and bled considerably in and outside the store. Blood was found on the shotguns, on and near the glass case, and outside the store. No blood was found on the televisions. This, combined with the two sets of footprints, led police to believe that at least two people were involved. Samples of the blood were taken. The televisions were dusted for fingerprints. No usable fingerprints were found on the shotguns or inside the store. No blood test comparison was sought for appellant since the officers believed it was the other burglar who cut himself. An anonymous tip led police to suspect appellant. Some of the prints found were made by appellant's right palm consistent with carrying the television, as opposed to merely handling it as it sat on a sixty-six inch high shelf. Other prints found on the television were not identified.

Appellant was arrested seven weeks later. At the time of his apprehension appellant gave the officer a false name. Officers informed appellant only that the charge was burglary and gave him no details. While appellant was in the booking area of the jail, he spoke with an unidentified individual he knew. One officer overheard appellant say, "They got me in here for the burglary of K-Mart up north but I didn't do it."

Viewing the evidence in the light most favorable to the verdict, we find the State proved at most that appellant picked up one of the televisions. None of the State's evidence showed appellant actually entered the building himself, although it can certainly be inferred from the evidence that he did so. When approached by police, appellant lied about his identity and exhibited some guilty knowledge about the offense while at the jail. This allows the inference that appellant knew about the burglary and was somehow involved.

One reasonable possibility is that appellant entered the building and carried the television to the garden area. Another reasonable hypothesis is that appellant waited outside the building and carried the television handed to him by the one who entered the store. This is entirely consistent with the statement made by appellant at the jail, the palm print evidence and the location of the televisions.

The evidence must be reviewed to determine whether it supports the finding that appellant was guilty by virtue of his own conduct. Since this is a circumstantial evidence case, we must determine whether the evidence excludes every reasonable hypothesis other than the guilt of appellant by his own conduct. Carlsen v. State, 654 S.W.2d 444 (Tex.Cr.App.1983). The evidence does not exclude the reasonable hypothesis that appellant was guilty only as a party. Therefore, the evidence is insufficient to support the conviction when viewed in light of the charge given. Accordingly, the judgment of the Court of Appeals is affirmed. ¹

BENAVIDES, J., concurs in the result.

CLINTON, Judge, concurring.

"In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury." Article I, § 10, Constitution of Texas. "No citizen of this State shall be deprived of life, liberty, property, privileges or immunities ... except by the due course of the law of the land." Id., § 19. ¹

"[T]he jury is the exclusive judge of the facts, but it is bound to receive the law from the court and be governed thereby." Article 36.13, V.A.C.C.P. Therefore, in every case tried to a jury, before the argument begins the trial judge shall "deliver to the jury ... a written charge distinctly setting forth the law applicable to the case [.]" Article 36.14, V.A.C.C.P.

Such was the essential function of a jury charge at common law, and still is under the statutes. A fundamental principle of our jurisprudence is that only material factual issues tendered by pleadings, primarily the charging instrument, and raised by evidence are submitted to the jury. ² In some cases, of course, material issues may be raised by evidence that need not be alleged, yet should be properly conveyed to the jury for its determination.

Lately, though, there seems to be a tendency to include helter-skelter all sorts of abstract definitions and broad propositions as statutorily prescribed without first determining whether they are germane, in whole or in part, to the pleadings and conformable to the evidence, and then to fail to apply distinctly just the material matters of law to the facts of the case. Well illustrative are problems and proposed solutions spawned in the instant cause pertaining to the law of parties, as well as in decisions relied on in separate opinions and cases they cite and discuss involving other matters of law.

As permitted by V.T.C.A. Penal Code, § 7.01(c), the indictment charged appellant committed the offense of burglary of a building "without alleging the facts which make the defendant a party to the offense and criminally responsible for the conduct of another." And, "If the evidence supports a charge on the law of parties, as it does here, the court may charge on the law of parties even though there is no such allegation in the indictment." Pitts v. State, 569 S.W.2d 898, at 900 (Tex.Cr.App.1978); see Romo v. State, 568 S.W.2d 298 (Tex.Cr.App.1977). ³

The majority resolves the instant issue basically on the strength of Jones v. State, 815 S.W.2d 667 (Tex.Cr.App.1991), in that the law of parties was not included in the application paragraph of the charge. Judge Miller views the situation of the charge "factually different" from Jones v. State, supra, et al. Miller, J., dissenting, at 255. ⁴ Judge White dissents for the reasons stated in his dissenting opinion in Jones; Presiding Judge McCormick dissents to affirming an order of acquittal.

The majority in Jones v. State, supra, relies, inter alia, on the opinions in Garrett v. State, 749 S.W.2d 784 (Tex.Cr.App.1986), in deciding the parties charge issue. At 668-669. It concludes as a matter of law that "a charge which fails to apply a theory of law to the facts of the case is insufficient to authorize conviction on that theory even when the theory of law is abstractly defined in the charge." Id., 815 S.W.2d at 670. Accordingly, the majority finds the evidence insufficient to support a verdict finding appellant guilty as the principal actor (i.e., as a party to the offense committed by his own conduct, V.T.C.A. Penal Code, § 7.01(a)) Id., at 670-671. Judge Miller concurs, believing the factual situation indistinguishable from Garrett v. State, supra. ⁵

Presiding Judge McCormick dissents primarily because he believes recent opinions, e.g., Garrett v. State, supra, and Nickerson v. State, 782 S.W.2d 887 (Tex.Cr.App.1990), have "reviewed only the application section of the charge to determine whether the evidence in each case is sufficient," Dissenting Opinion, at 674, while opinions in other cases have "looked to other parts of the charge," thus producing "necessarily perplexing" results, id., at 675. His solution is to abandon the proposition that courts must determine sufficiency of evidence to support a verdict of guilt from the jury charge, in favor of a notion that measures sufficiency "against the State's theory of the case," id., at 676, by "presupposing a...