Weller v. State, 09-87-214-CR
| Decision Date | 11 January 1989 |
| Docket Number | No. 09-87-214-CR,09-87-214-CR |
| Citation | 764 S.W.2d 582 |
| Parties | Donald Ray WELLER, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Appellant was charged by separate indictments with burglary of a motor vehicle and aggravated robbery. Each indictment also alleged at least two prior convictions. A companion, Billy Conrad Alston, was also charged in separate indictments with the same offenses, and each indictment also alleged at least two prior convictions. By agreement, the four cases were all tried before the same jury. The jury found the defendants "not guilty" of the aggravated robbery, but "guilty" of burglary of a motor vehicle. The court found the enhancement portions of each indictment to be "true" and assessed each defendant's punishment at thirty years' confinement in the Texas Department of Corrections. Appellant alleges four points of error.
The first two points of error allege the evidence is insufficient to support a conviction for burglary of a vehicle because "appellant introduced evidence showing a reasonable hypothesis of innocence" and "the evidence shows that the burglary was completed before the appellant did any act to aid, assist, encourage, or attempted to aid ... in the commission of the offense."
The complainant, Ruth Cargill, testified that on the evening of August 24, 1986, she drove her 1979 Datson station wagon to a location on the Trinity River in Liberty County. She joined some friends for a party. Her friends left and she was alone for a short time. Then appellant and three companions, Eddie Hartless, Eugene Stevens and Billy Conrade Alston, arrived. Shortly after their arrival, Billy Alston began making advances toward Ms. Cargill. Ms. Cargill resisted, but Alston persisted. During the episode, all four men took beer from a cooler which had been left with Ms. Cargill. As the evening progressed, the men would periodically leave the site, but only two at a time. At one point, appellant and Alston left and appellant returned with a gun. The men would huddle and leave, but each time, two would remain. At one point, Ms. Cargill became aware that Hartless had obtained the keys to her car and refused to return them. During the last time when appellant and Alston were gone, the other two attempted to disrobe Ms. Cargill and threatened to sexually assault her. Upon their return, Alston ordered Stevens and Hartless to stop and stated, "We have what we want." The men left the river area between 10:30 and 11:00 p.m. Subsequently, Ms. Cargill discovered her vehicle had been burglarized and notified the sheriff's department.
At approximately 11:40 p.m., a City of Dayton police officer noticed a pickup truck which made a left turn without signalling. There were three people in the cab of the truck and one person in the bed. The officer stopped the truck and asked appellant, the driver, for his driver's license. Appellant could not produce a valid driver's license and was arrested for that offense. Alston then got out of the cab of the truck, and the officer arrested him for being intoxicated. By this time, other officers had arrived to assist and began to inventory the pickup prior to its impoundment. They found a sawed-off rifle in a cooler in the bed. Upon discovering the sawed-off rifle, the officers arrested Hartless, who was in the cab and Stevens who was in the bed of the truck. The first officer testified that at the time he stopped the pickup truck, he had no knowledge of the alleged burglary of Ms. Cargill's vehicle. After the four men were arrested, the items from Ms. Cargill's station wagon were discovered in the bed of the pickup. The items were identified by Ms. Cargill later that evening and the next day. At the time of their arrests, none of the individuals gave any explanation concerning the property. At trial, Eugene Stevens testified that he alone burglarized the station wagon and the others knew nothing about it. He also denied any harassment or intimidation of Ms. Cargill, alleging it was Ms. Cargill who was making physical advances toward the men. Gary Coward, a relative of Stevens, testified he helped Stevens burglarize the vehicle. Neither appellant nor Alston testified.
The standard for reviewing both direct and circumstantial evidence cases is to view the evidence in a light most favorable to the verdict to determine whether any rational trier of fact could find all the essential elements of the crime beyond a reasonable doubt. Jackson v. State, 672 S.W.2d 801, 803 (Tex.Crim.App.1984). Mere presence at the scene of the offense will not make one a party. It is, however, a circumstance tending to prove that a person is a party and, taken with other facts, may be sufficient to show that an accused was a participant. Medellin v. State, 617 S.W.2d 229, 231 (Tex.Crim.App.1981). Participation in a criminal enterprise may be inferred from the circumstances. Freeman v. State, 654 S.W.2d 450, 454 (Tex.Crim.App.1983). Furthermore, one may look to events before, during and after the commission of an offense to determine whether an individual is a party to that offense. Phelps v. State, 730 S.W.2d 198, 200 (Tex.App.--San Antonio 1987, no pet.). In determining whether one participated as a party, reliance may be placed on actions which show an understanding and common design to do a certain act. Gutierrez v. State, 628 S.W.2d 57, 67 (Tex.Crim.App.1982) (on rehearing).
The jury was not bound to accept the explanation offered by Stevens as to how the vehicle was burglarized and the stolen property got into the pickup truck. Jackson, 672 S.W.2d at 804. They certainly were entitled to consider Stevens' past criminal record and his relationship to the defendants in evaluating his credibility. Durant v. State, 688 S.W.2d 265, 267 (Tex.App.--Fort Worth 1985, pet ref'd). We find the evidence sufficient to sustain appellant's conviction as a party. See Markham v. State, 751 S.W.2d 190 (Tex.Crim.App.1988). Points of error one and two are overruled.
The next point of error complains the trial court erred in admitting the evidence concerning the sexual assault and threats made by Hartless and Stevens against Ms. Cargill. We disagree. The defendants were also being tried for aggravated robbery. The state was entitled to put on evidence of all the events that occurred at the river that evening in an attempt to prove the elements of that offense. This point is overruled.
The final point of error alleges the court erred in overruling the motion to suppress the fruits of the stop and search of the vehicle. Appellant's argument focuses on the items taken from Ms. Cargill. The officer testified he stopped the pickup truck for a traffic violation and arrested appellant for operating a vehicle without a valid driver's license. This was done without any knowledge of the incident involving Ms. Cargill. The items were found as a result of an inventory of the pickup prior to impoundment. This was proper. United States v. Orozco, 715 F.2d 158, 161 (5th Cir.1983); see also Robertson v. State, 541 S.W.2d 608 (Tex.Crim.App.1976), cert. denied, 429 U.S. 1109, 97 S.Ct. 1145, 5 L.Ed.2d 563 (1977). Point of error number four is overruled. The judgment is affirmed.
AFFIRMED.
The Appellant, Donald Ray Weller, was indicted for the offense of burglary of a vehicle; he was also charged with aggravated robbery allegedly occurring on the same day. The Appellant contends that the district court committed reversible error in failing to suppress the fruits of a stop and inventory search of a truck. Appellant concedes that the complainant, who was a 59 year old woman, discovered that the battery was missing from her car, a 1979 Datsun. Also missing from her Datsun were certain tire tools, jumper cables, and a second beverage cooler. In the late evening of August 24, 1986, an officer, with the Dayton Police Department, stopped a green truck for a traffic violation. Appellant Weller was driving the truck. Appellant concedes that there were riders or passengers in the cab and in the truck bed of the green truck. In the truck bed, the Dayton police officer found the complainant's battery, jumper cables and cooler.
The Appellant was arrested for driving without a driver's license. The Appellant's brief admits:
Most of the above-described stolen property of the complainant was discovered in plain view in the bed of the truck which Weller was driving. Prior to stopping the truck, the Dayton police officer actually observed four persons in the truck, three riders being in the passenger compartment and one rider being in the bed. The officer noted the license plate number and earlier in the evening of August 24, 1986, the same officer had received information to be on the lookout for a truck bearing that identical license plate number.
The Dayton policeman was able to identify the driver of the truck as Donald Ray Weller; the policeman also correctly determined that Weller possessed no valid driver's license. At that time the Appellant was arrested. Two additional officers arrived as back-up personnel. The items of property in the bed of the truck were open to the view of Weller as well as the peace officers. Weller's co-defendant, Billy Conrade Alston, had exited from the passenger compartment. The Dayton policemen observed Alston's behavior and, formed a firm opinion that Alston was intoxicated. Then Alston was arrested. A long gun, a sawed-off rifle, was discovered in the bed; the other passengers were arrested.
Officer Britt Hall then inspected the passenger compartment and also the bed of the truck for the purposes of making an inventory prior to having the vehicle impounded by P & B...
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