Timmy Jay Tamplen v. State ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00186-CR
TIMMY JAY TAMPLEN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 271ST DISTRICT COURT OF WISE COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant Timmy Jay Tamplen appeals his conviction for burglary of a
building.2 In two issues, Tamplen argues that the State failed to provide sufficient
evidence at trial that he intended to commit a theft when he admittedly entered a
building and removed scrap metal from it. We will affirm.
1
See Tex. R. App. P. 47.4.
2
See Tex. Penal Code Ann. § 30.02(a)(3) (Vernon 2003).
II. BACKGROUND
At trial, Jeffery Ward testified for the State. Ward owns land in Wise
County, Texas, near Highway 114. Ward lived on the land before a fire burned
down his house, his dad’s house, and his dad’s shop. All that was left standing
after the fire was the burned shop. Ward testified that the shop contained burned
tools and scrap metal. Ward also said that from the highway, it would appear
that no one lived on the land. Even after the fire, Ward still collected his mail
from the property, and on May 8, 2008, he went to his property to retrieve his
mail on his way to pick up his daughter from school.
When Ward first arrived on his land, he could not see that someone else
was there, but when he backed up to his mailbox, he saw the front of a red
pickup truck near the shop. Ward immediately went to confront whoever was on
his property because, by his account, no one else should have been there. Ward
encountered Tamplen and another man. The other man was standing next to the
truck, and Tamplen ―was inside the shop carrying stuff out.‖ At trial, Ward
identified Tamplen as the man who had come out of his shop carrying scrap
metal. Ward said that he confronted the two men. According to Ward, Tamplen
said that he and the other man had been hired by Mr. and Mrs. Wright to help
clean up the property and that they were intending to tear down the shop. By his
own account, Ward responded angrily and then called 9-1-1. Ward described the
location of Tamplen’s truck as being a place where you would park if you did not
want to be seen from the highway. Ward testified that although he knew who the
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Wrights were, he had never granted anyone permission to be on his property that
contained the shop. Ward said that he was in the process of selling the scrap
metal from the shop himself in an effort to raise money to rebuild his own home.
Deputy Richard Luke Campbell of the Wise County Sheriff’s office also
testified for the State. Campbell responded to Ward’s 9-1-1 call. Campbell said
that when he arrived, Ward was in his own vehicle and that Tamplen and another
man were standing near Tamplen’s truck. Ward was visibly upset. Campbell
described Tamplen’s behavior as ―constantly moving,‖ ‖twitching,‖ and ―evasive
about answering questions.‖ Much like he had explained to Ward, Tamplen told
Campbell that he had been on the property the evening before and that Mrs.
Wright had asked him to remove some items from the property. Campbell
testified specifically about Tamplen’s explanation for having been on Ward’s
property the day before: ―It didn’t make a whole lot of sense. I was trying to
figure out why he had been out there the previous evening; that’s where his
answers were evasive. He really couldn’t give an explanation for why he was out
there the day before.‖ Because of Tamplen’s story, Campbell called Mrs. Wright.
Campbell described his phone conversation with Mrs. Wright:
I basically asked her if she had given--given anybody permission to
go onto that property? She said, no. That she had seen a guy out
there the previous evening, who identified himself as Tim. And had
asked him if he knew Mr. Ward? And she believed that he did know
Mr. Ward. And she said that he hadn’t been there in a while, and
was wanting to know if Mr. Ward needed some help leveling off a
piece of the property?
...
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She explicitly said she did not give anybody permission to be out
there?
Campbell said that after speaking with Mrs. Wright, he placed Tamplen under
arrest.
The State called Sandra Kay Wright as well. Mrs. Wright testified that she
barely knew Ward. Mrs. Wright said that she had been working with a nonprofit
organization to help build homes destroyed by the same fire that had destroyed
Ward’s home. She went to Ward’s land because she needed to speak with him.
By her account, Mrs. Wright saw Tamplen on Ward’s property as she was driving
by on May 7, 2008. She testified that she had assumed that Tamplen knew
Ward or worked for him because Tamplen was on Ward’s property. According to
Mrs. Wright, Tamplen was standing near the site of Ward’s former house, so she
approached Tamplen and asked if he knew Ward. Mrs. Wright said that Tamplen
affirmatively gestured that he did know Ward. Mrs. Wright told Tamplen that she
was trying to reach Ward. During her conversation with Tamplen, Mrs. Wright
told Tamplen that she needed to speak to Ward about the nonprofit organization
preparing the foundation site for his new home. She gave Tamplen her phone
number and asked him to have Ward call her about the foundation site. Mrs.
Wright denied ever giving Tamplen permission to enter Ward’s property or to
remove anything from the shop. She testified that she had assumed that
Tamplen had Ward’s permission to be on his property because he was there
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when she arrived. Mrs. Wright also testified that Tamplen never gave her his
own phone number.
Douglas Lee Wright—another State’s witness and Mrs. Wright’s
husband—testified that the Wrights lived within two miles of Ward’s property and
that the first time he had heard of Mrs. Wright’s conversation with Tamplen was
when Campbell called his home on May 8, 2008. The Wrights’ home was also
destroyed by the fire. Mr. Wright said that he had never met Tamplen, did not
hire him to clean up Ward’s property, and had no authority from Ward to give
anyone permission to enter his property.
Tamplen testified on his own behalf. According to Tamplen, Mrs. Wright
approached him on May 7, 2008, introduced herself, and asked ―if [he] could be
out there the next day.‖ Tamplen said that he believed Mrs. Wright owned the
property and that she had employed him to clear the land. Tamplen said that
Mrs. Wright asked him to come back with a trailer so that he could haul off debris
and tear down the burned shop. Tamplen said that he gave her his ―card,‖ which
contained his telephone number. Tamplen averred that after renting a trailer, he
and his brother returned the next day to clean the property and then Ward
arrived, angry and yelling. Tamplen said that he tried to explain to Ward that
Mrs. Wright had hired him, that Ward would not listen, and that Ward called
Campbell, who arrived shortly and arrested Tamplen. The jury found Tamplen
guilty and assessed punishment at ten years’ incarceration and a $500 fine. This
appeal followed.
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III. DISCUSSION
In two points, Tamplen challenges the sufficiency of the evidence to
support his conviction. Tamplen does not dispute that he entered Ward’s
property or that he removed scrap metal from the shop and loaded it onto a truck
and trailer; Tamplen contends only that the evidence is insufficient to prove that
he intended to commit a theft. We disagree.
A. Standard of Review
Although Tamplen challenges both the legal and factual sufficiency of the
evidence to support the conclusion that he entered Ward’s shop with the intent to
steal the scrap metal found inside, the court of criminal appeals has held that
there is no meaningful distinction between the legal sufficiency standard and the
factual sufficiency standard. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.
App. 2010) (overruling Clewis v. State, 922 S.W.2d 126, 131–32 (Tex. Crim. App.
1996)). Thus, the Jackson standard, which is explained below, is the ―only
standard that a reviewing court should apply in determining whether the evidence
is sufficient to support each element of a criminal offense that the State is
required to prove beyond a reasonable doubt.‖ Id. Accordingly, we will apply this
same standard of review to both of Tamplen’s sufficiency complaints.
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the
prosecution to determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
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443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007).
This standard gives full play to the responsibility of the trier of fact to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct.
at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the sole judge of the
weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04
(Vernon 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008),
cert. denied, 129 S. Ct. 2075 (2009). Thus, when performing an evidentiary
sufficiency review, we may not re-evaluate the weight and credibility of the
evidence and substitute our judgment for that of the factfinder. Williams v. State,
235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Instead, we Adetermine whether
the necessary inferences are reasonable based upon the combined and
cumulative force of all the evidence when viewed in the light most favorable to
the verdict.@ Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We
must presume that the factfinder resolved any conflicting inferences in favor of
the prosecution and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct.
at 2793; Clayton, 235 S.W.3d at 778.
The sufficiency of the evidence should be measured by the elements of the
offense as defined by the hypothetically correct jury charge for the case, not the
charge actually given. Hardy v. State, 281 S.W.3d 414, 421 (Tex. Crim. App.
2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a
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charge is one that accurately sets out the law, is authorized by the indictment,
does not unnecessarily restrict the State=s theories of liability, and adequately
describes the particular offense for which the defendant was tried. Villarreal v.
State, 286 S.W.3d 321, 327 (Tex. Crim. App.), cert. denied, 130 S. Ct. 515
(2009); Malik, 953 S.W.2d at 240. However, we may not affirm a conviction
based on legal or factual grounds that were not submitted to the jury. Malik, 953
S.W.2d at 238 n.3. The law as authorized by the indictment means the statutory
elements of the charged offense as modified by the factual details and legal
theories contained in the charging instrument. See Curry v. State, 30 S.W.3d
394, 404–05 (Tex. Crim. App. 2000).
B. Intent to Commit a Theft
It is well settled in this state that the question of the intent with which a
person unlawfully enters a building is a fact question for the jury to be drawn from
the surrounding circumstances. Moreno v. State, 702 S.W.2d 636, 641 (Tex.
Crim. App. 1986); Stearn v. State, 571 S.W.2d 177, 177 (Tex. Crim. App. [Panel
Op.] 1978) (holding evidence of intent to commit theft sufficient when defendant
was found in residence’s kitchen and immediately fled, even though nothing in
house had been disturbed). That is, the jury is exclusively empowered to
determine the issue of intent, and the events of a burglary may imply the intent
with which the burglar entered the property at issue. Moreno, 702 S.W.2d at
641; Joseph v. State, 679 S.W.2d 728, 730 (Tex. App.—Houston [1st Dist.] 1984,
no pet.).
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In this case, when considering the evidence in the light most favorable to
the jury’s verdict, the record demonstrates that Tamplen did not have Ward’s
permission to be on his property. Mrs. Wright, the person whom Tamplen claims
gave him permission to be on Ward’s property, testified that she did not give him
permission to be on the property and that Tamplen falsely represented to her that
he knew Ward the day before Ward discovered Tamplen on the property. She
also testified, contrary to Tamplen, that he had not given her his contact
information. The evidence also shows that Tamplen parked his truck and trailer
in a place consistent with a person who was trying to keep his presence on the
property hidden. Ward witnessed Tamplen loading Ward’s property on
Tamplen’s trailer and truck. Moreover, Tamplen admitted entering Ward’s
property and loading the scrap metal. And Campbell testified that Tamplen could
not explain why he was on Ward’s property the day before.
We conclude and hold that a rational factfinder could have found that
Tamplen intended to commit the theft of removing scrap metal from the shop on
Ward’s property and that a rational factfinder was free to disbelieve Tamplen’s
story that he believed that he had been hired to remove the property from the
shop. See James v. State, 48 S.W.3d 482, 487 (Tex. App.—Houston [14th Dist.]
2001, no pet.) (holding that whether a defendant’s explanation regarding his
possession of stolen property is reasonable or false is an issue to be decided by
the factfinder); see also Roane v. State, 959 S.W.2d 387, 389 (Tex. App.—
Houston [14th Dist.] 1998, pet. ref’d) (reasoning that a jury is empowered to
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determine the issue of intent in prosecution for attempted burglary of habitation).
Thus, we overrule both of Tamplen’s issues.
IV. CONCLUSION
Having overruled both of Tamplen’s issues, we affirm the trial court’s
judgment.
BILL MEIER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: April 28, 2011
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