Steve Darrold Hill v. State ( 1999 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-99-00151-CR

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Steve Darrold Hill, Appellant

v.

The State of Texas, Appellee

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FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT NO. 0985412, HONORABLE CHARLES CAMPBELL, JUDGE PRESIDING

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Appellant Steve Darrold Hill appeals from his conviction for theft of a nail gun from a pawn shop. See Tex. Penal Code Ann. § 31.03(e)(4)(D) (West 1994). Hill confessed to stealing the nail gun at the sentencing hearing and admitted two prior convictions for theft. Nevertheless, he appeals his conviction on two grounds claiming (1) that the trial court improperly gave a jury charge on the law of parties, and (2) that the trial court failed to consider him eligible for probation. We will affirm the conviction and sentence.  

FACTS

Steve Hill ("Steve") and his brother Oscar Hill ("Oscar") entered Doc Holliday's Pawn Shop on June 8, 1998, just before closing time. Oscar approached Marcos Gonzales, an employee at the store, to discuss a loan while Steve walked around the store looking at equipment. After a short conversation with Gonzales, Oscar walked back to where his brother was standing near the nail guns at the rear of the store.

Store manager Kenneth Smith testified that the nail guns were tied down with hard plastic ties to prevent theft, and the ties could be cut with wire cutters or nail clippers. Smith kept a videotape of store activities by using two surveillance cameras. That day's tape shows the two brothers talking in front of the nail gun display while Gonzales was writing at the front counter. Steve knelt down next to the nail gun while Oscar remained standing. After a few moments, Steve stood up and Oscar returned to the front counter to talk with Gonzales. Gonzales testified that he looked down for a minute while the two were talking. When he looked up, he glimpsed Steve rushing out the door. He did not see if Steve had anything in his hands because Oscar was between Gonzales and the door. Oscar told Gonzales, "He just needs to go outside real quick."

Two days later, Smith noticed that a nail gun was missing. There was no record of its sale. He reviewed the videotape to find out when the nail gun disappeared; he identified Steve and Oscar Hill in the videotape, standing in front of the nail guns. Smith testified before the jury that the tape showed Steve picking up a nail gun from the bottom shelf and quickly leaving the picture. Steve stipulated that he was the person on the videotape.

Steve's friend, Luke DeFelice, testified that he saw the two brothers at Doc Holliday's on the evening in question. DeFelice testified that Steve stepped out of the store and asked him to wait. DeFelice also testified that Steve did not have anything in his hands when he stepped out of the pawn shop the first time, when he came out several minutes later, or when he got into DeFelice's car to get a ride home. Oscar's daughter, Angel Hill, testified that she went with her father and uncle to Doc Holliday's and that Steve left the store with nothing in his hands.

The state introduced uncontroverted evidence that Steve had previously been convicted of possession of narcotics and two counts of theft. At sentencing, Steve admitted stealing the nail gun, and Steve's attorney agreed that he was not eligible for probation.

DISCUSSION

Steve disputes his sentence in his second issue on appeal, claiming that the trial court erred by not considering probation. However, since Steve's counsel agreed with the court that his client was not eligible for probation, Steve has waived his right to appellate review on this issue. See Tex. R. App. P. 33.1. We overrule Steve's second issue.

In his first issue on appeal, Steve argues that the trial court erred in granting a jury charge instruction on the law of parties. See Tex. Penal Code Ann. § 7.01 (West 1994). We first consider whether Steve's claim is waived by his admission of guilt under the DeGarmo doctrine. The defendant waives any right to appeal at the guilt stage of trial if he testifies at punishment and admits guilt. See DeGarmo v. State, 691 S.W.2d 657, 661 (Tex. Crim. App.), cert. denied, 474 U.S. 973 (1985). However, Leday restricted DeGarmo to issues that do not involve "due process and those individual rights that are fundamental to our quality of life." Leday v. State, 983 S.W.2d 713, 724-25 (Tex. Crim. App. 1998). While jury charge error does not fit nicely within the laundry list provided by Leday, it may at times be a right valued above the truth-seeking function of the trial. See Gutierrez v. State, No. 03-98-00347-CR, slip op. at 6 (Tex. App.--Austin June 4, 1999, pet. filed). Review of jury-charge error in Texas under Texas Code of Criminal Procedure article 36.19 falls within two categories: "fundamental error" and "ordinary reversible error." Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). Gutierrez reviewed case law concerning fundamental error, concluding that where jury charge error constitutes fundamental error the DeGarmo doctrine cannot be invoked to estop an appellant from raising the error on appeal. See Gutierrez, slip op. at 7. Under Gutierrrez, Steve's jury charge complaint is not waived by his confession if the charge error was fundamental. See id.

To determine Steve's complaint regarding the jury charge on the law of parties, we must first determine whether there was error and then inquire if that error was fundamental. See Gutierrez, slip op. at 8. A law-of-parties instruction may be submitted to the jury "if the evidence introduced upon the trial of the cause shows, or raises an issue, that the conduct of the defendant then upon trial is not sufficient, in and of itself, to sustain a conviction." McCuin v. State, 505 S.W.2d 827, 830 (Tex. Crim. App. 1974). While the presence of an accused at the scene of an offense is not alone sufficient to support a conviction, it is a circumstance tending to prove guilt which, combined with other facts, may suffice to show that the accused was a participant. See Beardsley v. State, 738 S.W.2d 681, 685 (Tex. Crim. App. 1987). Since Steve admits that he and Oscar were both at Doc Holliday's, the law-of-parties instruction is justified here if other facts show Steve was a participant in the crime.

Numerous other facts support submission of a law-of-parties instruction. In determining whether an accused is party to an offense and bears criminal responsibility, the court may look to events before, during, and after the commission of the crime. See id. at 684. Participation in an enterprise may be inferred from circumstances and need not be shown by direct evidence. See id. The videotape shows that the brothers walked together to the display of nail guns and leaned down close to the nail gun that later disappeared. The store employee testified that when Steve suddenly rushed out of the store Oscar explained, "He just needs to go outside real quick." Gonzales further testified that he could not see Steve because Oscar was in the way. Each of these facts constitutes circumstantial evidence that Steve, if did not personally steal the nail gun aided Oscar in the theft of. Steve's presence at Doc Holliday's, Gonzales' testimony, and the videotape of Steve and Oscar's behavior in front of the nail guns justify the law-of-parties instruction.

Steve relies on Montes v. State to assert that the law-of-parties instruction should not have been given here. See 724 S.W.2d 54, 56 (Tex. Crim. App. 1987). However, the Montes court held that the law of parties did not apply on totally different facts. The court reasoned that the law of parties instruction should not have been given because the record did not present any evidence that anyone besides the appellant was involved in the improper use of checks. See id. at 56. Oscar and Steve's presence together and concerted efforts in the store are some evidence that the law of parties instruction should have been given here.

Steve's factual assertions that the law-of-parties instruction should not have been given are also not supported. Under the McCuin test, a law-of-parties instruction may be given if the evidence raises an issue to which the law of parties may be relevant. See McCuin v. State, 505 S.W.2d 827, 830 (Tex. Crim. App. 1974). Steve brought two witnesses, Luke DeFelice and Angel Hill, to testify that he did not actually walk out the door of the shop with the nail gun. The obvious inference from such testimony is that someone else took the nail gun from the store after Steve removed it from the area where it was on display. Steve then argues there was no credible evidence to show that either Oscar or anyone else removed the nail gun at his direction. He claims such inferences are either erroneous or not supported by objective evidence, but makes no further argument as to why these inferences are incorrect. Steve cannot bring forth witnesses to call into question whether he completed the theft and then prevent a jury charge on the logical conclusion that he participated in part of the crime. The law-of-parties instruction was justified. We find no error and overrule Steve's first issue.

CONCLUSION

We conclude that Steve Hill waived his right to appeal his sentence and the trial court correctly instructed the jury on the law of parties. Oscar's presence in the pawn shop and the introduction of testimony showing that someone other than Steve may have removed the nail gun from the store raised the issue of whether Steve Hill was a party to the offense. We affirm the trial-court judgment.

Bea Ann Smith, Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel

Affirmed

Filed: November 12, 1999

Do Not Publish

.W.2d 827, 830 (Tex. Crim. App. 1974). While the presence of an accused at the scene of an offense is not alone sufficient to support a conviction, it is a circumstance tending to prove guilt which, combined with other facts, may suffice to show that the accused was a participant. See Beardsley v. State, 738 S.W.2d 681, 685 (Tex. Crim. App. 1987). Since Steve admits that he and Oscar were both at Doc Holliday's, the law-of-parties instruction is justified here if other facts show Steve was a participant in the crime.

Numerous other facts support submission of a law-of-parties instruction. In determining whether an accused is party to an offense and bears criminal responsibility, the court may look to events before, during, and after the commission of the crime. See id. at 684. Participation in an enterprise may be inferred from circumstances and need not be shown by direct evidence. See id. The videotape shows that the brothers walked together to the display of nail guns and leaned down close to the nail gun that later disappeared. The store employee testified that when Steve suddenly rushed out of the store Oscar explained, "He just needs to go outside real quick." Gonzales further testified that he could not see Steve because Oscar was in the way. Each of these facts constitutes circumstantial evidence that Steve, if did not personally steal the nail gun aided Oscar in the theft of. Steve's presence at Doc Holliday's, Gonzales' testimony, and the videotape of Steve and Oscar's behavior in front of the nail guns justify the law-of-parties instruction.

Steve relies on Montes v. State to assert that the law-of-parties instruction should not have been given here. See 724 S.W.2d 54, 56 (Tex. Crim.