Hudson Ray Davis v. State ( 1993 )

Davis v. State

IN THE

TENTH COURT OF APPEALS

No. 10-92-138-CR

     HUDSON RAY DAVIS,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From the 13th District Court

Navarro County, Texas

Trial Court # 24,500

O P I N I O N

      Hudson Ray Davis was convicted by a jury of theft. See Tex. Penal Code Ann. § 31.03 (Vernon 1989 and Supp. 1993). The jury found "true" to two prior felony theft convictions and sentenced him to life imprisonment.

      Davis' sole point on appeal is that the evidence is insufficient to convict him as a party to the offense of theft. The jury charge allowed the jury to convict Davis if it found that he directly committed the theft or if it found that he was a party to the theft. The verdict form did not require the jury to specify which theory it relied on in returning its guilty verdict. Davis does not complain that the evidence is insufficient to sustain his conviction on the direct theory. Assuming without deciding that the evidence is insufficient to convict Davis of theft on the direct theory, we will review the evidence to determine the sufficiency of the evidence on the parties theory.

      Evidence will sustain a conviction if, viewing it in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). Under the Jackson standard, we do not position ourselves as a thirteenth juror in assessing the evidence; rather, we position ourselves as a final, due-process safeguard ensuring only the rationality of the factfinder. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We have only the discretion to determine if any rational trier of fact, considering the evidence admitted at trial, could have found the essential elements of the offense beyond a reasonable doubt. See Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim. App. 1991). We do not make our own myopic determination of guilt from reading the cold record. See Moreno, 755 S.W.2d at 867. We do not disregard, realign, or weigh evidence. See id. The trier of fact is the sole judge of the weight and credibility of the witnesses and may believe or disbelieve all or any part of any witness' testimony. Williams v. State, 692 S.W.2d 671, 676 (Tex. Crim. App. 1984). We do not resolve any conflict in fact or evaluate the credibility of the witnesses. See Juarez v. State, 796 S.W.2d 523, 524 (Tex. App.—San Antonio 1990, pet. ref'd).

      L.B. Pennington, a manager of a Corsicana gas station, testified that he had a Honda motorcycle for sale. The motorcycle was on display outside of the gas station on Highway 22. On September 11, 1991, Davis, a "young lady," and a "young man" drove into the station and asked if the motorcycle was for sale. The young man, later identified as Ronnie White, wanted to take the motorcycle for a test drive, but Pennington refused unless he was shown $850 in cash—his asking price for the motorcycle. Davis told Pennington that he had the money in the bank and that he would buy the motorcycle if the "boy" liked it. White refered to Davis as "Daddy," and he said to Pennington, "If you'll let me ride it and I like it, [D]addy will buy it for me; he has the money. He doesn't have it with him; all he has to do is go to the bank and get it." Davis and the young woman told Pennington that "they would stay there at the station while [White] rode the [motorcycle]." Pennington suggested that White drive down the road a mile and return.

      After White left on the motorcycle, Pennington went into the station. Davis and the woman followed and told him that "they were going to walk over to Circle K." Pennington looked up to see the pair in their car pulling away from the station. When he ran out to stop them, they told him "they were just going to drive over to Circle K." Davis, who was driving, became "nervous" and began backing the car away from Pennington. When a break in traffic occurred, Davis "floored" his vehicle and drove off on Highway 22. Pennington jumped in a truck and followed the car. Three miles later, after following at a high rate of speed, Pennington pulled up beside Davis and told him to pull over. He confronted Davis saying, "You all are trying to steal my motorcycle." Davis replied, "I didn't steal your motorcycle; he did." When Pennington asked Davis what his son's name was, Davis replied, "That's not my son; he just calls me ``daddy.'" Pennington flagged down a motorist to call the police. A highway patrolman stopped White on the motorcycle later in Hillsboro.

      A person is criminally responsible for the offense committed by another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Tex. Penal Code Ann. § 7.02(a)(2) (Vernon 1974). Mere presence at the scene of a crime is insufficient to prove that a person is a party to the crime. Beardsley v. State, 738 S.W.2d 681, 685 (Tex. Crim. App. 1987). However, presence of an accused at the scene of a crime is a circumstance tending to prove guilt, which, combined with other facts, may suffice to show that the accused was a participant. Id. In determining whether Davis is a party and bears criminal responsibility, we may look to events before, during, and after the commission of the offense. See id. at 684. Participation in an enterprise may be inferred from the circumstances and need not be shown by direct evidence. Id.

      Davis asserts that the evidence connecting him with the theft is the fact that he was present at the scene with and knew the man who apparently stole the motorcycle and that he left in his vehicle after the apparent theft. Looking at all the evidence in the light most favorable to the verdict—and looking at events before, during, and after the theft—we find the evidence sufficient to sustain his conviction under the law of parties. See id.; Matson, 819 S.W.2d at 843. Mere presence at the scene is insufficient to sustain a conviction as a party to the offense. Beardsley, 738 S.W.2d at 685. Flight alone is not sufficient to support a guilty verdict. Harris v. State, 645 S.W.2d 447, 458 (Tex. Crim. App. 1983). However, both presence and flight are circumstances from which an inference of guilt may be drawn. Id.; Beardsley, 738 S.W.2d at 685. Davis's presence at the scene, his dialogue with Pennington implying that he would pay for the motorcycle if "the boy" liked it, his deceit about walking to the Circle K, his "nervousness" when Pennington confronted him as he tried to drive away, his high-speed flight from the scene, and his statement that "I didn't steal your motorcycle; he did" could in combination lead a rational trier of fact to find that Davis intended to promote or assist White in committing the theft and that he aided White in doing so. See Matson, 819 S.W.2d at 842; Tex. Penal Code Ann. § 7.02(a)(2).

      We overrule the point and affirm the judgment.

                                                                                 BILL VANCE

                                                                                 Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed April 7, 1993

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