Jeremy Deashun Brown Jr. v. State ( 2018 )


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  •                                  IN THE
    TENTH COURT OF APPEALS
    No. 10-17-00104-CR
    JEREMY DEASHUN BROWN JR.,
    Appellant
    v.
    THE STATE OF TEXAS,
    Appellee
    From the 82nd District Court
    Falls County, Texas
    Trial Court No. 9569
    MEMORANDUM OPINION
    In one issue, appellant, Jeremy Brown Jr., challenges the sufficiency of the evidence
    supporting his conviction for theft of cattle in an amount less than $100,000, a third-
    degree felony. See TEX. PENAL CODE ANN. § 31.03(e)(5)(A) (West Supp. 2017). Because we
    conclude that the evidence is insufficient to support appellant’s conviction, we reverse
    the judgment of the trial court and render a judgment of acquittal.
    I.      BACKGROUND
    Here, appellant was charged by indictment with the offense of theft of cattle in an
    amount less than $100,000. See 
    id. Appellant pleaded
    “not guilty,” and this matter
    proceeded to trial. The jury ultimately found appellant guilty of the charged offense. The
    trial court assessed punishment at ten years’ incarceration in the Institutional Division of
    the Texas Department of Criminal Justice, suspended the sentence, and placed appellant
    on community supervision for ten years with a $2,500 fine. The trial court also certified
    appellant’s right of appeal, and this appeal followed.
    II.     SUFFICIENCY OF THE EVIDENCE
    In his sole issue on appeal, appellant contends that the evidence supporting his
    conviction is insufficient. Specifically, appellant argues that the record shows that the
    offense of theft of cattle was completed hours before he was purportedly involved; as a
    result, the record does not establish that he was a party to the charged offense.
    A.     Applicable Law
    In Lucio v. State, 
    351 S.W.3d 878
    , 894 (Tex. Crim. App. 2011), the Texas Court of
    Criminal Appeals expressed our standard of review of a sufficiency issue as follows:
    In determining whether the evidence is legally sufficient to support a
    conviction, a reviewing court must consider all of the evidence in the light
    most favorable to the verdict and determine whether, based on that
    evidence and reasonable inferences therefrom, a rational fact finder 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
    , 
    61 L. Ed. 2d 560
    (1979);
    Hooper v. State, 
    214 S.W.3d 9
    , 13 (Tex. Crim. App. 2007). This “familiar
    standard gives full play to the responsibility of the trier of fact fairly to
    Brown v. State                                                                               Page 2
    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
    . “Each fact need not point directly and independently to the guilt of
    the appellant, as long as the cumulative force of all the incriminating
    circumstances is sufficient to support the conviction.” 
    Hooper, 214 S.W.3d at 13
    .
    
    Id. Our review
    of "all of the evidence" includes evidence that was properly and
    improperly admitted. Conner v. State, 
    67 S.W.3d 192
    , 197 (Tex. Crim. App. 2001). And if
    the record supports conflicting inferences, we must presume that the factfinder resolved
    the conflicts in favor of the prosecution and therefore defer to that determination. 
    Jackson, 443 U.S. at 326
    , 99 S. Ct. at 2793. Furthermore, direct and circumstantial evidence are
    treated equally:    “Circumstantial evidence is as probative as direct evidence in
    establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to
    establish guilt.” 
    Hooper, 214 S.W.3d at 13
    . Finally, it is well established that the factfinder
    is entitled to judge the credibility of the witnesses and can choose to believe all, some, or
    none of the testimony presented by the parties. Chambers v. State, 
    805 S.W.2d 459
    , 461
    (Tex. Crim. App. 1991).
    The sufficiency of the evidence is measured by reference to the elements of the
    offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 
    953 S.W.2d 234
    , 240 (Tex. Crim. App. 1997). A hypothetically-correct jury charge does four
    things: (1) accurately sets out the law; (2) is authorized by the indictment; (3) does not
    unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s
    Brown v. State                                                                           Page 3
    theories of liability; and (4) adequately describes the particular offense for which the
    defendant was tried. 
    Id. To prove
    the offense of theft, the State must prove beyond a reasonable doubt that
    a person “unlawfully appropriate[d] property with the intent to deprive the owner of the
    property.” TEX. PENAL CODE ANN. § 31.03(a); see Torres v. State, 
    466 S.W.3d 329
    , 334 (Tex.
    App.—Houston [14th Dist.] 2015, no pet.). “An appropriation of property is unlawful if
    it is without the owner’s effective consent.” 
    Torres, 466 S.W.3d at 334
    (citing TEX. PENAL
    CODE ANN. § 31.03(b)(1)). Moreover, “[a]ppropriate” means “to acquire or otherwise
    exercise control over property other than real property.” TEX. PENAL CODE ANN. §
    31.01(4)(B) (West Supp. 2018); see Hawkins v. State, 
    214 S.W.3d 668
    , 670 (Tex. App.—Waco
    2007, no pet.).
    Here, the jury was provided an instruction on the law of parties. According to the
    law of parties, each party to an offense may be charged with the commission of the
    offense. TEX. PENAL CODE ANN. § 7.01(b) (West 2011). A person is a party to an offense 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.” 
    Id. § 7.02(a)(2)
    (West 2011). When a party is not the “primary actor,” the State must prove
    conduct constituting an offense plus an act by the defendant along with the intent to
    promote or assist such conduct. Beier v. State, 
    687 S.W.2d 2
    , 3 (Tex. Crim. App. 1985).
    Evidence may be deemed sufficient to sustain a conviction under the law of parties if the
    Brown v. State                                                                      Page 4
    evidence shows that the defendant was physically present at the commission of the
    offense and encouraged the commission of the offense either by words or other
    agreement. Miller v. State, 
    83 S.W.3d 308
    , 313-14 (Tex. App.—Austin 2002, pet. ref’d)
    (citing Urtado v. State, 
    605 S.W.2d 907
    , 911 (Tex. Crim. App. 1980); Tarpley v. State, 
    565 S.W.2d 525
    , 529 (Tex. Crim. App. 1978)). Circumstantial evidence may suffice to show
    that a person is a party to the offense. 
    Id. (citing Wygal
    v. State, 
    555 S.W.2d 465
    , 469 (Tex.
    Crim. App. 1977)).
    While mere presence at the scene, or even flight, is not enough to sustain a
    conviction, such facts may be considered in determining whether a person was a party to
    the offense. 
    Id. at 314
    (citing Valdez v. State, 
    623 S.W.2d 317
    , 321 (Tex. Crim. App. 1981)
    (op. on reh’g); Guillory v. State, 
    877 S.W.2d 71
    , 74 (Tex. App.—Houston [1st Dist.] 1994,
    pet. ref’d)). Moreover, in determining whether a person participated in an offense as a
    party, the factfinder may examine the events occurring before, during, and after the
    commission of the offense and may rely on actions of the person that show an
    understanding and common design to commit the offense. See Ransom v. State, 
    920 S.W.2d 288
    , 302 (Tex. Crim. App. 1996) (op. on reh’g); Cordova v. State, 
    698 S.W.2d 107
    ,
    111 (Tex. Crim. App. 1985); see also Frank v. State, 
    183 S.W.3d 63
    , 72 (Tex. App.—Fort
    Worth 2005, pet. ref’d).
    Brown v. State                                                                          Page 5
    B.      Discussion
    In the instant case, the record evidence details an attempt to steal cattle from Henry
    Kelly. Andre Houston testified that he was leaving from a rodeo in Centerville, Texas,
    on March 27, 2015. While “head[ing] back down Highway 7 to Highway 6 to go to
    Stephenville,” Andre saw “some cows on the left-hand side on County Road 245.” Andre
    pulled over and closed the gate where Kelly kept his cattle.1 Andre then called “a buddy
    of mine” to “tell him about what [he] had going on, that [he] had penned some cows up.”
    After speaking with his buddy, Andre learned that appellant’s father, Jeremy Brown Sr.,
    also known as J.D., wanted some cows. Andre later testified that when he shut the gate,
    he intended to come back and steal Kelly’s cattle so that he could sell the cattle to J.D.
    Later that night, Andre called his friend Allen “Noonie” Pickney Jr., who lived
    four houses down from Andre in Houston, Texas. According to Noonie, Andre stated
    that he needed help “with some horses.” Andre also informed Noonie that appellant’s
    father, J.D., would pick up Noonie outside his house. J.D. arrived in a black, flatbed
    pickup truck. Inside the pickup truck was J.D., appellant, and another person that
    Noonie did not recognize. The group then traveled to a Shell gas station to meet Andre.
    At the time of the meeting, Andre was driving a white Dodge 2500 pickup truck with
    1  Kelly testified that the cattle were not in a normal location when Andre closed the gate. Kelly
    also denied placing the cattle in the pen area on the date in question and noted that he left the gate open so
    the cattle could come and go because there was no water source in the area where Andre penned up the
    cattle.
    Brown v. State                                                                                         Page 6
    dually wheels. Noonie recalled seeing J.D. and appellant talking to Andre at the Shell
    gas station.
    Subsequently, the group, now in two pickup trucks, drove from the Houston area
    toward Marlin, Texas. Along the way, Andre stopped at a dance hall in Spring, Texas, so
    that he could steal a pickup truck. The guy that Noonie did not recognize drove the stolen
    pickup truck toward Marlin; however, this vehicle was pulled over by law enforcement
    due to “smoking because of the brakes.” Neither the mysterious driver nor the stolen
    pickup truck had any further involvement in this matter. Nevertheless, Andre’s group,
    which did not include appellant, later stopped at a hotel and stole a dirt bike off of
    someone’s trailer. Throughout the journey from Houston to the scene of the cattle
    rustling, Andre called J.D. numerous times to discuss plans.
    The two groups eventually met up in Marlin.           It was at this time that the
    individuals decided to steal a livestock trailer from the Marlin High School FFA. Andre
    testified that appellant and Noonie assisted in the stealing of the livestock trailer. While
    appellant and Noonie were hooking up the livestock trailer to Andre’s pickup truck,
    Andre and J.D. moved the stolen dirt bike onto J.D.’s flatbed. After doing so, the groups
    drove down Highway 7 until they reached Kelly’s property.
    Andre recalled the following regarding their arrival at Kelly’s property:
    We pull out—we pull out here to where the pen is. This is the chute. Over
    here is the access county road. This is Highway 7. I pull up here, trying to
    back the trailer up to the gate right here (indicates). Noonie gets out and
    tries to get the cows up into the smaller chute. This is a loading pen right
    Brown v. State                                                                        Page 7
    here (indicates). But I have some bigger pens, and that’s where I penned
    the cows up.
    ...
    And the trailer goes over more over this way. And I thought I was backing
    up to this. Then I pulled up and tried to do it again, go over this way, and
    that’s when I called Jeremy Brown [J.D.] and told him I need somebody to
    come and back up the trailer. And then he said he was going to send his
    son [appellant]. Then he pulls off and goes down there to turn around, and
    that’s when a Ford truck pulls up.
    Clay Little, the driver of the Ford pickup truck, stated that he was driving by the
    area to check on cattle that may have escaped the fences. Little testified that he saw a
    black, Dodge pickup truck with dirt bike on the truck’s flatbed driving slowly on the
    shoulder of Highway 7. He then saw a white, Dodge pickup truck with a Gooseneck
    Marlin High School FFA trailer hooked up to it in the ditch trying to back up. Little pulled
    up to the white, Dodge pickup truck to see what was going on; however, after seeing the
    lights from Little’s pickup truck, Andre disconnected the trailer, got into the truck, and
    sped away, leaving Noonie behind.
    Noonie ran and hid in a tree for a little while.2 Later, he walked along the highway
    until he came to a house. The homeowner allowed Noonie to make a couple of telephone
    calls. Noonie acknowledged that he called Andre, J.D., and appellant to come pick him
    2Initially, Noonie crouched behind some bushes while holding a lit flashlight. Little rolled down
    his window and shouted, “I can still see you.” Noonie then jumped the fence, ran away, and hid in a tree.
    Brown v. State                                                                                    Page 8
    up; however, law enforcement apprehended Noonie before Andre, J.D., or appellant
    could.
    Law enforcement eventually arrived and secured the scene. The abandoned
    Marlin High School FFA trailer obstructed the roadway, causing traffic to back up on
    Highway 7. J.D., appellant, and Andre, now all riding together in J.D.’s pickup truck,
    returned to the scene of the crime and drove quickly along the shoulder of the highway
    to bypass the traffic. Due to J.D.’s poor attempt at remaining inconspicuous, Little
    recognized J.D.’s pickup truck as it drove along the shoulder of the highway.
    On appeal, appellant argues that the evidence supporting his conviction for theft
    of cattle is insufficient because the theft was complete when Andre “closed the gate on
    the cattle, containing them in an area.” We agree.
    A theft is complete when all the elements have occurred. Anderson v. State, 
    322 S.W.3d 401
    , 408 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (citing Barnes v. State,
    
    824 S.W.2d 560
    , 562 (Tex. Crim. App. 1991), overruled on other grounds by Proctor v. State,
    
    967 S.W.2d 840
    , 842 (Tex. Crim. App. 1998)). As noted above, a theft occurs when (1)
    property is (2) unlawfully appropriated (3) by someone (4) with intent to deprive the
    owner of that property. TEX. PENAL CODE ANN. § 31.03. Moreover, theft is not a
    continuing offense, meaning it does not continue as long as the actor retains control of
    the stolen property. 
    Anderson, 322 S.W.3d at 408
    (citing 
    Barnes, 824 S.W.2d at 562
    ; Cupit
    v. State, 
    122 S.W.3d 243
    , 246 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d)).
    Brown v. State                                                                       Page 9
    Additionally, this Court has noted that “asportation—the act of carrying away or
    removing property—is not an element of statutory theft.” 
    Hawkins, 214 S.W.3d at 670
    .
    Here, Andre went onto Kelly’s property and closed the gate to pen up the cattle;
    at this point, Andre exercised control over and, thus, appropriated the cattle. See id.; see
    also 
    id. § 31.01(4);
    Hawkins, 214 S.W.3d at 670
    . Moreover, Kelly’s testimony that the cattle
    were not in a normal location when Andre penned them up further demonstrates the
    appropriation, although it is not necessary for the property to be removed any distance
    to constitute a taking. See Baker v. State, 
    511 S.W.2d 272
    , 272 (Tex. Crim. App. 1974)
    (“[R]emoval of the property from the premises is not necessary for commission of the
    offense of theft. Removal of the object from its customary location is sufficient to show
    such reduction of control or manual possession as is required.”); but see 
    Hawkins, 214 S.W.3d at 670
    (noting that asportation—the act of carrying away or removing property—
    is not an element of statutory theft) (citing Barnes v. State, 
    513 S.W.2d 850
    , 851 (Tex. Crim.
    App. 1974); Jarrott v. State, 
    108 Tex. Crim. 427
    , 
    1 S.W.2d 619
    , 621 (1927); Prim v. State, 
    32 Tex. 157
    , 157 (1869); Harris v. State, 
    29 Tex. Ct. App. 101
    , 
    14 S.W. 390
    , 391 (1890)).
    Additionally, Andre testified that when he closed the gate, he intended to steal, or
    otherwise deprive Kelly of, the cattle. See TEX. PENAL CODE ANN. § 31.03(a); see also
    
    Hawkins, 214 S.W.3d at 670
    . Accordingly, we conclude that Andre’s act of closing the gate
    to pen up Kelly’s cattle satisfied all of the elements of theft. See TEX. PENAL CODE ANN. §
    31.03(a). And because theft is not a continuing offense, we further conclude that the theft
    Brown v. State                                                                           Page 10
    of Kelly’s cattle was completed when Andre penned up the cattle. See 
    Barnes, 824 S.W.2d at 562
    ; Barrera v. State, 
    163 Tex. Crim. 132
    , 137, 
    289 S.W.2d 285
    , 288 (1956) (“It was
    immaterial that the cattle were removed from and returned to the owner’s pasture.
    Having placed his ear mark on all of the stolen cattle and his brand upon some of them,
    theft of the cattle was complete.”); see also 
    Anderson, 322 S.W.3d at 408
    ; 
    Cupit, 122 S.W.3d at 246
    . This is important with regard to the subsequent acts taken by appellant and others
    in the attempt to transport the stolen cattle from Kelly’s property.
    Acts committed after the offense is completed cannot make appellant a party to
    the offense. See Morrison v. State, 
    608 S.W.2d 233
    , 235 (Tex. Crim. App. 1980) (“Acts
    committed after the robbery was completed could not make appellant a party to the
    offense. The circumstances must prove some culpable act before or during the robbery.”
    (internal citation omitted)); Pesina v. State, 
    949 S.W.2d 374
    , 383 (Tex. App.—San Antonio
    1997, no pet. (“One’s acts committed after the offense is completed cannot make him a
    party to the offense. Standing alone, proof that an accused assisted the primary actor
    after the commission of the offense is insufficient, although the accused’s conduct may
    constitute the independent offense of hindering apprehension or prosecution.” (internal
    citations omitted))3; see also United States v. Figueroa-Cartagena, 
    612 F.3d 69
    , 75 (1st Cir.
    3 We also note that the Legislature eliminated the old classification of accessory after the fact and
    replaced it with section 38.05, which created a separate crime of “hindering apprehension or prosecution.”
    See TEX. PENAL CODE ANN. § 38.05 (West 2016); Navarro v. State, 
    863 S.W.2d 191
    , 201 (Tex. App.—Austin
    1993, pet. ref’d); see also Sanchez v. State, 2005 Tex. App. LEXIS 5084, at *11 (Tex. App.—Austin June 30, 2005,
    no pet.).
    Brown v. State                                                                                         Page 11
    2010), cert. denied, 
    131 S. Ct. 2930
    , 
    180 L. Ed. 2d 227
    (2011) (noting that “an individual
    who arrives on the scene after the offense conduct has ended cannot be held liable as an
    aider and abettor”). Therefore, because the unlawful appropriation of Kelly’s cattle was
    completed when Andre penned up the cattle, appellant cannot be convicted under a
    hypothetically-correct jury charge in this case, as the conviction cannot stand as being
    authorized by the indictment. See Sanchez v. State, 
    376 S.W.3d 767
    , 772 (Tex. Crim. App.
    2012); see also 
    Malik, 953 S.W.2d at 239
    .
    Accordingly, even viewing the evidence in the light most favorable to the jury’s
    verdict, we conclude that the jury could not have rationally found appellant guilty of the
    charged offense in this case; as such, we hold that the evidence is insufficient to
    demonstrate that appellant was a party to the theft of cattle. See TEX. PENAL CODE ANN.
    §§ 7.01(b), 7.02(a)(2), 31.03; 
    Morrison, 608 S.W.2d at 235
    ; 
    Barrera, 163 Tex. Crim. at 137
    , 289
    S.W.2d at 288; 
    Hawkins, 214 S.W.3d at 670
    ; 
    Pesina, 949 S.W.2d at 383
    . We therefore sustain
    appellant’s sole issue on appeal.
    III.   CONCLUSION
    If we find the evidence insufficient, as is the case here, then a judgment of acquittal
    must be rendered. See Tibbs v. Florida, 
    457 U.S. 31
    , 41, 
    102 S. Ct. 2211
    , 2218, 
    72 L. Ed. 2d 652
    (1982); see also Skillern v. State, 
    355 S.W.3d 262
    , 270 (Tex. App.—Houston [1st Dist.
    2011, pet. ref’d) (citing Roberson v. State, 
    80 S.W.3d 730
    , 742 (Tex. App.—Houston [1st
    Dist.] 2002, pet. ref’d)). Given that we have sustained appellant’s sufficiency challenge,
    Brown v. State                                                                         Page 12
    we hereby reverse the judgment of conviction and render a judgment of acquittal. See
    
    Tibbs, 457 U.S. at 41
    , 102 S. Ct. at 2218; see also 
    Skillern, 355 S.W.3d at 270
    ; 
    Roberson, 80 S.W.3d at 742
    .
    AL SCOGGINS
    Justice
    Before Chief Justice Gray,
    Justice Davis, and
    Justice Scoggins
    (Chief Justice Gray concurring with a note)*
    Reversed and rendered
    Opinion delivered and filed November 7, 2018
    Do not publish
    [CR25]
    *(Chief Justice Gray concurs in the Court’s judgment of acquittal of the offense as
    charged. A separate opinion will not issue. He notes, however, that the offense charged
    included “appropriation” only under Texas Penal Code Section 31.03(b)(1) and not
    section 31.03(b)(2). Moreover, even if the defendant had been indicted under 31.03(b)(2),
    the evidence appears to support, at best, attempted theft as the evidence to support an
    appropriation under Texas Penal Code 31.01(4) by the defendant is weak, even under the
    law of parties.)
    Brown v. State                                                                        Page 13