Joe Frank Horace, Sr. v. State ( 2009 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-08-00054-CR _____________________

JOE FRANK HORACE, SR., Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause No. 95770

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MEMORANDUM OPINION

A jury found Joe Frank Horace, Sr. ⁽¹⁾ guilty of burglary of a habitation, and the trial court sentenced Horace, a repeat felony offender, to eighty-eight years of confinement in the Texas Department of Criminal Justice Institutional Division. See Tex. Pen. Code Ann. § 30.02(a)(3) (Vernon 2003). In this appeal, Horace contends the evidence was legally and factually insufficient to support his conviction. Because the evidence is sufficient to support the verdict, we affirm the judgment.

Beaumont Police Department Officer Edward Cormier, Sr. responded to a burglary-in-progress call and was dispatched to Vera Johnson's residence in Jefferson County on August 13, 2005. When he arrived at the scene, Johnson, an elderly woman, had already been untied by neighbors. She gave Cormier a description of the burglar and her missing vehicle, a four-door maroon 1980 Pontiac Phoenix. She also informed Cormier that a shotgun was missing from her home.

Officer Clint Weir with the Beaumont Police Department also responded to the call and arrived at the scene after Cormier. Weir obtained the vehicle identification number of Johnson's vehicle. He followed Johnson to the hospital where she gave him a description of the burglar.

Patricia Murphy, a forensic nurse examiner, testified that she examined Johnson after the incident and that her injuries were caused by blunt force trauma.

One August 13^th, one of Johnson's neighbors, Terrence Eaglin, who lived in the neighborhood with his grandmother, saw a suspicious man walking up and down the street on which Eaglin and Johnson lived. At trial, Eaglin identified Horace as the suspicious man he had seen walking up and down the street. Although they had never been introduced, Eaglin recognized Horace as someone who "used to live in the neighborhood" and someone he saw "every now and then" in the neighborhood. Around "noontime," Horace approached Eaglin and asked him for money. Eaglin did not give him any money.

Around six o'clock that evening, Eaglin saw Johnson's maroon car traveling fast in a direction Johnson normally did not travel. Eaglin became concerned because after years of living in Johnson's neighborhood, he had never known her to leave her house in the evening or to drive fast.

Eaglin testified he and his friend, Jeremy Keil, went to Johnson's house. Eaglin observed the garage door and back door were "busted wide open," and found Johnson restrained and gagged in her living room. She had been beaten and was in shock. Keil called 9-1-1 and the police subsequently arrived. Eaglin later gave a statement at the police department. He identified Horace in a line-up as the man that he had seen walking down the street who approached him on the day of the incident.

Sabil Washington, Eaglin's grandmother, also came to Johnson's aid when she heard Johnson's vehicle had been stolen. Earlier that day, Washington had gone to the store and returned. She did not notice any damage to Johnson's garage door and if it had been damaged, Washington would have noticed. She did not see who drove Johnson's vehicle away from the scene. Washington identified Horace as someone she had seen months before visiting former neighbors on her street.

Eugene Harmon, Jr. testified that around eight or nine o'clock on August 13th, Horace came to Harmon's residence. Harmon was surprised to see Horace; he had not seen Horace in "about 15 years." Harmon stepped outside to speak with Horace and did not see a vehicle in his driveway. Horace left and came back five or ten minutes later in a maroon vehicle that Harmon had never seen him in before. Horace said he and his girlfriend's dad had argued. Horace asked Harmon if he could "stay over." He told Harmon he had just bought the vehicle. Harmon said he could sleep in the vehicle in the driveway. That night and the next morning, Horace continued to sleep in the vehicle, and he later asked Harmon for some water. The day after Horace spent the night in Harmon's driveway, the police arrived.

While on duty the day after he responded to the call at Johnson's residence, Officer Weir located Johnson's vehicle parked in a driveway. Weir approached the vehicle and saw a man matching Johnson's description sleeping in the backseat of the vehicle. At trial, Weir identified Horace as the man he found sleeping in the vehicle. Horace refused to get out of the vehicle, and after a struggle with the police he was removed from the vehicle and arrested for the unauthorized use of a motor vehicle. Weir made sure there were no weapons in the vehicle, and at trial stated he did not know if the keys to the vehicle were ever found.

Johnson died of cancer prior to trial. Her daughter, Carroll Ann Smith, testified that Johnson would only leave the house in her car to go to church, the store, or the doctor, and did not go out at night. She stated Johnson never mentioned Horace, did not allow anyone else to drive her car, and always parked her car in the garage. In the days after the incident, Smith went to Johnson's house and noticed the television and one set of her car keys were missing.

In two issues, Horace challenges the legal and factual sufficiency of the evidence supporting his conviction. While Horace admits there is overwhelming evidence that Johnson's home was entered without her consent and some evidence that the perpetrator committed theft, he claims "the record is devoid of evidence sufficient to establish that appellant was the perpetrator." He argues that based on the evidence that Horace was in the neighborhood that day and then later was seen driving Johnson's vehicle down her street, were the fact-finder to determine Horace was driving Johnson's car without her permission, the evidence would at best support a conviction for unauthorized use of a motor vehicle. According to Horace, the evidence does not support a conviction for burglary of a habitation because the evidence fails to establish the vehicle was stolen at the time Johnson's residence was burglarized, no witness identified Horace as a person at Johnson's residence, no witness stated Horace indicated he participated in the offense, none of Johnson's other stolen property was found in the vehicle, and there were no fingerprints or DNA evidence linking Horace to the scene.

In a legal sufficiency review, an appellate court considers the evidence in the light most favorable to the verdict to determine whether 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, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Unless otherwise provided by law, the trier of fact is the sole judge of the facts proven and of the weight to be given the testimony. Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979); see also Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008) ("Appellate courts should afford almost complete deference to a jury's decision when that decision is based upon an evaluation of credibility.").

In a factual sufficiency review, the court considers the evidence in a neutral light. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App.), cert. denied, 128 S. Ct. 282, 169 L. Ed. 2d 206 (2007). The issue is whether the evidence supporting the conviction, although legally sufficient, is so weak that the fact-finder's determination is clearly wrong and manifestly unjust, or whether conflicting evidence so greatly outweighs the evidence supporting the conviction that the fact-finder's determination is clearly wrong and manifestly unjust. Id.

A person commits burglary of a habitation if, without the consent of the owner, the person enters the habitation and commits or attempts to commit a felony, theft, or assault. Tex. Pen. Code Ann. § 30.02(a)(3). In a circumstantial-evidence case, it is unnecessary for every fact to point directly and independently to the guilt of the accused; rather, it is enough if the finding of guilt is warranted by the cumulative force of all the incriminating evidence. Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). In reviewing the sufficiency of the evidence, "we should look at 'events occurring before, during and after the commission of the offense[.]'" Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (quoting Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985)). Circumstantial evidence is as probative as direct evidence in establishing an actor's guilt; circumstantial evidence alone can be sufficient to establish guilt. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). When there is independent evidence of a burglary, the defendant's unexplained personal possession of the recently stolen property in a burglary may permit an inference that the defendant is the one who committed the burglary. See Rollerson v. State, 227 S.W.3d 718, 725 (Tex. Crim. App. 2007); Hardesty v. State, 656 S.W.2d 73, 76 (Tex. Crim. App. 1983).

There is no dispute that Johnson's residence was burglarized. Eaglin testified he had seen Horace walking up and down Johnson's street the day of the burglary. Eaglin stated Horace appeared suspicious that day and had asked him for money. Later that evening, he saw Horace driving Johnson's vehicle fast down the street. The garage and back doors had been "busted wide open" and one set of Johnson's keys was missing.

On the evening of the burglary, Harmon allowed Horace to sleep in a maroon vehicle in his driveway. Once Horace arrived at his house in the vehicle, he did not leave Harmon's property until police found Horace sleeping in Johnson's vehicle and took him into custody. Weir testified the man he found sleeping in Johnson's car matched Johnson's description of the burglar.

Viewing the record in the light most favorable to the verdict, a rational jury could have concluded beyond a reasonable doubt that Horace burglarized Johnson's residence. Furthermore, a neutral review of the entire record does not demonstrate that the proof of guilt is so obviously weak as to undermine the confidence in the jury's determination, nor does it demonstrate that the proof of guilt is greatly outweighed by contrary proof. The jury could draw rational inferences from the testimony. As the trier of fact, the jury was free to determine the weight given the testimony of each of the witnesses and appellant's possession of Johnson's vehicle. The evidence is legally and factually sufficient to support the verdict. Issues one and two are overruled. The trial court's judgment is affirmed.

AFFIRMED.

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DAVID GAULTNEY

Justice

Submitted on February 26, 2009

Opinion Delivered April 8, 2009

Do Not Publish

Before Gaultney, Kreger, and Horton, JJ.

1. The indictment and the trial court's judgment refer to appellant as Joe Frank Horace, Sr. a/k/a Joe Frank Horace.