Gary Wayne Willoughby AKA Herbert James Hancock v. State ( 2009 )

IN THE
TENTH COURT OF APPEALS
No. 10-07-00313-CR
GARY WAYNE WILLOUGHBY,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2007-923-C2
MEMORANDUM OPINION
Appellant Gary Wayne Willoughby was convicted of burglary of a habitation
and sentenced to life in prison after the jury found true two enhancement paragraphs
for prior habitation burglaries. Raising four issues, he appeals. We will affirm.
Willoughby’s first two issues complain that the trial court erred in failing to sua
sponte charge the jury on the lesser-included offenses of theft and criminal trespass.
Willoughby neither requested these charges nor objected to their omission. The trial
court need not submit a lesser-included instruction sua sponte if neither side requests
one or objects to its omission. See Delgado v. State, 235 S.W.3d 244, 249-50 (Tex. Crim.
App. 2007). Moreover, the defense may not claim error successfully on appeal due to
the omission of a lesser-included offense if the defense did not request one. Id. at 250.
Accordingly, the trial court was not required to give the lesser-included instructions to
the jury sua sponte, and we overrule Willoughby’s first and second issues. See Mashburn
v. State, 272 S.W.3d 1, 15 (Tex. App.—Fort Worth 2008, pet. ref’d).
Willoughby’s third issue asserts that the evidence is legally and factually
insufficient to establish the intent to commit theft. When reviewing a challenge to the
legal sufficiency of the evidence to establish the elements of a penal offense, we must
determine whether, after viewing all the evidence in the light most favorable to the
verdict, any rational trier of fact could have found the essential elements of the offense
beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781,
2789, 61 L. Ed. 2d 560 (1979). Our duty is to determine if the finding of the trier of fact is
rational by viewing all of the evidence admitted at trial in the light most favorable to the
verdict. Adelman v. State, 828 S.W.2d 418, 422 (Tex. Crim. App. 1992). In doing so, any
inconsistencies in the evidence are resolved in favor of the verdict. Curry v. State, 30
S.W.3d 394, 406 (Tex. Crim. App. 2000).
In a factual sufficiency review, we ask whether a neutral review of all the
evidence, though legally sufficient, demonstrates either that the proof of guilt is so
weak or that conflicting evidence is so strong as to render the factfinder’s verdict clearly
wrong and manifestly unjust. Watson v. State, 204 S.W.3d. 404, 414-15 (Tex. Crim. App.
2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). “The court reviews the
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evidence weighed by the jury that tends to prove the existence of the elemental fact in
dispute and compares it with the evidence that tends to disprove that fact.” Johnson, 23
S.W.3d at 7. The appellate court “does not indulge in inferences or confine its view to
evidence favoring one side of the case. Rather, it looks at all the evidence on both sides
and then makes a predominantly intuitive judgment. . . .” Id. (quoting William Powers
and Jack Ratliff, Another Look at “No Evidence” and “Insufficient Evidence,” 69 TEXAS L.
REV. 515, 519 (1991)). The nature of a factual sufficiency review authorizes an appellate
court, although to a very limited degree, to act as the so-called “thirteenth juror” to
review the factfinder’s weighing of the evidence and disagree with the factfinder’s
determination. Watson, 204 S.W.3d at 416-17.
The indictment charged Willoughby with entering the habitation of the
complainant, Adele Hanus, a 79-year-old woman, without her effective consent and
with the intent to commit theft. A person commits the offense of burglary by entering a
habitation without the effective consent of the owner, with the intent to commit a felony
or theft. TEX. PEN. CODE ANN. § 30.02(a)(1) (Vernon 2003). The requisite specific intent
to commit theft can be inferred from a defendant’s conduct and remarks and from all
surrounding circumstances. See Robertson v. State, 871 S.W.2d 701, 705 (Tex. Crim. App.
1993). “In a burglary prosecution, the intent to commit theft may be inferred from
circumstantial evidence.” Moreno v. State, 702 S.W.2d 636, 641 (Tex. Crim. App. 1986),
disapproved on other grounds by Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007); see
Roane v. State, 959 S.W.2d 387, 388 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d);
Linder v. State, 828 S.W.2d 290, 294 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d).
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Furthermore, immediate flight from a scene can be considered evidence of
consciousness of guilt. See Fentis v. State, 582 S.W.2d 779 (Tex. Crim. App. 1976).
Hanus was on the phone in the hallway of her home when Willoughby, whom
she had not given consent to be there, walked out of the back bedroom and past her and
the bathroom, clutching a bag. She told him to return, and he exclaimed that he only
wanted to use the bathroom. He fled on his bicycle, dropping a crowbar and some of
Hanus’s property, yet he escaped with jewelry, a pillow case, and other personal effects,
including Hanus’s deceased husband’s identification. Willoughby had gone through
the back bedroom’s closet, chest of drawers, and jewelry boxes. Police located
Willoughby soon on his bicycle, but he refused to stop, then did stop only to ride off
when the officer stopped his patrol car and was getting out of it. After police detained
Willoughby, Hanus identified him in a lineup.
Willoughby’s contention on appeal is that the evidence is insufficient to establish
that he formed the intent to commit theft before he entered Hanus’s home, based on the
evidence that he told Hanus that he only wanted to use the bathroom. But the evidence
shows that he entered her home carrying a bag and a crowbar, went through the back
bedroom, emptying out jewelry boxes and going through a closet and drawers, and fled
from Hanus and the police.
Viewing the evidence in the light most favorable to the verdict, we find that a
rational trier of fact could have found beyond a reasonable doubt that Willoughby
entered Hanus’s home with the intent to commit theft. Other than Willoughby’s
statement that he entered her home only to use the bathroom, there was no other
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controverting evidence, and the jury was free to disbelieve Willoughby’s explanation to
Hanus for being in her home. And considering all of the evidence in a neutral light, we
find that the evidence is factually sufficient. The proof of guilt is not so weak nor the
conflicting evidence so strong as to render the jury’s verdict clearly wrong and
manifestly unjust. Because the evidence is legally and factually sufficient, we overrule
Willoughby’s third issue.
In his fourth issue, Willoughby asserts that the trial court’s instruction in the
punishment charge that the jury should not let “sympathy” affect its deliberations and
verdict is constitutional error that caused egregious harm in this non-capital case. We
have recently decided this issue against Willoughby’s position and see no occasion to
revisit our ruling. See Wilson v. State, 267 S.W.3d 215, 219-20 (Tex. App.—Waco 2008,
pet. ref’d) (citing Saffle v. Parks, 494 U.S. 484, 489, 110 S. Ct. 1257, 1260-61, 108 L. Ed. 2d
415 (1990) (holding that jurors need not “be allowed to base the sentencing decision
upon the sympathy they feel for the defendant after hearing his mitigating evidence.”)).
Willoughby’s fourth issue is overruled.
We affirm the trial court’s judgment.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion delivered and filed August 12, 2009
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