Franklin Eugene Boone v. State

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-05-495 CR ____________________

FRANKLIN EUGENE BOONE, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 410th District Court Montgomery County, Texas Trial Cause No. 05-03-02594-CR

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MEMORANDUM OPINION

A jury found Franklin Eugene Boone guilty of attempted burglary. See Tex. Pen. Code Ann. §§ 15.01(a), 30.02(a)(1), (3) (Vernon 2003). Though Boone pled "not guilty" to the offense, he and the State entered into a sentencing agreement after the jury reached its verdict. Boone pled "true" to five enhancement paragraphs, and the State recommended a sentence of twenty-five years. The trial court sentenced Boone to the recommended twenty-five years in prison and later certified that Boone had the right to appeal the jury's verdict. Boone brings four issues for our review. We affirm.

In issues one and two, Boone challenges the legal and factual sufficiency of the evidence supporting his conviction for the attempted burglary of Mary Haake's home. He argues that the evidence is insufficient to show he attempted to enter Haake's home by using a screwdriver to open a lock. ⁽¹⁾  

In determining issues of legal sufficiency, we ask if, after reviewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense to exist beyond a reasonable doubt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim. App. 2006); Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004)). "The reviewing court must give deference to 'the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.'" Hooper, 214 S.W.3d at13 (quoting Jackson, 443 U.S. at 318-19, 99 S. Ct. 2781).  

In determining the evidence's factual sufficiency, we review the evidence in a neutral light. Roberts v. State, No. AP-75051, 2007 WL 1135647, at *1 (Tex. Crim. App. Apr. 18, 2007). "Evidence can be factually insufficient in one of two ways: (1) when the evidence supporting the verdict is so weak that the verdict seems clearly wrong and manifestly unjust, and (2) when the supporting evidence is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust." Id. (citing Watson v. State, 204 S.W.3d 404, 414-415 (Tex. Crim. App. 2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). The reviewing court may not reverse for factual insufficiency if "'the greater weight and preponderance of the evidence actually favors conviction.'" Roberts, 2007 WL 1135647, at *1 (quoting Watson, 204 S.W.3d at 417). While the appellate court may "second-guess the jury to a limited degree, the review should still be deferential, with a high level of skepticism about the jury's verdict required before a reversal can occur." Roberts, 2007 WL 1135647, at *1 (citing Watson, 204 S.W.3d at 417; Cain v. State, 958 S.W.2d 404, 407, 410 (Tex. Crim. App. 1997)).  

A person commits the offense of burglary of a habitation if, without the effective consent of the owner, (i) he enters a habitation with intent to commit a felony, theft, or assault, or (ii) he enters a habitation and commits or attempts to commit a felony, theft, or assault. Tex. Pen. Code Ann. § 30.02(a)(1), (3) (Vernon 2003). A person commits the offense of attempted burglary of a habitation if, with specific intent to commit the offense, "he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended." Tex. Pen. Code Ann. § 15.01(a) (Vernon 2003).

Boone argues that the evidence fails to show he used a screwdriver to open any lock of Haake's home. Boone contends there was:

• •no testimony that any of the exterior doors providing entry into Haake's residence were opened;
• •no testimony that Boone attempted to enter Haake's residence or attempted to open any lock of the residence;
• •no testimony about or photographs showing any scrapes, scratches, pry marks, or damage of any kind to any surface on the exterior of the residence, to any exterior door of the residence, or to any exterior lock of the residence;
• •no testimony that a screwdriver was used to open any exterior lock of the residence or to attempt to open any exterior lock of the residence.

The Evidence

Beginning with Trevan Hartman (Haake's neighbor), the State presented several witnesses to establish its case against Boone. Hartman testified that their neighborhood is located in a rural area on a dead-end road and that the neighbors watch out for one another. On the day of the offense, Hartman saw a stranger walking down the road with a piece of rope in his hand. Hartman watched the man "cut across the woods" toward Haake's home. After seeing the man on Haake's property, Hartman got his pistol, walked across the road, and knocked on Haake's door. When no one answered the door, Hartman walked down the driveway and noticed a pried screen on Haake's front window. Hartman walked to another door, knocked there, and shouted, "hello." Still receiving no answer, Hartman looked around the corner of the house and saw Boone, the stranger, with his hand on the handle of a door to the house. According to Hartman, from a distance of fifteen feet he saw Boone stick a screwdriver in the door of Haake's home. At that point, Hartman stepped around the corner, pulled his gun, and instructed Boone to lie down. Before complying with Hartman's instructions, Boone threw the rope and screwdriver toward the wooded area close to Haake's home. After Boone lay down, Hartman called his wife on a cell phone and requested that she call for law enforcement assistance.

Hartman further testified that Boone asked to leave before the police arrived. Boone told Hartman that the homeowners were his friends and that he was there to use the telephone. After the officers arrived, they took Boone into custody, and Hartman assisted the officers in locating the screwdriver and rope. On cross-examination, Hartman conceded that he did not see Boone take the screen off the window and that he did not know whether Boone knocked on Haake's door.

Larry Oxner, a deputy with the Montgomery County Sheriff's Department, testified about Boone's arrest. Oxner interviewed Boone at Haake's house. Boone said that after arguing with someone, he walked to Haake's house to use the telephone. Oxner testified that business establishments near the location of the alleged argument had phones available for public use. Further, Oxner found a screwdriver and cord within throwing distance of the house. On cross-examination, Oxner conceded that the evidence collected at the scene did not, by itself, indicate Boone's intent to commit burglary.

Mary Haake testified that she hired Boone to paint her home in 2003. Haake said that Boone did a good job and was an "excellent painter." After Boone completed the work, Haake never saw Boone again. She further testified that she did not give Boone permission to enter her home on the day of the offense, September 29, 2004.

The State also offered testimony about a prior offense committed by Boone. Dan Norris, an officer with the Montgomery County Sheriff's Department, testified that Boone pled guilty to a 1989 offense, burglary of a habitation. Norris explained that a pry bar had been used during the 1989 offense to open the home's back door.

In his defense, Boone presented two witnesses, his wife and his cousin. Marti Boone, his wife, testified that Boone had persistent trouble with his truck during September 2004. Boone often carried a screwdriver so he could repair things, Marti said, as he was a "fix-it-of-all trades kind of guy." Jessie Boone, his cousin, stated that he worked with Boone at Haake's home in 2003. Jessie also remembered that Boone had problems with his truck in 2004. On two occasions, he and Boone attempted to repair the truck's alternator.

We find the evidence legally sufficient to show that Boone attempted to enter Haake's home. The record shows that Hartman saw Boone with "his hand on the handle of the door. . . and he had a screwdriver in his hand." Hartman said Boone "was sticking the screwdriver in the door." Further, Hartman testified that Boone attempted to discard the screwdriver, which is evidence consistent with Boone's consciousness of guilt. In this case, the jury could have found that the essential elements of attempted burglary existed beyond a reasonable doubt. See Hooper, 214 S.W.3d at 13. We overrule issue one.

In addition, the evidence is factually sufficient to support Boone's conviction for attempted burglary. We have reviewed all of the evidence and considered Boone's arguments about the lack of physical evidence, such as scrapes, pry marks, and photographs. In light of Hartman's direct testimony that he saw Boone stick a screwdriver in Haake's back door and then attempt to discard it, the evidence supporting the verdict is not so "weak" that it renders the verdict "clearly wrong and manifestly unjust." See Roberts, 2007 WL 1135647, at *1. Further, the great weight and preponderance of the evidence supporting Boone's arguments does not outweigh the evidence supporting the verdict and render it "clearly wrong and manifestly unjust." See id. We overrule issue two.  

Extraneous Offense

In issue three, Boone contends the trial court abused its discretion in admitting evidence of a prior conviction. Boone argues that the trial court erred in admitting evidence of his conviction for burglary of a habitation because the offense was more than ten years old. Boone contends that Rule 609 makes the 1989 extraneous offense inadmissible. See Tex. R. Evid. 609(b). ⁽²⁾  

Rule 609 imposes a ten-year limitation for extraneous evidence offered to impeach a witness's testimony. Tex. R. Evid. 609(b). ⁽³⁾

However, Rule 609 does not apply here because the State offered the extraneous evidence to show intent, not to attack a witness's credibility. In fact, Boone did not testify. Further, he did not present this argument to the trial court. See Tex. R. App. P. 33.1(a). We overrule issue three.

Jury Misconduct

Issue four asserts the trial court abused its discretion in denying Boone's motion for new trial. Boone alleges that the trial court should have granted his motion because of jury misconduct during the deliberations on his guilt.

Boone's motion for new trial alleges that the affidavit of juror James Mitchell presents evidence that (1) the jurors did not follow the judge's instructions about discussing the facts and evidence only during jury deliberations; (2) the jurors did not "accurately weigh all the facts and evidence in this case[;]" and, (3) Mitchell "only agreed to a vote of guilty after having the discussion with other members of the jury, that they would agree[] to a minimum sentence of approximately two or three years of incarceration."   

Rule 606(b) of the Texas Rules of Evidence provides:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the jury's deliberations, or to the effect of anything on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve.

Tex. R. Evid. 606(b).

As this Court recently explained, Rule 606(b) means that "'jurors are no longer competent to testify that they decided the verdict by lot, that they decided the case based on another juror's incorrect statement of the law, or that they discussed the defendant's failure to testify and used that failure as a basis for convicting him.'" State v. Krueger, 179 S.W.3d 663, 666 (Tex. App.-Beaumont 2005, no pet.) (quoting State v. Ordonez, 156 S.W.3d 850, 852 (Tex. App.-El Paso 2005, pet. ref'd)); see also Hines v. State, 3 S.W.3d 618, 621 (Tex. App.-Texarkana 1999, pet. ref'd).

Rule 606(b) provides only two exceptions. A juror may testify: (1) "whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve." Tex. R. Evid. 606(b). "To constitute 'outside influences,' the information must have come from a source outside the jury, i.e., a non-juror who introduces information affecting the verdict." Tinker v. State, 148 S.W.3d 666, 673 (Tex. App.-Houston [14th Dist.] 2004, no pet.). "Even a juror's injection of his own personal experiences, knowledge, or expertise will not be considered as an 'outside influence' because such is said to emanate from inside the jury." Franks v. State, 90 S.W.3d 771, 800 (Tex. App.-Fort Worth 2002, no pet.).

None of the statements in Mitchell's affidavit regarding the jury's deliberations fall within the two exceptions provided by Rule 606(b). The affidavit does not assert that information came from a source outside the jury or that a juror lacked the qualifications to serve. See Tex. R. Evid. 606(b). Thus, Mitchell's affidavit offered no competent evidence for the trial court's consideration. See Krueger, 179 S.W.3d at 666. Further, at the hearing on Boone's motion, Mitchell testified that he had no information about any outside influences affecting the jury's deliberations and that he knew of no reason why he would have been disqualified from serving as a juror in Boone's case. Thus, the trial court properly denied Boone's motion for new trial. We overrule issue four.

Having overruled all of Boone's issues, we affirm the trial court's judgment.

AFFIRMED.

____________________________

HOLLIS HORTON

Justice

Submitted on February 8, 2007

Opinion Delivered June 6, 2007

Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.

1.

The charge instructed the jury to consider the following elements in determining its verdict: (1) whether Boone with specific intent to commit the offense of burglary, (2) attempted to enter Haake's home by using a screwdriver to open a lock, (3) without her consent, (4) with intent to commit theft, and (5) whether the attempt amounted "to more than mere preparation that tends but fails to effect the commission of the offense intended. . . ."

2.

While Boone also cites Rules 401, 402, 403, and 404, he made no arguments applying these evidentiary rules to his case. See Tex. R. Evid. 401, 402, 403, 404. We decline to make his arguments for him. See Tex. R. App. P. 38.1(h); Wyatt v. State, 23 S.W.3d 18, 23 n.5 (Tex. Crim. App. 2000); Ladd v. State, 3 S.W.3d 547, 573 (Tex. Crim. App. 1999).

3.

Rule 609 is entitled "Impeachment by Evidence of Conviction of Crime," and provides, in pertinent part, as follows: "Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect." Tex. R. Evid. 609(b).