Gregory v. State

DON BURGESS, Justice,

concurring and dissenting.

I concur with the majority’s resolution of issues two, three and the legally sufficient portions of issues one and four. I respectfully dissent to the factual sufficiency analysis and conclusion.

As noted by the majority, the State acknowledges the sole basis for identifying Louis as one of the robbers is his close proximity to property identified as having been taken during the robbery. The record confirms this. There is no testimony that links the man Officer Schexnider saw running from the scene of the robbery to the two men spotted by Officer Harrison, one of whom was later identified as Louis, running in the alleyway across his perimeter position.

I agree with the majority the sufficiency of the evidence in this case will turn on the long-standing common-law rule involving “unexplained personal possession of recently stolen property.”³ See Hynson v. State, 656 S.W.2d 460, 460-61 (Tex.Crim.App.1983). As the majority notes, from our quote in Rogers v. State, 929 S.W.2d 103, 108 (Tex.App.-Beaumont 1996, no pet.), in order to rely on Hardesty’s “permissible inference,” the actor must have been in “personal possession” of the stolen property at some point. An early case, Frazier v. State, 88 Tex.Crim. 411, 227 S.W. 324 (1921), involved the identity of the thief of some hogs. The evidence in Frazier indicated the stolen hogs were apparently found dead lying in the front yard of the residence of the defendant’s mother. Id. at 325. The witness who spotted the dead hogs in the front yard also observed the defendant and his brother leave the house, and also observed another man and woman:

Without discussing the question of the sufficiency of the identification of the alleged stolen property, it seems from the record that, at the house in whose yard the witness King said he found the dead hogs, there were four people, none of whom claimed to own the hogs or have same in their possession. Possession appears to be the only circumstance of guilt, and in order to justify such inference the possession must not only be shown to be recent and unexplained, but also personal and exclusive in the party or parties sought to be charged thereby. The discovery of the alleged stolen property in the presence of a group of people, one of whom is the accused, unaccompanied by evidence of an acting together and thus of guilt as a principal or accomplice on the one hand, or of evidence which satisfactorily fixes possession in the person charged, would not support a conviction for theft as to anyone of the said persons. That guilt as to one cannot be predicated on the mere presence of the group, and a general impersonal possession arising therefrom, seems too well settled to need discussion. Section 2463, Branch’s Annotated Penal Code, and authorities there cited. We find nothing in this record showing any claim of ownership or possession of said hogs by this appellant, either in the testimony of the state or that of the defense.

Id.

The “unexplained personal possession of recently stolen property” inference in theft cases, as mentioned in Frazier, was extended to robbery cases in Batiste v. State, 464 S.W.2d 149, 151 (Tex.Crim.App.1971). In Batiste, the complainant testified he was walking down a street at about 12:50 a.m. when- two Black men robbed him at knifepoint of his eyeglasses, transistor radio, and wallet. Id at 150. The complainant heard one of the men say, “Come on, the cops,” and further observed the men run away. Id. However, because of poor eyesight, the complainant was unable to identify either of the robbers. Id. at 150-51. Approximately five minutes later, a police officer observed two men behind a closed business. Id. at 150. When the officer illuminated the area, the men fled. The two men were apprehended a short time later and a knife was found on one of the men, later identified as the defendant. Id. The defendant was arrested and, while seated in the patrol vehicle, was observed by another officer trying to gain access to his own pant’s pocket. When the officer checked the pocket, a pair of eyeglasses, later identified by the complainant as the glasses taken by the robbers, was found. Id. The defendant in Batiste was convicted and raised insufficient evidence on appeal. Id. at 150. The Court analyzed the issue in the following manner:

In Edmonds v. State, Tex. Cr.App., 407 S.W.2d 783, this Court reiterated the rule that ‘proof of appellant’s unexplained possession of the property recently stolen from the house, together with proof that the house had been burglarized by someone, was sufficient to support the conviction.’

Unexplained possession of recently stolen goods has been held to support a conviction for theft in numerous cases. English v. State, Tex. Cr.App., 441 S.W.2d 195; Stubblefield v. State, Tex. Cr.App., 372 S.W.2d 539.

‘This court has frequently said that robbery is an aggravated case of theft because in each instance the fraudulent taking of property with intent to appropriate it is the gravamen of the offense. * * * The distinction between the two offenses lies in the antecedent assault or violence or putting in fear of life or bodily injury necessary to constitute the offense of robbery.’ Alaniz v. State, 147 Tex. Cr.R. 1, 177 S.W.2d 965.

‘As in cases of burglary and theft, it would seem that a conviction of the defendant for robbery could well rest upon the fact that he was in possession of the loot which had recently been taken from the injured party.’ 5 Branch’s P.C.2d, Sec. 2596, pp. 29— 30.

Under the circumstances of this case, where a robbery has occurred at a location near the arrest and very close to the time of the arrest, and where the victim is unable to identify the robber, appellant’s unexplained possession of the victim’s eyeglasses at the time of his arrest is sufficient to sustain his conviction for the robbery by assault.

Batiste, 464 S.W.2d at 151. Ignoring Batiste’s use of a presumption of guilt rather than the Hardesty “permissible inference” of guilt, the facts in Batiste underscore the problem with the facts in this case. Simply put, “personal and exclusive possession” is a given under the facts of Batiste because the fruits of the robbery — complainant’s eyeglasses- — were found in the defendant’s pants pocket.

In this case, as Louis points out, “[t]here is no evidence in the record that Defendant had care[,] custody or control of the stolen items -or even that he could see them. For officers to need spotlights ... to see items as big as running people, it would be logical to assume that people in the dark would need more light to see small items inside a sticker bush.” In Batiste, the Court found the evidence to be sufficient to sustain the conviction absent a positive identification by the complainant because the defendant’s personal possession of the complainant’s property taken in the robbery was also recent, and unexplained. Id. at 151.

In another robbery case, Girard v. State, 631 S.W.2d 162 (Tex.Crim.App.1982), three robbers were involved, only one of whom was masked and wore gloves. Id. at 163. The State’s theory was the defendant was the masked man even though the complainant could not identify the masked man, but could say that appellant was of a similar height and build. Id. The evidence indicated that approximately forty to forty-five minutes after the robbery the defendant was seen in possession of jewelry taken in the robbery. Id. Some of the jewelry was given to a third party, Bogard, by the defendant. Id. It was later proven that Bogard was also a Mend of one of the un-masked robbers (Barnes). Id. at 164. In finding the evidence legally sufficient to support the conviction, the Court in Girard stated:

In this case, the fact that the appellant was shown by Bogard’s testimony to have been in possession of the loot so soon after the robbery was an inculpato-ry circumstance. Generally, the shorter the interval between the theft and the possession, the stronger is the circumstance (although the cases will vary according to such factors as the ease with which such property can be transferred). See Hardage v. State, 552 S.W.2d 837, 840 (Tex.Cr.App.1977). We hold that this very recent unexplained possession, together with the fact of the similarity of appearance and the fact that the appellant was a companion of at least on of the unmasked robbers, was sufficient evidence of guilt. Cf. Batiste v. State, 464 S.W.2d 149, (Tex.Cr.App.1971) (proof was sufficient when a man, whom the victim could not identify other than by race, was found nearby in possession of stolen property shortly after robbery).

Girard, 631 S.W.2d at 164. Again, in Gir-ard there was no question the defendant was in exclusive and personal possession of property taken from the robbery. In addition to this fact, the Girard jury had evidence the masked robber was similar in height and build to the defendant, and the defendant was tied to the un-masked robber Barnes by Barnes’ friendship with the defendant’s Mend Bogard.

In this case, there is no attempt to match Louis’s physical appearance with either of the men who robbed Hoffpauir or any of the other pizza employees. Nor was there an attempt to match the physical appearance of John Rice, the man arrested with Louis, with that of either robber.

The majority notes that under certain circumstances actions of a defendant may show a conscious assertion of the right to the stolen property which equates to proof of exclusive personal possession of said property, citing Todd v. State, 601 S.W.2d 718, 720 (Tex.Crim.App.1980) (defendant towed the stolen welder behind his pickup truck) and Kuczaj v. State, 848 S.W.2d 284, 288-89 (Tex.App.-Fort Worth 1993, no pet.) (defendant pawned the stolen electronic equipment). However, other than evidence that a defendant has made a verbal or written assertion of exclusive ownership or right to stolen property, the evi-dentiary circumstances in Batiste, Girard, Todd, and Kuczaj are descriptive of circumstantial⁴ proof of the defendants’ exclusive and personal possession of the stolen property in question. In Batiste, the victim’s property was in the defendant’s own pant’s pocket; in Girard, the defendant made his Mend Bogard a “Christmas present” of the stolen jewelry; in Todd, the defendant was towing a stolen welder attached to his pickup truck; and in Kuc-zaj, the defendant was identified by his driver’s license and name on the pawn ticket which included the serial numbers of the items stolen in a burglary of the victims’ home, with the date of the burglary being the same as the date the stolen items were pawned.

In this case, the evidence indicates Louis and Rice were found kneeling on the ground in the dark under some bushes in an apparent attempt to hide from police from whom they had been running. Found nearby were items taken in the robbery. Other than very close physical proximity to the stolen items, no other evidence from the robbery was ever located and nothing linking either Louis or Rice to the robbery was presented to the jury. There is no evidence that either Louis or Rice made any remarks with regard to the stolen items nor does the record indicate the police asked for any explanation.⁵ Although probative of wrongful conduct as well as circumstances of guilt, there are no inconsistent statements by Louis or Rice, nor did either man give any implausible explanation to the police when apprehended amidst the stolen property. See United States v. Cano-Guel, 167 F.3d 900, 905 (5th Cir.1999); Graham v. State, 566 S.W.2d 941, 951 (Tex.Crim.App.1978).

Recall that under a factual sufficiency analysis all of the record evidence is considered in a neutral light, both for and against the finding. Without the “light most favorable” viewpoint, the record in this case is missing many items of circumstantial evidence typically used to prove identity. I reiterate that the record does not have any physical comparison between the gunmen and either appellant or Rice. Moreover, there is no direct evidence as to the race of either Louis or Rice. One may surmise from a reading of the testimony of Officer Schexnider that having seen a “male black” race past him, and later stating that “they” were eventually found, Louis and Rice were both Black. However, this is not as solidly established as is typical in cases where identity of the perpetrator is hotly contested. Furthermore, the record is silent as to any relationship between Louis and Rice other than the fact that they just appeared together running at some point and were apprehended kneeling in the dark under the “sticker bush.” The record is also silent as to whether Louis or Rice were given the opportunity to explain the circumstances surrounding their apprehension including their awareness, if at all, of the presence of the stolen property near them. This fact severely water’s down the circumstance of guilt a fact finder is permitted to draw from exclusive and personal possession of recently stolen property.

Recently, the Court of Criminal Appeals held, in a capital murder case, the evidence was factually insufficient to support the jury’s verdict that the defendant was guilty as a party to the offense. See Vodochodsky v. State, No. 74129, 2004 WL 840121 (Tex.Crim.App. April 21, 2004) (publication pending). There is value in the Vodochodsky opinion, not for its party-liability discussion, but for the contrasting analyses the Court utilizes in discussing the legal and factual insufficiency issues. The Court applies the record-evidence to its factual sufficiency review standard as follows:

In this case, the overwhelming weight of the evidence mitigates against the conclusion that Vodochodsky solicited, encouraged, directed, aided or attempted to aid Engleton in committing the offense. All of the evidence that could legally support a rational jury’s conclusion is nevertheless so weak that our confidence in the jury’s verdict is undermined. When Engleton expressed a desire to “do it right now” and Vodochod-sky told him they did not yet have a plan, neither man specifically mentioned killing a peace officer. When Vodochod-sky told Essary that he bailed Engleton out of jail “to do this,” he did not specifically state that he bailed him out as part of a plan to kill police officers. Vodo-chodsky removed belongings from the house, but there is no proof that he did so as part of a murderous plot. And Vodochodsk/s comment to Essary that Engleton had “gone over the edge” when he took the deputy’s gun could just as reasonably have been a speculative comment, not one indicating that Vodochodsky had witnessed Monse’s murder.

Indeed, none of that evidence necessarily suggests that Vodochodsky acted with intent to promote or assist Engle-ton. None of his statements directly refer to killing police officers. His statements are devoid of information on the details of the alleged murder plot, and there is no other information in the record suggesting that Vodochodsky was planning the event with Engleton.

Furthermore, other evidence suggests that Vodochodsky was not working with Engleton. His whispered warning to Sara could indicate that while he may have known of Engleton’s plan, he was not a party to it. He did not participate in the purchase of ammunition. There is no evidence that Vodochodsky actually did any affirmative act to assist Engle-ton with the plan. Instead, Vodochod-sky had the bad luck of being the friend and roommate of a man determined to kill police officers and himself.

We conclude that proof of Vodochod-sky’ s guilt was so weak as to undermine confidence in the jury’s determination. The evidence was factually insufficient to convict.

Id. at *6.

For brevity’s sake, I have dispensed with a detailed rendition of the facts in Vodochodsky. However, as can be gleaned from the above-quoted portion, Engle-ton was the primary actor/murderer and the defendant’s role in the murders of two sheriffs deputies and a state trooper by Engleton was the key issue. At any rate, contrast the Court’s factual sufficiency analysis set-out above with the legal sufficiency analysis as it appears in the opinion:

The night before the offense, Engle-ton expressed a desire to “do it right now” and Vodochodsky told him they did not yet have a plan. A rational jury could conclude from this evidence that Engleton had a plan to kill a peace officer, that Vodochodsky was aware of Engleton’s plan, and the Vodochodsky wanted to wait until the plan was foolproof. On the day of the crime, Vodo-chodsky bailed Engleton out of jail, later telling Essary that he bailed him out “t do this.” A rational jury could conclude from this evidence that Vodochodsky bailed Engleton out of jail specifically to carry out the plan to kill the peace officers. Knowing that the police were coming and knowing that Engleton intended to commit suicide after his killing spree, Vodochodsky took many items from the house. A rational jury could conclude from this evidence that Vodo-chodsky sought to help Engleton wrap up his affairs as part of his participation in the plan. Finally, Vodochodsky commented to Essary after the crime that he knew that Engleton had “gone over the edge” when he took the deputy’s gun. A rational jury could conclude from this evidence that Vodochodsky was still at the residence and witnessed at least Monse’ s murder, despite any claims to the contrary.

In light of this evidence, we hold that a rational jury could have found beyond a reasonable doubt that Vodochodsky acted with an intent to promote or assist Engleton in committing this offense.

Id. at *5-*6.

In comparing the two analyses, it is fascinating to note that when the “light most favorable to the verdict” is switched off for factual sufficiency purposes, the incriminating nature of the evidence vis-a-vis Vodochodsky essentially disappears. No longer are any incriminating inferences, rational or otherwise, placed upon the identical facts that are alluded to in the legal sufficiency analysis. Indeed, evidence that, during a telephone conversation in the presence of Engleton, Vodo-chodsky whispered to his girlfriend, Sara Lopez, not to come to the house, led to the somewhat exculpatory view by the Court as possibly indicating Vodochodsky may have known of Engleton’s plan to kill the law enforcement personnel but “was not a party to it.” Id. at *6.

For factual sufficiency purposes, the evidence in this case appears to be weaker than the evidence in Vodochodsky. As admitted by Officer Harrison the actual gunmen could have slipped through the perimeter and gotten away, and that it is not uncommon for Black men to run from the Port Arthur police for a variety of reasons. Under the Zuniga standard, evidence of guilt can indeed “preponderate” in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 485 (Tex.Crim.App.2004). “[Ejvidence supporting guilt can ‘outweigh’ the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.” Id. As did the Court in Vodochodsky, one can find that all of the evidence can legally support a rational jury’s conclusion, yet is nevertheless so weak that a court’s confidence in the jury’s verdict is undermined under the guilt-beyond a-reasonable-doubt standard.

I would sustain the factually insufficient portion of issues one and four and remand for a new trial. Id. at 482.

3 . The doctrine appears to have been misused over the years by various courts of appeals as well as by the Court of Criminal Appeals. See Rogers v. State, 929 S.W.2d 103, 108 n. 2 (Tex.App.-Beaumont 1996, no pet.).

4 . “Circumstantial evidence is ‘direct proof of a secondary fact which, by logical inference, demonstrates the ultimate fact to be proven.’ ’’ See Cowan v. State, 840 S.W.2d 435, 438 n. 10 (Tex.Crim.App.1992) (quoting Taylor v. State, 684 S.W.2d 682, 684 (Tex.Crim.App.1984)).

5 . It has been held that application of Hardesty’s permissible inference does not violate the due process requirements of the federal constitution. See Barnes v. United States, 412 U.S. 837, 846, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973); Jackson v. State, 12 S.W.3d 836, 839 (Tex.App.-Waco 2000, pet. ref’d). References