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West v. State

Court of Appeals of Texas, Seventh District, Amarillo

December 18, 2017

BOBBY JACK WEST, JR., APPELLANT
v.
THE STATE OF TEXAS, APPELLEE

         On Appeal from the 84th District Court Hutchinson County, Texas Trial Court No. 11, 171, Honorable William D. Smith, Presiding

          Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

          OPINION

          BRIAN QUINN, CHIEF JUSTICE

         Bobby Jack West, Jr. (appellant) appeals his convictions for burglary of a habitation, theft of a firearm, and felon in possession of a firearm. Through four issues, he contends that 1) his rights against double jeopardy were violated when he was convicted of both burglary of a habitation and theft, 2) a mistrial should have been granted when he was referred to as a "known narcotics user, " and 3) the evidence was insufficient to prove he burglarized a habitation and possessed a firearm. We affirm.

         Background

         The circumstances began with the burglary of a home owned by S. Boren (Mrs. Boren). Three people were seen in her backyard and subsequently carrying away property. The property was later identified to belong to Mrs. Boren and her husband. It included rifles, tools, an ipad, and jewelry. Furthermore, a witness identified appellant as one of the three seen with the property as the group departed the residence. Following these events, the State indicted appellant.

         The indictment contained four counts.[1] Through the first, it was alleged that appellant "did then and there intentionally and knowingly enter a habitation without the effective consent of [S.] BOREN, the owner, and therein attempted to commit and committed theft." The State alleged in the second count that he "unlawfully appropriate[d] property, to wit: a Springfield 9mm pistol . . . and a Bushmaster rifle . . . by exercising control over said property from [S.] BOREN without the effective consent of [S.] Boren, the owner, thereof, and with intent to deprive said owner of said property."[2] The accusation of appellant being a felon who unlawfully possessed the aforementioned firearms was encompassed within the third count. Upon trial by a jury, appellant was found guilty of each count.

         Issue Three - Sufficient Evidence of Burglary

         We begin with addressing appellant's third issue. Through it, he contends that the evidence was insufficient to establish, beyond reasonable doubt, that he burglarized a habitation. We overrule the issue.

         We most recently explained the pertinent standard of review in Carroll v. State, No. 07-15-00363-CR, 2017 Tex.App. LEXIS 8849, at *4-5 (Tex. App.-Amarillo Sept. 19, 2017, no pet.) (mem. op., not designated for publication). We apply that standard here.

         Next, the State charged appellant with violating § 30.02(a)(3) of the Texas Penal Code. Under that statute, a person commits an offense "if, without the effective consent of the owner, the person . . . enters a building or habitation and commits or attempts to commit a . . . theft." Tex. Penal Code Ann. § 30.02(a)(3) (West Supp. 2017). Furthermore, a person commits theft if he unlawfully appropriates property with intent to deprive the owner of it. Id. § 31.03(a). The elements of these two statutes were incorporated into both the indictment and the jury charge on guilt / innocence.

         Also included in the jury charge was an instruction on the law of parties. That is, the trial court informed the jury that a person is "criminally responsible for an offense committed by the conduct of another 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." See id. § 7.02(a)(2) (so defining liability as a party to a crime committed by another person). Given this charge, the State was not necessarily obligated to prove that appellant himself entered the habitation to secure his conviction for burglary. As said in Powell v. State, 194 S.W.3d 503 (Tex. Crim. App. 2006), "an individual may be guilty of burglary of a habitation even though he does not personally enter the burglarized premises if he is acting together with another in the commission of the offense." Id. at 506-07; accord Riden v. State, No. 05-16-00096-CR, 2017 Tex.App. LEXIS 3657, at *11 (Tex. App.-Dallas Apr. 25, 2017 no pet.) (mem. op., not designated for publication) (stating the same). With this said, we turn to the evidence of record.

         Taken from within the home of Mrs. Boren was miscellaneous jewelry, a class ring, a watch, an ipad, and diamond bracelet. An AR-15 Bushmaster rifle and accompanying case, a 9mm Springfield handgun and accompanying case, and tools within a small case were also taken. Furthermore, entry into the abode was gained via a backdoor that was seldom used; and an officer would later testify that it was reportedly "kicked-in."

         About the time the aforementioned items were taken, a witness saw two males and a female enter the backyard of the home. Several minutes later the same witness saw the female and one male exit the yard and leave in different directions. The male wore blue jeans, a camouflage hat, and a t-shirt as he walked behind the car in which the witness sat. The witness turned to watch him pass and noticed him carrying a long black gun case and two smaller black cases. Though the witness did not "fully recognize" the person at ...


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