Court of Appeals of Texas, Seventh District, Amarillo
Appeal from the 84th District Court Hutchinson County, Texas
Trial Court No. 11, 171, Honorable William D. Smith,
QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
QUINN, CHIEF JUSTICE
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.
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.
indictment contained four counts. 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." 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.
Three - Sufficient Evidence of Burglary
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.
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.
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.
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.
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
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