Barnes v. State

585 S.W.3d 643

Daniel Thomas BARNES, Appellant

v.The STATE of Texas, Appellee

No. 06-19-00045-CR

Court of Appeals of Texas, Texarkana.

Date Submitted: September 10, 2019

Date Decided: September 25, 2019

Discretionary Review Granted December 11, 2019

Jeff Jackson, Attorney at Law, 736-A Hwy 259 N, Kilgore, TX 75662, for Appellant.

John J. Roberts, Assistant District Attorney, Tom Watson, Gregg County District Attorney, 101 E Methvin, Ste. 333, Longview, TX 75601, for Appellee.

Before Morriss, C.J., Burgess and Stevens, JJ.

OPINION

Opinion by Justice Burgess

Daniel Thomas Barnes was convicted of burglary of a habitation in a bench trial.

After the State introduced evidence of prior convictions, the trial court found the State's enhancement allegation true, sentenced Barnes to forty years' imprisonment, and ordered him to pay $2,100.00 for his court-appointed counsel. On appeal, Barnes argues that the evidence is legally insufficient to support the trial court's findings that he was guilty of the offense and was the same person who committed several prior offenses alleged by the State.

We conclude that legally sufficient evidence supported the trial court's finding that Barnes was guilty as a party to the offense of burglary of a habitation. We further conclude that legally sufficient evidence linked Barnes to a majority of the prior convictions introduced at punishment. However, we find that Barnes was not linked to two prior Tennessee judgments of conviction by sufficient evidence. Because we cannot say that we have fair assurance that the Tennessee convictions did not contribute to his punishment, we reverse Barnes' sentence and remand for a new trial on punishment only.¹

I. Background

The evidence at trial established that the owner of the burgled home was Michael Minshew. Minshew's neighbor, Marlon Hardeman, witnessed a portion of the crime. Hardeman testified that he almost ran over a Caucasian lady with "streaks of light blue in her hair" as he was leaving for work. When he returned to the neighborhood with coworkers, he saw the same lady and a small Caucasian male, with lightning bolt tattoos on his throat, standing beside Minshew's Dallas Cowboy golf cart. The golf cart had "a blanket with ... a lot of stuff in it just bundled up." Hardeman said that a red, four-door car was on the side of the road close to the golf cart. Because he knew the golf cart was Minshew's, Hardeman became suspicious, recorded the license plate number of the red car, and called Minshew before returning to work.

According to Minshew, Hardeman reported on the phone call that the couple was "loading things off [his] golf cart into a red car." Minshew called the police and rushed home to find that his windows had been beaten in, there was "a hole in [his] back door," items throughout the home were destroyed, and blue "2-cycle oil" had been poured all over the home. Minshew noticed that his family's social security cards, birth certificates, and passports were stolen, along with the golf cart, clothes, jewelry, rifles, binoculars, video games, computers, iPhones, iPads, and other electronics.

Cedric Davis, a patrol officer with the Longview Police Department (LPD), responded to Minshew's call, interviewed Hardeman, and caused dispatchers to issue a warning to police to be on the lookout for the suspect vehicle Hardeman described. LPD Officer Keven Nichols testified that officers quickly located a red 2005 Chevrolet Cavalier with a matching license plate in a nearby park. The Cavalier was packed full of items stolen from Minshew's home.

Brent Creacy, another LPD officer, testified that the suspects, Barnes and Cassidy Taylor, were arrested close by. The trial court saw that Barnes had lightning bolts tattooed on his neck. According to Creacy, Barnes admitted that the red Cavalier belonged to him. Taylor led Creacy to the stolen golf cart. Barnes' fingerprints were found on the red Chevrolet packed with Minshew's stolen items, and Barnes referred to the car as his in both his interview with law enforcement and a recorded conversation with his mother. LPD Investigator Gabriel Downs testified that Barnes "wanted to make a deal" to protect Taylor, his girlfriend. After hearing this evidence, the trial court found Barnes guilty of burglary of a habitation as a party to the offense.

II. Legally Sufficient Evidence Supports Barnes' Conviction as a Party to the Offense

Barnes argues that insufficient evidence supported a finding that he entered Minshew's home. We disagree because we find that legally sufficient evidence supports the trial court's finding that Barnes was guilty as a party to the offense.

A. Standard of Review

In evaluating legal sufficiency of the evidence, we review all of the evidence in the light most favorable to the trial court's judgment to determine whether any rational fact-finder could have found the essential elements of the charged offense. Brooks v. State , 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ); Hartsfield v. State , 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref'd). We examine legal sufficiency under the direction of Brooks , while giving deference to the responsibility of the fact-finder "to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson , 443 U.S. at 318–19, 99 S.Ct. 2781 ); Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). When faced with conflicting evidence, we presume that the trial court resolved any such conflict in a way that supports the judgment, and we defer to that resolution. Turro v. State , 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).

Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State , 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The "hypothetically correct" jury charge is "one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id. Here, the State alleged that Barnes entered a habitation without the effective consent of the owner, Minshew, with the intent to commit theft.²

B. Party Liability

Barnes argues that nothing showed he entered Minshew's home. However, the court found that Barnes was guilty as a party to the offense.³ "A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both." TEX. PENAL CODE ANN. § 7.01(a). "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." TEX. PENAL CODE ANN. § 7.02(a)(2).

"While an agreement of the parties to act together in a common design seldom can be proved by direct evidence, reliance may be had on the actions of the parties, showing by either direct or circumstantial evidence, an understanding and common design to do a certain act." Barnes v. State , 62 S.W.3d 288, 297 (Tex. App.—Austin 2001, pet. ref'd). Thus, circumstantial evidence may be sufficient to show that a person is a party to the offense. Beardsley v. State , 738 S.W.2d 681, 684 (Tex. Crim. App. 1987). When "determining whether an individual is a party to an offense and bears criminal responsibility, the court may look to events before, during, and after the commission of the offense." Id.

C. Analysis

Barnes argues that the State was required to put forth some proof that he entered Minshew's home with Taylor. He is incorrect. See Rollerson v. State , 227 S.W.3d 718, 725–26 (Tex. Crim. App. 2007). "[A] defendant's unexplained [exclusive] possession of property recently stolen in a burglary permits an inference that the defendant is the one who committed the burglary." Id. at 725 (citing Poncio v. State , 185 S.W.3d 904 (Tex. Crim. App. 2006) ). Where the possession of the stolen property is not exclusive, the permitted inference by the fact-finder is that the person in possession of the property was a party to the offense, even where there is no evidence that the person entered the burglarized premises. See Rollerson , 227 S.W.3d at 726.

"Evidence is sufficient to convict under the law of parties if the defendant is physically present at the commission of the offense and encourages its commission by words or other agreement." Rosillo v. State , 953 S.W.2d 808, 814 (Tex. App.—Corpus Christ 1997, pet. ref'd) (citing Ransom v. State , 920 S.W.2d 288, 302 (Tex. Crim. App. 1994) (op. on reh'g)). In addition to the fact that Barnes was found in possession of the stolen property a short time after Minshew reported the burglary, Hardeman saw Barnes at the scene of the crime with his girlfriend loading Minshew's property, which bore his fingerprints, into his car.

Viewing the evidence in a light most favorable to the verdict, we conclude that legally sufficient evidence supported the trial court's finding that Barnes was a party to the offense.

III. Barnes Was Not Linked to the Tennessee Convictions

Next, Barnes argues that the evidence was legally insufficient to link him to alleged prior offenses and, therefore, that the trial court erred in admitting them into evidence at punishment.

A. Standard of Review

"To establish that a defendant has been convicted of a prior offense, the State must prove beyond a reasonable doubt that (1) a prior conviction exists^{[4 ]} ... and (2) the defendant is linked to that conviction." Henry v. State , 466 S.W.3d 294, 301 (Tex. App.—Texarkana 2015), aff'd , 509 S.W.3d...