Foley v. State

DO NOT PUBLISH

Appeal from the 7th District Court of Smith County, Texas (Tr.Ct.No. 007-0984-19)

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

MEMORANDUM OPINION

Greg Neeley Justice.

The Texas Court of Criminal Appeals remanded this case to us to determine if the "time payment" fee in the judgment should be struck as prematurely assessed in light of Dulin v. State, 620 S.W.3d 129, 133 (Tex. Crim. App. 2021).^[1] We modify the judgment and affirm as modified.

Background

Appellant was indicted for burglary of a habitation with the intent to commit assault, a second-degree felony.^[2] Appellant entered a plea of "not guilty" and the case proceeded to a jury trial. The jury found Appellant "guilty" as charged in the indictment. Appellant elected to have the trial court assess his punishment. Appellant pleaded "true" to the State's allegations that he had previously been finally convicted of two sequential felony offenses, elevating his punishment range to imprisonment for twenty-five years to ninety-nine years or life.^[3] The trial court sentenced Appellant to life imprisonment. This appeal followed.

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Sufficiency of the Evidence

In his first issue, Appellant argues that the evidence is insufficient to support his conviction. Specifically, he contends the evidence is insufficient to establish that he is the individual who committed the burglary.

Standard of Review

In Texas, the Jackson v. Virginia legal sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. See Jackson v. Virginia, 443 U.S. 307, 316-17, 99 S.Ct. 2781, 2786-87, 61 L.Ed.2d 560 (1979). The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See id., 443 U.S. at 319, 99 S.Ct. at 2789. The evidence is examined in the light most favorable to the verdict. Id. A successful legal sufficiency challenge will result in rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S.Ct. 2211, 2217-18, 72 L.Ed.2d 652 (1982). This familiar standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S.Ct. at 2789.

Under this standard, we may not sit as a thirteenth juror and substitute our judgment for that of the factfinder by reevaluating the weight and credibility of the evidence. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); see also Brooks, 323 S.W.3d at 899. Instead, we defer to the factfinder's resolution of conflicting evidence unless the resolution is not rational. See Brooks, 323 S.W.3d at 899-900. When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the prosecution and therefore defer to that determination. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Direct and circumstantial evidence are treated equally. Id. Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The duty of a reviewing court is to ensure that the evidence presented supports a

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conclusion that the defendant committed the crime charged. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

The sufficiency of the evidence is measured against the elements of the offense as defined by a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge would include 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.

Applicable Law

As pertinent to this case, a person commits the offense of burglary of a habitation if, without the effective consent of the owner, he enters a habitation with the intent to commit assault. Tex. Penal Code Ann. § 30.02 (a)(1) (West 2019). One manner in which a person commits assault is if he intentionally, knowingly, or recklessly causes bodily injury to another. Id. § 22.01 (a)(1) (West Supp. 2020).

The State must prove beyond a reasonable doubt that the accused is the person who committed the crime charged. Roberson v. State, 16 S.W.3d 156, 167 (Tex. App.-Austin 2000, pet. ref'd) (citing Johnson v. State, 673 S.W.2d 190, 196 (Tex. Crim. App. 1984); Rice v. State, 801 S.W.2d 16, 17 (Tex. App.-Fort Worth 1990, pet. ref'd)). Identity may be proved by direct or circumstantial evidence. Robertson, 16 S.W.3d at 167 (citing Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986); Couchman v. State, 3 S.W.3d 155, 162 (Tex. App.-Fort Worth 1999, pet. ref'd); Creech v. State, 718 S.W.2d 89, 90 (Tex. App.-El Paso 1986, no pet.)). "In fact, identity may be proven by inferences." Robertson, 16 S.W.3d at 167 (citing United States v. Quimby, 636 F.2d 86, 90 (5th Cir. 1981)); see Clark v. State, 47 S.W.3d 211, 214 (Tex. App.-Beaumont 2001, no pet.); see also Jones v. State, 900 S.W.2d 392, 399 (Tex. App.-San Antonio 1995, pet. ref'd) (explaining that jury may use common sense and apply common knowledge, observation, and experience gained in ordinary affairs of life when giving effect to inferences that may reasonably be drawn from evidence).

The Evidence at Trial Regarding Identity

Twilajoy Whitehead, the victim of the burglary, testified she was alone in her apartment on South Kennedy Avenue in Tyler, Texas during the early morning hours of April 16, 2019. When she heard loud noises outside, Whitehead went to lock the partially open front door. As

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she attempted to lock the door, a man forced his way through the door and into her apartment. Whitehead testified that the man hit her in the face and choked her with her necklace. When her necklace broke, the man began choking her with his hands. Whitehead recalled falling to the ground and the attacker getting on top of her and choking her with his hands. She lost consciousness and when she came to, her roommate's boyfriend, Benjamin Seastrunk, and the apartment maintenance man were pulling the man off her. Whitehead believed she scratched the man while trying to defend herself. She was unable to recall how or when the man left the scene. Whitehead's roommate, Lauren Coon, called law enforcement. Whitehead could not identify Appellant as her attacker, but recalled the attacker was a tall, black, bald male. Whitehead testified she believed the attacker's family lived in the apartment next door, because after the attack she went outside to smoke a cigarette and the residents of the apartment threatened to "beat her up" if "the law got called."

Coon testified she was upstairs at a neighbor's apartment during the burglary. Coon heard loud banging noises and returned to her apartment where she found Whitehead on the ground with a man on top of her and his hands around her throat and his knees on her chest. Coon recognized the man because she had seen him "around the apartments" but she did not know his name. Coon testified the man was a light skinned black male with a bald head, wearing no shirt and a pair of dark shorts. She described the man as between five feet six inches and five feet eight inches tall with a small to medium, but muscular build. Coon testified that Seastrunk recalled observing tattoos on the man. She testified that the man left the apartment on foot and walked to the right of the apartment building. Coon called law enforcement, reported the burglary, and gave the emergency services dispatcher the man's physical description and direction of travel. Coon testified the attacker's family members, who resided next door, refused to tell her the attacker's name.

Tyler Police Department Officer Adam Riggle responded to the scene and spoke with Whitehead, Coon, and Seastrunk. Riggle testified that the three individuals collectively described the attacker as a light skinned black male, bald headed, short in stature, muscular in build, wearing dark shorts but no shirt, with visible tattoos, and a hairy chest. Riggle broadcasted the attacker's description to other officers in the area who were searching for the suspect.

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Officers Joshua Darty and Joshua Allen both testified they were en route to the Kennedy Avenue apartment complex when Riggle asked them to search the nearby area for the suspect, who was reported to be on foot. Darty testified they located Appellant shortly after receiving Riggle's description. Appellant was found walking on a sidewalk within a block or two of the Kennedy Avenue apartment complex. Allen and Darty testified that Appellant matched the description of the attacker and was traveling on foot in the direction of travel described by Coon.

Both Darty and Allen wore body cameras that captured video and audio footage of their contact with Appellant. This footage was introduced at trial. The footage confirms that Appellant matched the suspect description given by Whitehead, Coon, and Seastrunk. The footage showed Darty approach Appellant and tell him he matched the description of an...