Daniel Boss v. State

• Court: Court of Appeals of Texas
• Decided: March 26, 2009
• Docket: 02-08-00043-CR
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 2-08-043-CR

DANIEL BOSS APPELLANT

V.

THE STATE OF TEXAS STATE

------------

FROM THE 16TH DISTRICT COURT OF DENTON COUNTY

MEMORANDUM OPINION 1

I. Introduction

Appellant Daniel Boss appeals his conviction for burglary of a habitation.

In four issues, he challenges the sufficiency of the evidence, the trial court’s

indigence finding, remarks by the State during voir dire, and the trial court’s

1 … See Tex. R. App. P. 47.4. refusal at an abatement hearing to let appellant testify about claims he made

in a motion for new trial. We affirm.

II. Facts

The garage to David Bonner’s home in Carrollton, Denton County, Texas,

faces an alley behind his house. On March 25, 2007, in the early afternoon,

the garage door was open, and David was working behind a wooden privacy

fence in his backyard when he saw through the slats a woman carrying his golf

clubs from the garage into the alley.

David dashed into the alley after her. He caught up after she had thrown

the clubs into the bushes. David asked her why she had taken his clubs, and

after initially denying that she had, she explained that she thought they were

hers that had been stolen earlier.

David asked her to return his clubs to the garage, and she was about to

but hesitated when David’s wife, who had followed David into the alley,

announced that she was going to call the police. The woman declared that she

did not want to go to jail and turned around, walking back down the alley.

David followed her as appellant, driving a green Mitsubishi Eclipse,

entered the alley and rolled slowly toward them. David asked appellant if he

knew the woman and if he was with her. Appellant denied knowing her and

continued down the alley and onto the adjoining street. As the car passed by,

2 the Bonners noticed that the backseat was loaded with “electronic

components.” David followed the woman another several minutes before

returning home.

In the meantime, a neighbor had called the police. Carrollton Police

Officer Joseph Nault arrived with officer-in-training Francisco Reyes and

interviewed the Bonners.

Very shortly thereafter, in the nearby Castle Hills neighborhood of

Lewisville, Texas, Jeff Deserrano drove the family SUV into the garage from the

alley behind their home after a weekend outing at the lake. His wife and

children climbed out and into the family’s other car for a trip to the grocery

store while Jeff stayed behind to unload the boat and the SUV.

He was going back and forth between the house and garage when he

noticed appellant just outside the garage with his back to him. Jeff asked,

“What are you doing? Can I help you?” Appellant responded by asking if Jeff

had seen a dog and nervously ran around as if looking for a dog. Jeff noticed

a green Mitsubishi Eclipse with a woman in the passenger seat parked in the

alley behind the house. Suspicious, Jeff memorized the car’s license plate and

asked appellant for his telephone number in case the dog showed up. Appellant

refused, telling Jeff to just hold on to the dog if he found it. He then climbed

into the car with the woman and drove away. Jeff called the police and went

3 back into the garage to see if anything was missing. He noticed that his golf

clubs had been displaced from the rack where he usually kept them.

Lewisville Police Officer Steve Schaffer responded to a dispatch that

described suspicious persons in a green Mitsubishi Eclipse in the Castle Hills

neighborhood. As Officer Schaffer headed toward the Deserranos’ home, he

saw appellant’s car approaching in the far left-hand lane on the other side of

the divided roadway. As the cars met and passed, Officer Schaffer made a U-

turn to get behind the Eclipse. Without signaling, appellant immediately crossed

the center lane into the far right-hand lane and turned onto the next street.

With the officer in pursuit, appellant accelerated, finally stopping in Carrollton

after Officer Schaffer had activated his emergency lights and siren.

Officer Nault was preparing his report after meeting with the Bonners

when Lewisville police requested assistance on a stop in Carrollton. The car’s

description matched the one that the Bonners had given. Officer Nault drove

to the site where Lewisville officers had pulled over appellant and Jodie Lynn

Miller, a woman matching the description the Bonners had given of the woman

who had taken David’s clubs.

An officer transported the Bonners from their home to the stop,

whereupon they immediately recognized the green Eclipse, appellant, and Miller,

despite her having changed her clothes and put up her hair.

4 In the Eclipse, officers found a VCR, a stereo, and a pink shirt and flip

flops that Miller had worn while taking David’s golf clubs.

Officer Schaffer took digital photographs of appellant, the car, and Miller

to the Deserranos’ home and showed the photographs to Jeff, who identified

appellant as the man he had seen standing outside his garage and Miller as the

woman he had seen in the green Eclipse.

Appellant was charged with burglary of a habitation. At trial, the jury

was authorized to convict him as a party and returned a verdict of guilty. The

State presented punishment evidence of appellant’s multiple prior convictions,

and the jury assessed punishment at ninety-nine years’ confinement. The trial

court sentenced appellant accordingly.

III. Legal and Factual Sufficiency

Appellant’s first issue on appeal challenges the legal and factual

sufficiency of the evidence to support the verdict.

A. Standards of Review

In reviewing legal sufficiency, we consider all the evidence in the light

most favorable to the verdict and determine whether a rational juror, based on

the evidence and reasonable inferences supported by the evidence, could have

5 found the essential elements of the crime beyond a reasonable doubt. 2 We

defer to the “responsibility of the trier of fact to fairly resolve conflicts in

testimony, to weigh evidence, and to draw reasonable inferences from basic

facts to ultimate facts.” 3 The jury is permitted to draw multiple inferences as

long as each inference is supported by the evidence presented at trial. 4 Each

fact need not point directly and independently to appellant’s guilt, as long as

the cumulative force of all the incriminating circumstances is sufficient to

support the conviction. 5 Circumstantial evidence is as probative as direct

evidence in establishing guilt, and circumstantial evidence alone can be

sufficient to support a conviction.6 On appeal, the standard of review is the

same for both circumstantial and direct evidence cases. 7

2 … Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). 3 … Jackson, 443 U.S. at 318–19, 99 S. Ct. at 2789; Hooper, 214 S.W.3d at 13. 4 … Hooper, 214 S.W.3d at 15. 5 … Id. at 13; see Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993), cert. denied, 511 U.S. 1046 (1994). 6 … Clayton, 235 S.W.3d at 778; Hooper, 214 S.W.3d at 13; Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). 7 … Hooper, 214 S.W.3d at 13; Guevara, 152 S.W.3d at 49.

6 When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party. 8

We then ask whether the evidence supporting the conviction, although legally

sufficient, is nevertheless so weak that the factfinder’s determination is clearly

wrong and manifestly unjust or whether conflicting evidence so greatly

outweighs the evidence supporting the conviction that the factfinder’s

determination is manifestly unjust. 9 To reverse under the second ground, we

must determine, with some objective basis in the record, that the great weight

and preponderance of all the evidence, though legally sufficient, contradicts the

verdict.10

In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by evidence that is legally sufficient,

it is not enough that this court “harbor a subjective level of reasonable doubt

to overturn [the] conviction.” 11 We cannot conclude that a conviction is clearly

8 … Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 1037 (2009); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). 9 … Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008); Watson, 204 S.W.3d at 414–15, 417. 10 … Watson, 204 S.W.3d at 417. 11 … Id.

7 wrong or manifestly unjust simply because we would have decided differently

than the jury or because we disagree with the jury’s resolution of a conflict in

the evidence. 12 We may not simply substitute our judgment for the

factfinder’s.13 Unless the record clearly reveals that a different result is

appropriate, we must defer to the jury’s determination of the weight to be given

contradictory testimonial evidence because resolution of the conflict “often

turns on an evaluation of credibility and demeanor, and those jurors were in

attendance when the testimony was delivered.” 14 Thus, we must give due

deference to the factfinder’s determinations, “particularly those determinations

concerning the weight and credibility of the evidence.” 15 Our deference in this

regard safeguards the defendant’s right to a trial by jury. 16 An opinion

addressing factual sufficiency must include a discussion of the most important

and relevant evidence that supports the appellant’s complaint on appeal. 17

Moreover, an opinion reversing and remanding on factual sufficiency grounds

12 … Id. 13 … Johnson v. State, 23 S.W.3d 1, 12 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). 14 … Johnson, 23 S.W.3d at 8. 15 … Id. at 9. 16 … Lancon, 253 S.W.3d at 704. 17 … Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

8 must detail and clearly state why the finding in question is factually insufficient

and under which ground.18

B. Elements of Burglary of a Habitation

A person commits burglary of a habitation when, without the effective

consent of the owner, the person enters a habitation with intent to commit

theft.19 A habitation is a structure adapted for the overnight accommodation

of persons and includes each connecting structure.20 A garage is a habitation.21

C. Criminal Responsibility for Burglary of a Habitation as a Party

In proving burglary of a habitation under the law of parties, it is not

necessary that the defendant be the one who enters the building.22 A person

may be convicted of burglary as a party “if, acting with intent to promote or

assist the commission of the burglary, he solicits, encourages, directs, aids, or

18 … Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001); Johnson, 23 S.W.3d at 7. 19 … Tex. Penal Code Ann. § 30.02(a)(1) (Vernon 2003). 20 … Id. § 30.01(1)(B). 21 … Jones v. State, 532 S.W .2d 596, 599 (Tex. Crim. App. 1976), overruled on other grounds by Blankenship v. State, 780 S.W.2d 198, 210 (Tex. Crim. App. 1989); Johnson v. State, 690 S.W.2d 318, 320 (Tex. App.—Dallas 1985, pet. ref’d). 22 … Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006).

9 attempts to aid” another person to commit the burglary.23 The intent to

promote or assist in the commission of the offense goes to each element of the

offense charged.24 We look at “events occurring before, during and after the

commission of the offense and may rely on actions of the defendant which

show an understanding and common design to do the prohibited act.” 25

D. Analysis

The record shows that David Bonner saw Miller leaving his garage with

his golf clubs. Miller was wearing a pink shirt and pink flip flops. As David was

confronting Miller, he and his wife saw appellant drive past them in a green

Mitsubishi Eclipse with electronics in the back.

Approximately a half-hour later, Jeff Deserrano saw appellant standing

just outside his garage door. Appellant said he was looking for his dog but

would not give Jeff any contact information in case the dog showed up.

Instead, he told Jeff to hold on to the dog if he found it. Appellant climbed into

23 … See Tex. Penal Code Ann. § 7.02(a)(2); Hooper, 214 S.W.3d at 13; Frank v. State, 183 S.W.3d 63, 72 (Tex. App.—Fort Worth 2005, pet. ref’d). 24 … See Stephens v. State, 717 S.W.2d 338, 340 (Tex. Crim. App. 1986); Duke v. State, 950 S.W.2d 424, 427 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d). 25 … Hooper, 214 S.W.3d at 13 (quoting Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985), cert. denied, 476 U.S. 1101 (1986)).

10 a green Mitsubishi Eclipse and drove away. Jeff subsequently noticed that his

golf clubs had been moved from their rack in his garage.

Officer Schaffer stopped a green Mitsubishi Eclipse close by and heading

away from Jeff’s home that matched the description and license plate number

Jeff had provided. Miller was in the passenger seat. Because she matched the

Bonners’ description of the woman who had taken David’s golf clubs, the

officers picked up the Bonners and brought them to the stop, whereupon the

Bonners immediately recognized Miller, the green Mitsubishi Eclipse, and

appellant. Miller had changed her clothes and put her hair up. Inside the car,

officers found the pink shirt and flip flops that the Bonners saw Miller wearing

when she took David’s golf clubs. We hold that the evidence is legally

sufficient to support the jury’s finding that appellant is guilty as a party of

burglary of a habitation because a rational jury could reasonably believe beyond

a reasonable doubt that appellant aided or attempted to aid Miller to commit

burglary at the Bonners’ home by driving the getaway car. 26

Having found the evidence legally sufficient, we now address appellant’s

factual insufficiency claim. There is evidence in the record that arguably does

not support appellant’s participation as a party to the burglary committed by

26 … See Tex. Penal Code Ann. §§ 7.02(a)(2), 30.02(a)(1); Hooper, 214 S.W.3d at 13; Frank, 183 S.W.3d at 72.

11 Miller. Appellant told Jeff he was looking for his lost dog; Miller told Jeff that

his dog’s barking would attract their dog; appellant told officers that they had

gone out to clean the car, became lost, and that their dog had run away when

they switched drivers; Miller told Officer Nault that she and appellant were lost

and trying to find their dog; appellant said that he and Miller were in the alley

earlier looking for the dog; appellant said they were looking for the dog when

Jeff came out of his house to help; and the electronics found in appellant’s car

were not reported as stolen.

We defer to the jury’s apparent rejection of appellant’s story about the

dog as a ploy to deflect suspicion and hold that the evidence not supporting the

verdict does not outweigh the evidence supporting the conviction so as to

render the factfinder’s determination manifestly unjust. 27 We further hold that

the evidence supporting the verdict is not so weak that the judgment is “clearly

wrong and manifestly unjust.” 28

Having held the evidence legally and factually sufficient, we overrule

appellant’s first issue.

27 … Watson, 204 S.W.3d at 414–15, 417; Johnson, 23 S.W.3d at 11. 28 … Watson, 204 S.W.3d at 414–15, 417.

12 IV. Indigence

Appellant’s second issue challenges the trial court’s finding that appellant

was not indigent for purposes of appeal and therefore not entitled to a court-

appointed attorney or to a record at county expense. Without deciding whether

the trial court abused its discretion by finding that appellant was not indigent,

we hold that appellant has not been harmed.

Appellant was represented by retained counsel at trial and is represented

by retained counsel on appeal. After trial counsel filed appellant’s notice of

appeal, appellant’s appellate counsel filed a motion for new trial and motion in

arrest of judgment. Appellate counsel then filed in this court a motion to enter

an appearance as retained counsel on appeal, and trial counsel filed a motion

to withdraw and substitute appellate counsel, which this court granted.

Appellate counsel asked us to abate the appeal to the trial court to

conduct a hearing on appellant’s motion for new trial. We granted the motion

to abate and requested the trial court to conduct a hearing to determine, among

other things, whether appellant was indigent. At the abatement hearing,

appellant testified that his mother retained counsel for him because he had no

money and could not afford to pay for appellate counsel.

Retained appellate counsel has filed an appellant’s brief and the reporter’s

record has been prepared and paid for. Therefore, even if the trial court abused

13 its discretion by finding appellant is not indigent, we can say beyond a

reasonable doubt that the error, if any, of the trial court has not harmed

appellant on appeal.29 We overrule appellant’s second issue.

V. Voir Dire

In his third issue, appellant contends that some of the prosecutor’s

comments during voir dire improperly implied that appellant was a habitual

criminal. We hold that appellant’s issue is inadequately briefed. Apart from

bare assertions, appellant does not explain with any specificity which of the

prosecutor’s remarks implied he was a habitual criminal and how they did so.

Further, appellant does not cite any authority or analysis to demonstrate that

any such implication would be error. We overrule appellant’s third issue.30

VI. Motion for New Trial Testimony Excluded at Abatement Hearing

Appellant’s fourth issue asserts that the trial court erred by not allowing

him to testify on his motion for new trial at the abatement hearing ordered by

this court. When an accused presents a motion for new trial raising matters not

29 … See Tex. R. App. P. 44.2(a); see generally, Cooks v. State, 240 S.W.3d 906, 911 (Tex. Crim. App. 2007) (holding that deprivation of counsel during a critical stage was subject to harmless-error analysis). 30 … See Tex. R. App. P. 38.1(h); Tong v. State, 25 S.W.3d 707, 710 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 1053 (2001); Sierra v. State, 157 S.W.3d 52, 60 (Tex. App.—Fort Worth 2004), aff’d, 218 S.W.3d 85 (Tex. Crim. App. 2007) (holding that a one paragraph argument citing no authority was inadequately briefed).

14 determinable from the record, which could entitle him to relief, the trial court

abuses its discretion by failing to hold a hearing.31 The motion must, however,

be supported by affidavit specifically showing the truth of the grounds of

attack.32 Here, although appellant filed a motion for new trial and a

supplemental motion for new trial, none of the motions were supported by

affidavit. We hold, therefore, that the trial court acted within its discretion by

denying appellant a hearing on his motion for new trial. 33 We overrule

appellant’s fourth issue.

VII. Conclusion

Having overruled all of appellant’s issues, we affirm the judgment.

PER CURIAM

PANEL: CAYCE, C.J.; LIVINGSTON and MEIER, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: March 26, 2009

31 … Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993). 32 … Id. 33 … See id.