Higginbotham v. State

919 S.W.2d 502, 1996 Tex. App. LEXIS 1420, 1996 WL 167878
CourtCourt of Appeals of Texas
DecidedApril 11, 1996
DocketNo. 2-94-285-CR
StatusPublished
Cited by5 cases

This text of 919 S.W.2d 502 (Higginbotham v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Higginbotham v. State, 919 S.W.2d 502, 1996 Tex. App. LEXIS 1420, 1996 WL 167878 (Tex. Ct. App. 1996).

Opinion

OPINION

MILLER, Justice, sitting by assignment.

Appellant Clifton Howard Higginbotham was indicted for the offense of burglary of a building, enhanced by two prior convictions. After a trial by jury on a not guilty plea, he was found guilty and, after pleading true to both enhancement paragraphs, was assessed a punishment by the jury of forty years in the Institutional Division of the Texas Department of Criminal Justice. On appeal, Higginbotham brings two points of error complaining that the evidence is insufficient and that reversible error occurred when an extraneous offense was admitted. We affirm.

[503]*503Because the sufficiency of the evidence is challenged, we will first review the evidence adduced at trial. On November 10, 1993, a tool shed located next to the home of its owner, Charles Washington, was burglarized and tools were taken. On the day of the burglary, Fort Worth Police Officer McClain arrived at the scene and saw Higginbotham walking away from the tool shed carrying some tools. Officer McClain stopped Higginbotham by Higginbotham’s car. Washington arrived and identified the tools and tool boxes in and around the car as his. Washington then examined the shed and found the lock tom off. At trial, Washington stated that all the identified tools were locked in the tool shed the previous night. Higginbotham testified at trial that he had bought the tools from someone else behind the tool shed and had not broken into or entered the shed itself. Higginbotham’s version of events was partially rebutted by the testimony of Kathleen Moore, a convenience store operator.

Before analyzing the evidence in this case, we pause to respond to Higginbotham’s argument in his brief that there have been two separate standards by which to measure sufficiency that have been used interchangeably by the Court of Criminal Appeals. He maintains that the standard of review set out in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979), that courts view the evidence in the light most favorable to the verdict in order to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt is different from the Court of Criminal Appeals’ directive to compare the evidence at trial to the court’s entire charge as stated in Jones v. State, 815 S.W.2d 667 (Tex.Crim.App.1991).

First of all, the Jackson standard was clearly adopted by the Court of Criminal Appeals two years before Jones in the well-analyzed case of Butler v. State, 769 S.W.2d 234 (Tex.Crim.App.1989). The Court traced the history of sufficiency review from the earlier “no evidence” standard of Thompson v. City of Louisville, 362 U.S. 199, 202, 80 S.Ct. 624, 625, 4 L.Ed.2d 654, 657 (1960) through the “proof beyond a reasonable doubt of every fact necessary” standard of In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375 (1970) up to the present Jackson standard: “To recapitulate, the test as delineated in Jackson requires us, as the reviewing court, to determine whether ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ Jackson, 443 U.S. at 319, 99 S.Ct. at 2789.” Butler, 769 S.W.2d at 239. The Court stated that circumstantial evidence and direct evidence cases are subject to that same Jackson standard of review. Id. at 238. Thus, in considering a claim that the Court of Criminal Appeals has adopted a different standard of review than the Jackson standard, we will be mindful of the allegiance to and the awareness of the Jackson standard that the Court has demonstrated.

Actually, it was much earlier than in Jones that Texas jurisprudence was refined to conform to the Jackson standard. In Garrett v. State, 749 S.W.2d 784 (Tex.Crim.App.1986), the Court of Criminal Appeals implicitly sanctioned a multi-faceted analysis of Jackson applied by the lower appellate court. The Court of Criminal Appeals held that because the theory of transferred intent was not in the application paragraph of the jury charge, it could not be used in measuring the sufficiency of the evidence. Id. at 788-90. Though the theory need not be pleaded in the indictment in order to be a valid theory of culpability, it must have been included explicitly or by reference in the application paragraph. Thus, the Court held that “[t]he court of appeals was correct in concluding that sufficiency of the evidence must be measured against that theory of murder which was submitted to the jury.” Garrett, 749 S.W.2d at 789. In so holding, the Court recalled that it earlier assumed in Benson v. State, 661 S.W.2d 708 (Tex.Crim.App.1982), cert. denied, 467 U.S. 1219, 104 S.Ct. 2667, 81 L.Ed.2d 372 (1984), that sufficiency of the evidence must be measured against the indictment “as incorporated into the charge.” Garrett, 749 S.W.2d at 788.

In Jones, cited by both Higginbotham and the State, the Court of Criminal Appeals, in a [504]*504ease involving the law of parties not being mentioned in the application paragraph, maintained that it is the application paragraph alone that is the measuring stick for sufficiency of the evidence questions. Jones, 815 S.W.2d at 670; see also Plata v. State, 875 S.W.2d 344, 346 (Tex.App.—Corpus Christi 1994, pet. granted); Brown v. State, 888 S.W.2d 216, 217 (TexApp.—Amarillo 1994, no pet.); Kephart v. State, 888 S.W.2d 825, 829-30 (Tex.App.—San Antonio 1993), rev’d on other grounds, 875 S.W.2d 319 (Tex.Crim.App.1994).

If there was a question about whether the Jones test was the one that had the imprimatur of the Court of Criminal Appeals stamped upon it, the question was squarely put to rest in Walker v. State, 823 S.W.2d 247 (Tex.Crim.App.1991), cert. denied, 503 U.S. 939, 112 S.Ct. 1481, 117 L.Ed.2d 624 (1992). In that case, a majority of the Court squarely held that the application paragraph contains the entirety of the theory of culpability that the jury is instructed to convict upon and that the sufficiency of the evidence is to be measured against. Id. at 248.

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919 S.W.2d 502, 1996 Tex. App. LEXIS 1420, 1996 WL 167878, Counsel Stack Legal Research, https://law.counselstack.com/opinion/higginbotham-v-state-texapp-1996.