Jackson v. State

676 S.W.2d 601, 1983 Tex. App. LEXIS 4695
Court of Appeals of Texas·Decided July 14, 1983·No. No. C14-81-774CR·Published·Cited by 1 cases

Opinions

MURPHY, Justice.

A jury found James Jackson (Appellant) guilty of burglary of a building. The sole issue on appeal is whether the evidence, which was totally circumstantial in nature, was sufficient to sustain the conviction. We hold the evidence was insufficient, reverse the conviction and remand this cause to the trial court with instructions to enter a judgment of acquittal.

On March 13, 1981, Shirley’s Lounge at 2207 Lockwood in Houston was burglarized. A number of items, including a jar of pickled pigs’ feet, were taken from the building. An eyewitness, Sabrina Bou-dreaux, called Curtis Payne, a business associate of the owner, Shirley Fontenot, to report the burglary. Albert Julien and Larry Dodson subsequently were arrested at the apartment of Evelyn Motton. The arresting officers were called back to Shirley’s Lounge where Curtis Payne and Shirley Fontenot informed them that Appellant had also been involved in the burglary and provided a description of him. Appellant was arrested later that night in the parking lot of the Della Motel, a known location for the transfer of stolen property, as he and several other people were sitting in a car owned and driven by Ben Johnson.- At the time of the arrest, Appellant was eating a pickled pig’s foot and a jar of pickled pigs’ feet was near him in the back seat of the car. The policemen took Appellant and the jar of pigs’ feet to Shirley’s Lounge, where Curtis Payne identified the label on the jar of pigs’ feet as the same brand as those sold by the lounge.

At trial Sabrina Boudreaux testified that she saw only Larry Dodson and Albert Julien at the scene of the crime. Curtis Payne testified that he saw two men leaving the building and noticed a third person outside, but he was unable to identify any of them.

The testimony of Evelyn Motton was critical to Appellant’s conviction. She stated that on the night of the crime, she overheard a conversation in her apartment between Larry Dodson, Albert Julien, and Appellant, in which the three men were discussing the burglary of “a place.” She stated she heard Appellant say “he didn’t care how he got the money — he would do it anyway.” Motton at first testified she left her apartment for approximately thirty minutes and when she returned, Dodson, Julien, Appellant and another man, Ben Johnson, were there with several articles, including some pickled pigs’ feet. At another point in her testimony, however, she said she was there with Dodson, Julien and Appellant when Ben Johnson entered her apartment and joined the group. She said the police did not conduct a search of her apartment when they came to arrest Dodson and Julien, and she and Appellant moved the goods to a vacant apartment in the same building. She also stated that later the same night when she returned to the vacant apartment, the goods were not there, and only she and Appellant had known their location. She offered no explanation of Ben Johnson’s role in the sequence of events.

Toward the end of the trial, Motton was recalled to testify. In describing how the stolen goods were moved to the vacant apartment, she stated:

A: ... I told them just put them (the goods) in the apartment ... I told them to put it in the ...
Q: You told who?
A: I told James.
Q: You told James to put it in the apartment?
[604]*604A: Yes.
Q: You wanted to get it out of your house, didn’t you?
A: Yes.

(Emphasis added).

It is obvious that Motion’s second testimony indicates that someone in addition to Appellant was involved in moving the goods.

Defense witnesses included Terry Lynn Marlboro and Albert Julien, both of whom were serving prison terms at the time of trial. Marlboro, who was in Ben Johnson’s car with Appellant when he was arrested, testified that Johnson stopped to pick up Appellant at the corner of Harlem and Lyons Ave. Marlboro said they bought the jar of pigs’ feet from an unidentified person whom they had encountered while driving around. Appellant’s account of how the group came into possession of the pigs’ feet was consistent with Marlboro’s testimony.

Albert Julien testified only he and Larry Dodson were involved in the burglary; that Appellant was not in Motion’s apartment planning the crime; and that Appellant arrived at the apartment only five minutes before the police.

The court overruled Appellant’s motion for an instructed verdict of acquittal. The charge to the jury contained a proper instruction on circumstantial evidence. Appellant was found guilty and was sentenced to five years’ imprisonment. In his sole ground of error, Appellant contends the circumstantial evidence introduced at trial was insufficient to support the conviction.

The burden of proof in a circumstantial evidence case is the same as in any criminal prosecution: the state must prove each element of the offense charged beyond a reasonable doubt. TEX.CODE CRIM.PROC.ANN. art. 38.03 (Vernon 1979). Proof which creates only a strong suspicion that the accused committed the offense is not sufficient. Freeman v. State, 647 S.W.2d 271, 274 (Tex.Crim.App.1983). The evidence must establish guilt of the accused “to a moral certainty, so as to exclude all reasonable doubt” in the mind of the trier of fact. Id. at 275.

The correlative concepts of reasonable doubt and moral certainty appeared in a frequently quoted passage from the venerable case of Commonwealth v. Webster:

Then, what is reasonable doubt? It is a term often used, probably pretty well understood, but not easily defined. It is not mere possible doubt; because every thing relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case, which ... leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge...
(T)he evidence must establish the fact to a reasonable and moral certainty; a certainty that convinces and directs the understanding, and judgment, of those who are bound to act consciously upon it. This we take to be proof beyond a reasonable doubt; because if the law, which mostly depends upon considerations of a moral nature, should go further than this, it would exclude circumstantial evidence altogether.

Commonwealth v. Webster, 59-60 Mass. 295, 320 (1850).

Participation in a criminal enterprise may be inferred from the circumstances, and thus need not be shown by direct evidence. Freeman v. State, 647 S.W.2d at 274. But see Carlsen v. State, 654 S.W.2d 444 at 447 (Tex.Crim.App.1983) (absence of direct proof of participation in theft created reasonable doubt). However, every basic circumstances from which an ultimate fact may be inferred must be proved by direct evidence, so an inference may not be based on an inference. Spencer v. State, 628 S.W.2d 220, 225 (Tex.App.—Corpus Christi 1982, pet. ref’d); Williamson v. State, 156 Tex.Cr. 520, 244 S.W.2d 202, 204 (1951).

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Jackson v. State, 676 S.W.2d 601, 1983 Tex. App. LEXIS 4695 (Tex. Ct. App. 1983).

676 S.W.2d 601 (Jackson v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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