NUMBERS 13-10-00349-CR AND 13-11-00242-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JOHN PAUL RICHMOND, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court of Victoria County, Texas.
MEMORANDUM OPINION Before Chief Justice Valdez and Justices Garza and Perkes Memorandum Opinion by Justice Perkes
In cause 13-10-00349-CR, appellant, John Paul Richmond, appeals the trial
court’s judgment revoking his deferred-adjudication community supervision and
convicting him of the original offense, unlawful possession of a prohibited weapon, a
third-degree felony. See TEX. PENAL CODE ANN. § 46.05(a)(3) (West 2011) (making it an
offense to intentionally or knowingly possess, manufacture, transport, repair, or sell a
short-barrel firearm). The trial court sentenced appellant to five years of confinement in the Texas Department of Criminal Justice, Institutional Division, and imposed a probated
$500 fine. By a single issue in cause 13-10-00349-CR, appellant argues the evidence at
the revocation hearing was insufficient to prove he violated the terms of his community
supervision by committing theft or burglary of a building on or about January 15, 2010.1
We affirm.
In cause 13-11-00242-CR, appellant appeals his conviction for theft, a state-jail
felony. See id. § 31.03(a) & (e)(4)(A). Following a jury trial, appellant was found guilty
and sentenced to eighteen months of confinement in the Texas Department of Criminal
Justice, Institutional Division and ordered to pay a $6,000 fine, $1,944 in court costs, and
$11,700 in restitution. By a single issue in cause 13-11-00242-CR, appellant argues the
evidence is insufficient to support his theft conviction. Appellant was charged by
indictment with the theft of an all-terrain vehicle, a riding lawnmower, a skeet thrower, and
a welding machine from Brian Bruns, on or about January 15, 2010. The property was
alleged to have a value of $1,500 or more, but less than $20,000. We affirm.
Although no motion to consolidate these appeals has been filed, in the interest of
judicial economy we issue a single opinion herein disposing of both appeals. We do so
because our review of the records shows that the same facts and similar legal issues are
involved in both appeals.
1 The State’s first amended motion to revoke community supervision alleged that appellant violated the conditions of his community supervision in the following ways: (1) committed the offense of driving while his license was suspended; (2) committed the offense of theft in Victoria County; (3) committed the offense of burglary of a building in Victoria County; (4) tested positive for methamphetamines; and (5) failed to successfully complete the Aggression Control Program. The trial court held that the evidence was insufficient to show a violation of the above referenced first and fifth allegations. The trial court did not rule on the fourth allegation.
2 I. FACTUAL BACKGROUND
A. Testimony Presented at the Revocation Hearing and the Theft Trial
Bruns testified that on January 16, 2010, he discovered that someone had broken
into a metal building on his country property in Victoria County, Texas, and stolen
everything inside. The stolen items included a utility trailer, three four-wheelers, a blue
welding machine, a green “Do-All” skeet thrower, and a black Poulan riding lawnmower
with a yellow mowing deck. According to Bruns’s testimony, tire tracks and a hole cut in
the fence surrounding the property showed that the person who stole the items drove
them off of the property using a trailer, exiting through the hole in the fence.
Adelmiro Cantu testified that he ran into appellant at about 7:00 p.m. on January
15, 2010, one day prior to Bruns’s discovery of the burglary. Appellant was on the
property of Adelmiro’s nephew, Rolando Cantu, in Goliad County, about nine miles from
Bruns’s property. Adelmiro was going to the property to place some corn for a hog hunt
he planned to have the next day, when he saw appellant. Adelmiro called Rolando, who
was out of town in Laredo, Texas, and told him somebody was on his property. Rolando
told Adelmiro it was appellant.2 Adelmiro described appellant as a family friend.3
After confirming it was appellant on the property, Adelmiro entered Rolando’s
property and saw appellant driving a Chevy pick-up truck that was being used to pull a
black trailer loaded with a large Polaris four-wheeler, a smaller four-wheeler, a black
2 At the revocation hearing and at trial, Adelmiro testified that Rolando told him that appellant was on the property to pick up some “stuff” appellant bought through eBay. In both proceedings, appellant’s counsel objected after Adelmiro testified and the objection was sustained. At trial, the trial court instructed the jury to disregard the portion of Adelmiro’s testimony that included the eBay reference. 3 Adelmiro described the complainant, Brian Bruns, as a friend or acquaintance who worked with Adelmiro’s son, but he did not know Bruns as well as he knew appellant.
3 riding lawn mower with a yellow deck, and a blue welding machine. Adelmiro stopped
and talked with appellant for a minute or two.4
Several days later, Adelmiro learned that the Bruns property had been broken into
and that several four-wheelers were stolen. Adelmiro’s son worked with Bruns and his
son gave Adelmiro a list of the missing property. Adelmiro recognized from the list the
two four-wheelers, the riding lawn mower, and the welding machine he had seen on
appellant’s trailer. The list was admitted into evidence.
On January 20, 2010, Adelmiro returned to Rolando’s property in Goliad County to
look for other items on the list of stolen property. While Adelmiro was there, he noticed
that a gray tarp that he used for a barbeque a few days earlier was missing. The tarp
was found about 100 yards from where it had been when Adelmiro last saw it, near some
round bales of hay, covering a green skeet throwing machine. Adelmiro recognized the
skeet-throwing machine as an item on the list of stolen property and photographed the
machine. Adelmiro searched for more items, and found tracks that led from the skeet-
throwing machine to a box. A four-wheeler was found inside the box, which Adelmiro
also photographed. The four-wheeler was identified as a 90cc Kazuma model, the same
as the other four-wheeler on the list of stolen property.
Adelmiro called his nephew, Rolando, who owned the property where Adelmiro
found the stolen items. Rolando had been out of town, in Laredo, during the time that the
stolen items were placed on his property. Adelmiro told Rolando about finding the items
and believing that appellant had stolen them. Adelmiro told Rolando to call appellant 4 At the revocation hearing, Adelmiro testified that during his brief conversation with appellant on January 15, 2010, appellant told Adelmiro he was headed to the [Rio Grande] “[V]alley area” of Texas. Adelmiro did not mention this fact in his trial testimony.
4 and get him to return the stolen property. Adelmiro waited two days to give appellant a
chance to return the property. When nothing was returned, Adelmiro shared his
information with Bruns.5
Bruns identified the photographs Adelmiro took of the skeet-throwing machine and
the Kazuma four-wheeler as depicting his property. Bruns was able to identify the
four-wheeler because the photographs showed evidence of specific repairs made to the
vehicle’s skid plate and left foot peg. Bruns also identified the skeet thrower in the
photograph as identical to the skeet thrower that was stolen from his shed.
Investigator Charles Williamson, of the Victoria County Sheriff’s Office, testified
that he contacted appellant by telephone on January 28, 2010. Investigator Williamson
asked appellant to come in to talk to him about the case. During the conversation,
Investigator Williamson also asked appellant if he was in possession of the trailer full of
stuff, and appellant denied being in possession of the trailer. Appellant told Investigator
Williamson he would come to the Sheriff’s Office to discuss the case further, but he never
did.6
5 At the revocation hearing, Adelmiro testified that when Rolando spoke with appellant about the items, appellant told Rolando he had “already gotten rid of the stuff.” At trial, Adelmiro did not testify regarding this point. 6 At the revocation hearing, Investigator Williamson testified that during his phone conversation with appellant, he told appellant about the case and that he was a suspect. At the revocation hearing, Investigator Williamson also testified that after appellant denied being in possession of the trailer, appellant then asked, ‘What trailer?’
At trial, an audio recording of the telephone conversation was admitted into evidence as State’s Exhibit 24. The conversation is less than a minute long. In it, Investigator Williamson told appellant, “We need to talk about some four-wheelers you were seen with on the 15th.” Appellant responded, “Yeah I know. Rolando called me and told me some stuff about it.” Appellant then told Investigator Williamson he would come to the Sheriff’s Office and talk to him the next morning. Investigator Williamson then asked whether appellant still had possession of the items seen on the trailer to which appellant responded, “No, sir. [pause] The stuff on the flatbed trailer?” Investigator Williamson then instructed appellant to come in to talk the next day and concluded the conversation. 5 Appellant testified at the revocation hearing, and excerpts of his testimony were
admitted at his theft trial. Appellant testified that on the night of January 15, 2010, he
was on Rolando’s property alone to do an inventory of hay bales and that he saw
Adelmiro. Appellant admitted that he was hauling a trailer with two all-terrain vehicles
that night, but claimed he was hauling them from his girlfriend Jennifer Alkek’s house to a
ranch in “the Valley.” Appellant denied hauling lawn mowers that night, first stating that
he was hauling two riding lawn mowers, but later testifying that he was not hauling any
lawn mowers. Appellant denied hauling a welding machine that night. He testified that
he owned several all-terrain vehicles, a welding machine, a compressor, and a trailer, and
that these items could all be found outside at Alkek’s property. In his testimony,
appellant also denied seeing the skeet thrower or the small all-terrain vehicles that were
found on Rolando’s property.
B. Additional Testimony Presented Only at the Theft Trial
At trial, Investigator Williamson described how he searched the property where
Alkek lived for the stolen items because he knew Alkek was appellant’s girlfriend. Alkek
lived on her father’s property. While several old four-wheelers were observed, none of
the stolen items were found on the premises.
Alkek testified that for about four months, including the time of the theft, appellant
sometimes stayed with her. The property was located less than a mile from Bruns’s
property. Alkek testified that appellant did not own a welding machine 7 or a riding
lawnmower. She said that the riding lawnmower at her home belonged to her father and
7 Concerning the welding machine, Alkek testified on direct-examination that she did not think appellant owned a welding machine. 6 was not black with yellow trim. She added that appellant never took her father’s riding
lawnmower off the property and did not haul it on a trailer.
Alkek further testified that she kept multiple four-wheelers on her father’s property.
Alkek initially testified that she had never seen appellant load one of the four-wheelers
and “take it down to the [Rio Grande] [V]alley.” However, she added that she had three
children and was busy with work. She said that on at least one occasion, appellant
loaded her big, dark blue Polaris-brand four-wheeler and took it somewhere. She did not
testify as to when this happened. On cross-examination, Alkek testified that two of the
four-wheelers on her father’s property belonged to her and two of them belonged to
appellant. She said that appellant had “a really big” gooseneck trailer that he kept on her
father’s property which he used to haul hay. She testified that she thought appellant
would sometimes borrow a different trailer from “Roli” to use for hay baling.
II. STANDARDS OF REVIEW
A. Judgment Revoking Community Supervision in Cause 13-10-00349-CR
The decision to proceed to adjudication of guilt and to revoke
deferred-adjudication community supervision is reviewable in the same manner as a
revocation of ordinary community supervision. See TEX. CODE CRIM. PROC. ANN. art.
42.12, § 5(b) (West 2011). We review an order revoking community supervision under
an abuse of discretion standard. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App.
2006); Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). In a community
supervision revocation hearing, an abuse of discretion occurs when the trial court's
decision was so clearly wrong as to lie outside that zone within which reasonable persons
might disagree. Wilkins v. State, 279 S.W.3d 701, 703–04 (Tex. App.—Amarillo 2007, 7 no pet.); Brumbalow v. State, 933 S.W.2d 298, 300 (Tex. App.—Waco 1996, pet. ref'd).
In a revocation proceeding, the State must prove by a preponderance of the evidence that
the defendant violated the terms and conditions of community supervision. Cobb v.
State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993); Cherry v. State, 215 S.W.3d 917, 919
(Tex. App.—Fort Worth 2007, pet. ref'd). A preponderance of the evidence means that
the greater weight of the credible evidence would create a reasonable belief that the
defendant violated a condition of his community supervision. Rickels, 202 S.W.3d at
763–64.
The trial court is the sole judge of the credibility of the witnesses and the weight to
be given their testimony, and we review the evidence in the light most favorable to the trial
court’s ruling. Cardona, 665 S.W.2d at 493; Garrett v. State, 619 S.W.2d 172, 174 (Tex.
Crim. App. [Panel Op.] 1981). If the State fails to meet its burden of proof, the trial court
abuses its discretion by revoking the community supervision. Cardona, 665 S.W.2d at
493–94. Proof by a preponderance of the evidence of any one of the alleged violations
of the conditions of community supervision is sufficient to support revocation. Moore v.
State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980); Sanchez v. State, 603
S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.] 1980).
B. Theft Conviction in Cause 13-11-00242-CR
Evidence is insufficient if, when viewed in a light most favorable to the verdict, a
rational jury could not have found each element of the offense beyond a reasonable
doubt. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (citing Jackson v.
Virginia, 443 U.S. 307 (1979)). In evaluating a legal-sufficiency challenge, we consider
all of the evidence and view it in the light most favorable to the verdict. Jackson, 443 8 U.S. at 319. The issue on appeal is not whether we, as a court, believe the State’s
evidence or believe that appellant’s evidence outweighs the State’s evidence. Wicker v.
State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned
unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v.
State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The trier of fact is the sole judge of
the credibility of the witnesses and of the strength of the evidence. Fuentes v. State, 991
S.W.2d 267, 271 (Tex. Crim. App. 1999). The trier of fact may choose to believe or
disbelieve any portion of the witnesses’ testimony. Sharp v. State, 707 S.W.2d 611, 614
(Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the trier of
fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47
(Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v.
State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997) (citing Jackson, 443 U.S. at 319).
We measure the sufficiency of the evidence by the elements of the offense as
defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327
(Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997)). Such a 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 defendant was tried. Id.
III. ANALYSIS
Appellant argues that the evidence is insufficient to prove he violated the terms of
his community supervision by committing theft or burglary of a building. Appellant further 9 argues that the evidence is insufficient to support his conviction for theft. We disagree
with appellant that the evidence adduced at the revocation hearing and at trial is
insufficient to support the trial court’s respective judgments.
In the revocation case, the State alleged that appellant violated condition 1 of his
community supervision by committing the offense of burglary of a building in Victoria
County, Texas, on or about January 15, 2010.8 In the trial court case, appellant was
charged with theft by indictment for unlawfully appropriating, by acquiring or otherwise
exercising control over, an all-terrain vehicle, a riding lawnmower, a skeet thrower, and a
welding machine from Brian Bruns, on or about January 15, 2010 in Victoria County,
Texas. A person commits the offense of burglary of a building if, without the effective
consent of the owner, the person enters a building not then open to the public, with intent
to commit a theft. TEX. PENAL CODE ANN. § 30.02(a)(1) (West 2011). A person commits
the offense of theft if he unlawfully appropriates property with the intent to deprive the
owner of property. Id. § 31.03(a). Appropriation of property is unlawful if it is without the
owner’s effective consent. Id. § 31.03(b)(1).
A defendant’s unexplained possession of recently stolen property gives rise to an
inference of theft. Hardesty v. State, 656 S.W.2d 73, 77 (Tex. Crim. App. 1983). This
8 In its judgment revoking appellant’s community supervision, the trial court found appellant violated “#1” “as set out in the State’s AMENDED Motion to Revoke Community Supervision.” In its first amended motion to revoke community supervision, the State alleged multiple separate violations of condition “#1” of appellant’s community supervision. These respective alleged violations included the offense of committing theft in Goliad County, Texas on or about January 15, 2010, and committing the offense of burglary of a building in Victoria County, Texas on or about January 15, 2010. Proof of a single violation by a preponderance of the evidence is sufficient to support revocation and because we find the evidence is sufficient to show the burglary offense in Victoria County, we need not consider the sufficiency of the evidence to show a theft offense in Goliad County. See TEX. R. APP. P. 47.1; Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980); Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.] 1980). Appellant does not argue or complain on appeal that the State was required to prove both of these alleged violations of his community supervision. 10 rule also applies to burglary cases because “a defendant’s unexplained possession of
property recently stolen in a burglary permits an inference that the defendant is the one
who committed the burglary.” Poncio v. State, 185 S.W.3d 904, 905 (Tex. Crim. App.
2006); see also Tabor v. State, 88S.W.3d 783, 786 (Tex. App.—Tyler 2002, no pet.);
Sweny v. State, 925 S.W.2d 268, 270–71 (Tex. App.—Corpus Christi 1996, no pet.).
Mere possession of stolen property does not give rise to a presumption of guilt, but
rather it will support an inference of guilt of the offense in which the property was stolen.
Tabor, 88 S.W.3d at 786 (citing.Hardesty, 656 S.W.2d at 76). To warrant an inference of
guilt based solely on the possession of stolen property, it must be established that the
possession was personal, recent, and unexplained. Id. (citing Grant v. State, 566
S.W.2d 954, 956 (Tex. Crim. App. [Panel Op.] 1978)). Also, the possession must involve
a distinct and conscious assertion of a right to the property by the defendant. Id. If the
defendant offers an explanation for his possession of the stolen property, the record must
demonstrate the account is false or unreasonable. Id. (citing Adams v. State, 552
S.W.2d 812, 815 (Tex. Crim. App. 1977)). Whether a defendant’s explanation for
possession of recently stolen property is true or reasonable is a question of fact to be
resolved by the trier of fact. Id. (citing Dixon v. State, 43 S.W.3d 548, 552 (Tex.
App.—Texarkana 2001, no pet.)). The inference of guilt based on possession of recently
stolen goods is not conclusive and the evidence must still be sufficient to support the
conviction. See Dixon, 43 S.W.3d at 552.
The evidence is sufficient to prove by a preponderance of the evidence that
appellant committed burglary of a building in Victoria County, Texas on or about January
15, 2010. The evidence is also sufficient to prove beyond a reasonable doubt that 11 appellant was guilty of theft as charged. The evidence gives rise to an inference of guilt
and numerous facts corroborate that conclusion. In the same time frame that the
burglary of Bruns’s property occurred, appellant, who lived less than a mile away from
Bruns’s property, was seen hauling two four-wheelers, a riding lawn mower, and a
welding machine that matched the items stolen from Bruns. The black riding lawn
mower with yellow trim was unique, particularly when considered in combination with the
blue welding machine and missing four-wheelers. Appellant admitted he was on
Rolando’s property hauling two four-wheelers at the time Adelmiro claimed. Appellant
testified he was hauling these items to “the Valley.”
Appellant’s testimony, however, was inconsistent because he initially testified he
was hauling two riding lawn mowers at the time, but later testified he did not haul any
riding lawn mowers that night. A fact-finder may infer a consciousness of guilt from a
defendant’s changing story about the crime and surrounding circumstances. See
Couchman v. State, 3 S.W.3d 155, 163–64 (Tex. App.—Fort Worth 1993, pet. ref’d).
“A ‘consciousness of guilt’ is perhaps one of the strongest kinds of evidence of
guilt.” Hyde v. State, 846 S.W.2d 503, 505 (Tex. App.—Corpus Christi 1993, pet. ref’d.)
(quoting Torres v. State, 794 S.W.2d 596, 598 (Tex. App.—Austin 1990, no pet.)). “It is
consequently a well accepted principle that any conduct on the part of a person accused
of a crime subsequent to its commission, which indicates a ‘consciousness of guilt,’ may
be received as a circumstance tending to prove that he committed the act with which he is
charged.” Torres, 794 S.W.2d at 598 (internal quotations omitted). Here, the fact-finder
could infer from appellant’s changing story that he was trying to cover up that Adelmiro
had seen him hauling items that he had stolen from Bruns’s property. The fact-finder 12 could also conclude appellant’s failure to keep his appointment with Investigator
Williamson was a circumstance that tended to prove his guilt.
At the theft trial, Investigator Williamson and Alkek’s testimony contradicted
appellant’s testimony, and the jury was free to believe their testimony over appellant’s
testimony. See Fuentes, 991 S.W.2d at 271; Cardona, 665 S.W.2d at 493. Although
appellant testified that his welding machine could be found outside at Alkek’s property,
Investigator Williamson searched that property and did not find any of the stolen items.
Alkek testified appellant did not own a welding machine or a riding lawn mower and that
the riding lawn mower at her residence was not black and yellow. Alkek also testified
that appellant had never loaded one of the four-wheelers at her residence to take it to the
Valley, but added that he did once load a big, dark blue Polaris four-wheeler and took it
somewhere.
Appellant asserted a distinct and conscious right to the stolen property on the
trailer by loading it on the trailer, taking it to the Rio Grande Valley, and disposing of it.
When Investigator Williamson confronted appellant about his possession of the property,
appellant did not offer any explanation for his possession that was inconsistent with guilt.
At the revocation hearing, Adelmiro testified that when Rolando asked appellant whether
he still had the items he was seen hauling, appellant admitted to disposing of them.
Appellant did not offer Rolando a reasonable explanation of his possession of the items.
The fact-finder could also reasonably infer, from appellant’s possession of the
stolen items on the trailer, that appellant also stole the missing skeet thrower and 90cc
Kazuma four-wheeler Adelmiro found concealed on Rolando’s property. See Hite v.
State, 650 S.W.2d 778, 781 (Tex. Crim. App. 1983); Mason v. State, 321 S.W.2d 591, 593 13 (Tex. Crim. App. 1959). Bruns testified to a single burglary of his building in which many
items, including a trailer, were hauled away from his property through a hole the
perpetrator cut in the fence. Adelmiro discovered the skeet thrower and 90cc Kazuma
four-wheeler shortly after seeing appellant on Rolando’s property, in the same time frame
that they were stolen. They matched the description of the items taken from Bruns’s
property. Under the respective standards of review, the evidence was sufficient to
support the trial court’s judgment in each case. We overrule appellant’s sole issue in
each appeal.
IV. CONCLUSION
We affirm the trial court’s judgment in each case.
Gregory T. Perkes Justice Do not publish. TEX. R. APP. P. 47.2 (b)
Delivered and filed the 9th day of August, 2012.