McKinny v. State

76 S.W.3d 463, 2002 WL 226731
CourtCourt of Appeals of Texas
DecidedMay 31, 2002
Docket01-99-00538-CR
StatusPublished
Cited by161 cases

This text of 76 S.W.3d 463 (McKinny 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
McKinny v. State, 76 S.W.3d 463, 2002 WL 226731 (Tex. Ct. App. 2002).

Opinions

EN BANC OPINION

TERRY JENNINGS, Justice.

Appellant, Kenneth W. McKinny, was tried simultaneously for two state jail felony offenses: (1) theft of a truck and (2) theft of a pump worth more than $1,500 and less than $20,000. Although the jury acquitted appellant of the truck theft, it found him guilty of the theft of the pump and assessed punishment at two years confinement in a state jail with a $3,000 fine. In five points of error, appellant contends the evidence was legally and factually insufficient to support the jury’s finding of guilt as to the theft of the pump, he was denied the right to effective assistance of counsel, he was denied the right to conflict-free counsel, and the trial court erred by failing to conduct a hearing to deter[467]*467mine whether a conflict of interest existed between appellant and his trial counsel. We affirm.

Background

On December 17, 1998, appellant and Charles Havard removed two water pumps from an unlocked tool shed on a construction site, placed them in a truck, and drove away. Almost immediately after taking the pumps, Houston Police Officer K.W. Bray stopped the truck for a traffic violation and arrested Havard and appellant for theft of the truck and theft of the pumps.

Immediately prior to trial, the State entered into a plea agreement with Havard, who agreed to testify against appellant in exchange for concurrent one-year sentences for both offenses. Havard stated, under oath, that he would testify that he picked up appellant and asked him if he wanted to make some money. Havard stated that he and appellant took two water pumps and put them in the back of the truck “with the intent of 'pawning them and [Havard] using [appellant’s] ID because [Havard] did not have one.” (Emphasis added.)

At trial, Officer Bray testified that Ha-vard was driving the truck, and he stopped it because Havard made an illegal left turn. At that time, appellant was riding in the passenger seat. Havard failed to provide any identification or valid proof of insurance for the truck. Officer Bray noticed the truck’s steering column cover was broken and the ignition key was in a position that would normally turn the engine off. While Bray was determining whether information Havard provided him was correct, appellant twice began to “meander away” from the truck. Both times, Officer Bray instructed appellant to return and wait next to the front of the truck. Bray confirmed the truck was stolen, and, within minutes, learned the pumps were just stolen. He placed both men under arrest. After his arrest, Havard gave a handwritten statement to the police.

Clayton Atkinson testified that he was a supervisor for Basic Contracting at the construction site, located in Harris County, Texas. On the afternoon of December 17, 1998, he noticed two water pumps were missing from an unlocked tool shed on the site, and he immediately notified the police. He testified that the industrial pump in question was one year old and had a value of approximately $1700.1

The State presented the testimony of Charles Havard, who stated he stopped appellant, who was hitchhiking, and asked appellant if he wanted to make some money. At the time, Havard was wearing a shirt bearing the logo of “Tree Services, Inc.,” a tree trimming company. The same logo appeared on the side of the truck he was driving. Havard claimed that he had never met appellant before that day, and he stopped appellant because Havard knew he would need someone to help lift the water pumps. When appellant told Havard he needed a ride, Havard told him to get in the truck. Havard then took appellant to the construction site, where appellant helped Havard put the pumps into the truck. Remarkably, in subsequent direct examination by the State, Ha-vard stated he did not remember his pretrial testimony regarding their intent to pawn the water pumps using appellant’s identification.

"When asked by appellant’s counsel on cross-examination if he ever told appellant that the pumps were not his, Havard re[468]*468sponded, “I didn’t make a statement either way. I didn’t say yes, I didn’t say no.” Havard later testified further, “I never said we were stealing. I never said we was, I never said we wasn’t.” Havard admitted that, prior to testifying, he pleaded guilty to theft of the truck and the water pump, and he conceded he provided his testimony at trial in exchange for plea bargain agreements regarding those charges.

Through the testimony of Houston Police Officer Scott Cire, the State offered Havard’s handwritten statement into evidence without objection from appellant’s counsel. The statement contains a version of events different from Havard’s trial testimony, and reads, in relevant part:

I was at 59 [and] Laura Coupe [sic]. Sleeping under the bridge. I woke up, and was walking to the store to bum something to eat. 2 black males pulled up and ask [sic] me if I wanted to go make some money. I said yes. I got in the truck and we went to the store. I was bought [sic] 2 sandwiches and a bag of chips [and] a Coke. We left and we went to a house. The man driving got out then 5 min[utes] later he returned [.] We went back to the store[.] The driver left in a white car. Then I was ask [sic] to drive because the other one did not know how to drive a standard. I did[.] I was told were [sic] to go and then we pulled up in front of a railroad box on the ground and we loaded up [two] water pumps. We left and I was pulled over.

Havard admitted to giving this statement to police, but insisted he did so only because a police officer promised to charge him with misdemeanor theft and charge appellant with the theft of the truck. Ha-vard said he gave this first, admittedly false, statement to the officer to do less time in jail, “so I gave him what he wanted to hear.”

After the initial day’s testimony, but pri- or to closing the following day, the State presented the testimony of Harris County Sheriffs Deputy D.B. Cleeman, assigned as a bailiff to the 337th District Court. Deputy Cleeman stated that, while he was escorting Havard back to the jail after his trial testimony, he asked Havard if he was there to testify for the State, because it appeared he was there for the defense. Cleeman stated that Havard told him “he was here to help his friend.” Cleeman further testified that Havard told him that he and appellant “had been doing this throughout for quite a while, that they did this together” and “since he had already taken his plea bargain earlier yesterday morning that he was going to do whatever it took to help his buddy get off.” On cross-examination, Deputy Cleeman conceded he generally does not believe everything inmates tell him, and Havard was not a person Cleeman would believe.

Sufficiency of the Evidence

In points of error one and two, appellant contends the evidence presented was legally and factually insufficient to support the jury finding of guilt for the theft of the pump.

A legal sufficiency challenge requires us 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 v. Virginia, 443 U.S. 307, 320, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Jones v. State, 944 S.W.2d 642, 647-48 (Tex.Crim.App.1996).

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Bluebook (online)
76 S.W.3d 463, 2002 WL 226731, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckinny-v-state-texapp-2002.