Nathanael Cabness, A/K/A Nathaniel Cabness v. State

Opinion

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN



NO. 3-91-288-CR

NATHANAEL CABNESS,

APPELLANT

vs.

THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF CALDWELL COUNTY, 22ND JUDICIAL DISTRICT

NO. 90-187, HONORABLE FRED A. MOORE, JUDGE PRESIDING

After finding the appellant guilty of the offense of burglary of a building, Tex. Penal Code Ann. § 30.02(a)(1) (West 1989), the jury assessed punishment, enhanced by two prior felony convictions, at imprisonment for fifty years. In a single point of error, appellant asserts the trial court erred in overruling his motion for an instructed verdict because the evidence is insufficient to establish that appellant entered the building with the intent to commit theft. We will overrule appellant's point of error and affirm the judgment of the trial court.

When reviewing a challenge to the sufficiency of the evidence to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the conviction, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1989).

The Court of Criminal Appeals in Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988), elaborated on the correct way to apply the Jackson standard:

The court is never to make its own myopic determination of guilt from reading the cold record. It is not the reviewing court's duty to disregard, realign or weigh evidence. This the factfinder has already done. The factfinder, best positioned to consider all the evidence first hand, viewing the valuable and significant demeanor and expression of the witnesses, has reached a verdict beyond a reasonable doubt. Such a verdict must stand unless it is found to be irrational or unsupported by . . . the evidence, with such evidence being viewed under the Jackson light. Concrete application of the Jackson standard is made by resolving inconsistencies in the testimony in favor of the verdict.

There is no direct evidence showing that appellant had the intent to commit theft. The intent to commit theft is an essential element of the offense of burglary of a building. Tex. Penal Code Ann. § 30.02 (a)(1). Intent may be inferred from acts, words and conduct by the accused. Dues v. State, 634 S.W.2d 304, 305 (Tex. Crim. App. 1982). Whether the accused possessed the requisite intent is a question to be determined by the trier of facts from all the facts and circumstances in the case. Hemphill v. State, 505 S.W.2d 560, 562 (Tex. Crim. App. 1974). In Hankins v. State, 646 S.W.2d 191, 199 (Tex. Crim. App. 1981), the court stated that direct and circumstantial evidence are to be treated with equal dignity. In Carlsen v. State, 654 S.W.2d 444, 449 (Tex. Crim. App. 1983), the court adopted the Jackson v. Virginia standard for reviewing the sufficiency of the evidence in all cases, direct and circumstantial. However, the court went on to say that it was not abolishing the old "exclusion of reasonable hypothesis" test, ⁽¹⁾ stating that it would remain a criterion to be considered in reviewing circumstantial evidence cases. In reviewing appellant's contention that the court erred in overruling his motion for instructed verdict, we consider all the evidence since appellant's complaint is "in actuality a challenge to the sufficiency of the evidence." Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1990).

It is undisputed that co-defendants Derrick Anderson and John Toth entered a vacant house without the owner's permission and removed stereo equipment without the owner's consent. Appellant remained in the truck, parked approximately ten feet from the back of the house, while the stolen goods were loaded on the truck. Since there is no evidence that appellant entered the building, for him to be guilty of burglary, he must be shown to have acted as a party to the offense. Alexander v. State, 607 S.W.2d 551, 553 (Tex. Crim. App. 1980). The court instructed the jury on the law of parties pursuant to the provisions of Tex. Penal Code Ann. § 7.02 (West 1974). In determining whether there is sufficient evidence to show that appellant acted with the others to commit burglary, we can look to events before, during and after the commission of the offense. Thompson v. State, 697 S.W.2d 413, 416 (Tex. Crim. App. 1985).

Appellant directs our attention to the fact that he went to the police station and made a voluntary statement on the evening following the offense. Appellant's statement recites that Toth and Anderson asked him to drive to the house in question where he observed them place the stereo and speakers "into the back of the truck I was driving." The statement further reflects that he drove Anderson and Toth to Toth's house where the stereo and speakers were unloaded. While the statement does not reflect that appellant lacked knowledge that the property was being stolen, Anderson, a witness for appellant, testified that appellant came to his house after the stereo equipment had been unloaded and asked why he was not told that the items were stolen. Anderson related that appellant told him that he was already on probation and that he was going to turn himself in to the police. Anderson further testified that appellant declined to drive to the front of the victim's house. After the stereo equipment was loaded on the truck, Anderson stated that appellant said, "Look, somebody is watching us."

Robert Lewis testified that on the occasion in question he saw a pickup "come in front of my house, jump the curb, and go up to her [victim's] house." While Lewis was unable to identify the driver of the pickup, he recognized Anderson as the person he saw come out of the house with the stereo equipment that Anderson and another person loaded on the truck. His wife, Crystal Lewis, telephoned Karen Thompson, the owner of the house, and gave her the license number of the truck. During the telephone conversation, Thompson saw the truck described by Lewis pass in front of the store where she was working. Thompson identified appellant as the driver of the truck and Anderson as the person sitting on the stereo equipment in the back of the truck.

Luling police officer Kenneth Thick testified that his investigation "indicated there was forcible entry" at the back door of Thompson's house. Thick located the truck described as the vehicle used in the burglary at Toth's residence. Appellant was standing near the truck and denied knowing anything about a burglary. Later the same evening appellant approached Thick at the police station and told Thick that he "felt bad . . ." and volunteered to give a statement.

Appellant urges that his action in making a voluntary statement to the police after he talked to Anderson following the unloading of stolen property at Toth's house creates an unrebutted reasonable hypothesis that he did not know that an offense was being committed. The jury, as the trier of the facts, was not required to accept any inference of appellant's lack of knowledge of criminal activity that may have resulted from appellant's voluntary statement.

It is undisputed that appellant drove Anderson and Toth to the scene, waited for them and drove them away with the stolen merchandise. Appellant's proximity to the place where forcible entry to the house was gained, his refusal to drive to the front of the victim's house and his expressed awareness of being seen by others constitute additional circumstances the jury was entitled to consider. Viewing the evidence in the light most favorable to the verdict, we conclude it is sufficient to show that appellant was a party to the offense. The evidence is sufficient to support the conviction. Appellant's point of error is overruled.

The judgment is affirmed.

Tom G. Davis, Justice

[Before Justices Jones, B.A. Smith and Davis^*]

Affirmed

Filed: December 9, 1992

[Do Not Publish]

^* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (1988).

1.  Carlsen was prospectively overruled in Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991). Carlsen is applicable to the instant case tried in April 1991.