IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED MARCH 1997 SESSION May 30, 1997
Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk ) C.C.A. NO. 01C01-9605-CC-00187 Appellee, ) ) WILLIAMSON COUNTY ) v. ) HON. HENRY DENMARK BELL, ) JUDGE TYREE P. AUSTIN, ) ) (Aggravated Burglary and Theft Appellant. ) Under $500)
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN H. HENDERSON JOHN KNOX WALKUP Public Defender Attorney General & Reporter P.O. Box 68 Franklin, Tennessee 37065-0068 RUTH THOMPSON Assistant Attorney General 450 James Robertson Parkway Nashville, Tennessee 37243-0493
JOSEPH D. BAUGH District Attorney General
MARK L. PURYEAR, III Assistant District Attorney P.O. Box 937 Franklin, Tennessee 37065-0937
OPINION FILED: ________________
AFFIRMED
JOE G. RILEY, JUDGE OPINION
The defendant, Tyree P. Austin, appeals as of right from a jury verdict
convicting him of aggravated burglary, a Class C felony, and theft of property under
$500, a Class A misdemeanor. As a Range I standard offender, he was sentenced
to five (5) years and fined $5,000 for aggravated burglary. For theft of property
under $500, Austin received eleven months and twenty-nine days to run concurrently
with the burglary sentence. Austin presents three issues for our review: 1) whether
the evidence is sufficient to sustain the convictions; 2) whether the trial judge erred in
failing to submit “every word” of the charge to the jury in written form; and 3) whether
the imposed sentence is excessive. Finding no error, the judgment of the trial court
is affirmed.
FACTS
At 1:00 p.m. on October 11, 1994, Rachel P. Carter left her home in
Williamson County to attend a funeral. At approximately 3:30 p.m., Carter returned
home and noticed that the rear door had been forced open. Carter subsequently
discovered that a television set and a microwave oven had been taken from her
home. Because the television was fairly new, Carter was able to give the officers the
serial number for it.
Deborah Henderson, a pawnbroker and custodian of the records for Cash
America Pawn Shop, subsequently identified a pawn ticket with Austin’s signature
and detailed information describing Austin as the individual who pawned a television
with the matching serial number. The pawn ticket indicated the transaction took
place at 2:52 p.m. on the date of the burglary.
At trial, Austin admitted to pawning the television, but stated that he did not
know it was stolen. He testified that another individual, Tommy Arendale,
telephoned him at 9:00 a.m. on October 11, 1994, and told him that he had
2 something he might want. Austin stated a Steve Jones took him to meet Arendale
where Austin bought the television for $20. He also testified he did not know the
whereabouts of either Arendale or Jones.
SUFFICIENCY OF THE EVIDENCE
Austin argues the evidence is insufficient to sustain the convictions of
aggravated burglary and theft of property valued under $500. Specifically, Austin
contends that there was no proof that he (1) entered the Carter residence, or (2)
exercised control over the television in Williamson County. Tenn. Code Ann. §§ 39-
14-403; 39-14-103.
When an accused challenges the sufficiency of the convicting evidence, our
standard of review is whether, after reviewing the evidence in a 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, 319
(1979). Questions concerning the credibility of the witnesses, the weight and value
to be given the evidence, as well as all factual issues raised by the evidence, are
resolved by the trier of fact, not this court. State v. Pappas, 754 S.W.2d 620, 623
(Tenn. Crim. App. 1987). Nor may this court reweigh or re-evaluate the evidence.
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). On appeal, the state is
entitled to the strongest legitimate view of the evidence and all inferences therefrom.
Id. at 835. Because a verdict of guilt removes the presumption of innocence and
replaces it with a presumption of guilt, the accused has the burden in this court of
illustrating why the evidence is insufficient to support the verdict returned by the trier
of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
At trial, Ms. Carter testified that she did not leave her home until 1:00 p.m. to
attend a funeral. At approximately 3:30 p.m., she returned home to find the rear
door had been forced open. She later discovered her television and microwave had
been taken. A pawn ticket from Cash America indicated that Carter’s television had
3 been pawned by Austin at 2:52 p.m. on the same day of the burglary.
Austin denied stealing the television or having any knowledge that it was
stolen, but admits pawning it. He testified that he was responding to a 9:00 a.m.
phone call from a Tommy Arendale. He maintained that on the morning of the
burglary, Arendale telephoned him about “something he might want.” He did not
know what time he met with Arendale or his present whereabouts. There was also
proof indicating that Austin resided only a few miles away from the Carter residence.
According to Austin’s testimony the burglary would have to have occurred on
the morning of or prior to October 11, 1994. Ms. Carter testified that she did not
leave her home, nor were the items missing until at least 1:00 p.m. on that same day.
Regardless, it is undisputed that Austin pawned the television less than two hours
after it had been stolen. Possession of recently stolen goods may give rise to an
inference that the possessor had stolen them. State v. Tuttle, 914 S.W.2d 926, 932
(Tenn. Crim. App. 1995). It is also sufficient evidence to sustain a burglary
conviction. Id. Based upon this and the other evidence, the jury accredited the
testimony of the victim, Ms. Carter, discredited that of Austin, and returned guilty
verdicts on both charges. There was sufficient evidence to sustain the convictions of
aggravated burglary and theft of property under $500. This issue is without merit.
JURY INSTRUCTIONS
Austin argues that the trial judge erred in failing to submit “every word” of his
charge to the jury in written form. He contends the trial court erred by giving a
supplemental oral jury charge relating to venue.
After all of the testimony has been presented and the argument of counsel
concluded, it is the trial judge’s duty to instruct the jury. Furthermore, in a felony
case every word of the judge’s instructions shall be reduced to writing before being
given to the jury. Tenn. R. Crim. P. 30(c); State v. Gorman, 628 S.W.2d 739 (Tenn.
1982). However, a failure to present written instructions is subject to harmless error
4 analysis. See Gorman, 628 S.W.2d at 740.
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED MARCH 1997 SESSION May 30, 1997
Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk ) C.C.A. NO. 01C01-9605-CC-00187 Appellee, ) ) WILLIAMSON COUNTY ) v. ) HON. HENRY DENMARK BELL, ) JUDGE TYREE P. AUSTIN, ) ) (Aggravated Burglary and Theft Appellant. ) Under $500)
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN H. HENDERSON JOHN KNOX WALKUP Public Defender Attorney General & Reporter P.O. Box 68 Franklin, Tennessee 37065-0068 RUTH THOMPSON Assistant Attorney General 450 James Robertson Parkway Nashville, Tennessee 37243-0493
JOSEPH D. BAUGH District Attorney General
MARK L. PURYEAR, III Assistant District Attorney P.O. Box 937 Franklin, Tennessee 37065-0937
OPINION FILED: ________________
AFFIRMED
JOE G. RILEY, JUDGE OPINION
The defendant, Tyree P. Austin, appeals as of right from a jury verdict
convicting him of aggravated burglary, a Class C felony, and theft of property under
$500, a Class A misdemeanor. As a Range I standard offender, he was sentenced
to five (5) years and fined $5,000 for aggravated burglary. For theft of property
under $500, Austin received eleven months and twenty-nine days to run concurrently
with the burglary sentence. Austin presents three issues for our review: 1) whether
the evidence is sufficient to sustain the convictions; 2) whether the trial judge erred in
failing to submit “every word” of the charge to the jury in written form; and 3) whether
the imposed sentence is excessive. Finding no error, the judgment of the trial court
is affirmed.
FACTS
At 1:00 p.m. on October 11, 1994, Rachel P. Carter left her home in
Williamson County to attend a funeral. At approximately 3:30 p.m., Carter returned
home and noticed that the rear door had been forced open. Carter subsequently
discovered that a television set and a microwave oven had been taken from her
home. Because the television was fairly new, Carter was able to give the officers the
serial number for it.
Deborah Henderson, a pawnbroker and custodian of the records for Cash
America Pawn Shop, subsequently identified a pawn ticket with Austin’s signature
and detailed information describing Austin as the individual who pawned a television
with the matching serial number. The pawn ticket indicated the transaction took
place at 2:52 p.m. on the date of the burglary.
At trial, Austin admitted to pawning the television, but stated that he did not
know it was stolen. He testified that another individual, Tommy Arendale,
telephoned him at 9:00 a.m. on October 11, 1994, and told him that he had
2 something he might want. Austin stated a Steve Jones took him to meet Arendale
where Austin bought the television for $20. He also testified he did not know the
whereabouts of either Arendale or Jones.
SUFFICIENCY OF THE EVIDENCE
Austin argues the evidence is insufficient to sustain the convictions of
aggravated burglary and theft of property valued under $500. Specifically, Austin
contends that there was no proof that he (1) entered the Carter residence, or (2)
exercised control over the television in Williamson County. Tenn. Code Ann. §§ 39-
14-403; 39-14-103.
When an accused challenges the sufficiency of the convicting evidence, our
standard of review is whether, after reviewing the evidence in a 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, 319
(1979). Questions concerning the credibility of the witnesses, the weight and value
to be given the evidence, as well as all factual issues raised by the evidence, are
resolved by the trier of fact, not this court. State v. Pappas, 754 S.W.2d 620, 623
(Tenn. Crim. App. 1987). Nor may this court reweigh or re-evaluate the evidence.
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). On appeal, the state is
entitled to the strongest legitimate view of the evidence and all inferences therefrom.
Id. at 835. Because a verdict of guilt removes the presumption of innocence and
replaces it with a presumption of guilt, the accused has the burden in this court of
illustrating why the evidence is insufficient to support the verdict returned by the trier
of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
At trial, Ms. Carter testified that she did not leave her home until 1:00 p.m. to
attend a funeral. At approximately 3:30 p.m., she returned home to find the rear
door had been forced open. She later discovered her television and microwave had
been taken. A pawn ticket from Cash America indicated that Carter’s television had
3 been pawned by Austin at 2:52 p.m. on the same day of the burglary.
Austin denied stealing the television or having any knowledge that it was
stolen, but admits pawning it. He testified that he was responding to a 9:00 a.m.
phone call from a Tommy Arendale. He maintained that on the morning of the
burglary, Arendale telephoned him about “something he might want.” He did not
know what time he met with Arendale or his present whereabouts. There was also
proof indicating that Austin resided only a few miles away from the Carter residence.
According to Austin’s testimony the burglary would have to have occurred on
the morning of or prior to October 11, 1994. Ms. Carter testified that she did not
leave her home, nor were the items missing until at least 1:00 p.m. on that same day.
Regardless, it is undisputed that Austin pawned the television less than two hours
after it had been stolen. Possession of recently stolen goods may give rise to an
inference that the possessor had stolen them. State v. Tuttle, 914 S.W.2d 926, 932
(Tenn. Crim. App. 1995). It is also sufficient evidence to sustain a burglary
conviction. Id. Based upon this and the other evidence, the jury accredited the
testimony of the victim, Ms. Carter, discredited that of Austin, and returned guilty
verdicts on both charges. There was sufficient evidence to sustain the convictions of
aggravated burglary and theft of property under $500. This issue is without merit.
JURY INSTRUCTIONS
Austin argues that the trial judge erred in failing to submit “every word” of his
charge to the jury in written form. He contends the trial court erred by giving a
supplemental oral jury charge relating to venue.
After all of the testimony has been presented and the argument of counsel
concluded, it is the trial judge’s duty to instruct the jury. Furthermore, in a felony
case every word of the judge’s instructions shall be reduced to writing before being
given to the jury. Tenn. R. Crim. P. 30(c); State v. Gorman, 628 S.W.2d 739 (Tenn.
1982). However, a failure to present written instructions is subject to harmless error
4 analysis. See Gorman, 628 S.W.2d at 740.
The record in this case was supplied in video-cassette and technical record
form. There were over twenty (20) pages of jury instructuctions that were submitted
to the jury. The trial judge gave the following oral comments in addition to a standard
venue instruction:
And if the preponderance of the evidence proves that the crime was committed in two or more counties, then he can be prosecuted in any one of those counties, but not more than one.
Defense counsel timely objected to the supplemental instruction indicating that the
oral instruction was inconsistent with the defense theory of the case and further
stating that he thought that the instruction “had to be in writing.” Most of the defense
proof throughout trial was directed at showing that Austin did not exercise control
over the stolen property in Williamson County. The trial judge declined to reduce the
instruction to writing noting that it only applied to the misdemeanor theft charge.
The trial court was technically correct in finding that this oral instruction only
applied to the misdemeanor and was not required to be in writing. See Tenn. R.
Crim. P. 30 (c). However, the practice of giving oral instructions applicable to
misdemeanor charges and written instructions applicable to felony charges, in the
same case, is discouraged and could be confusing to a jury. In this case the jury
obviously concluded the defendant committed the burglary and taking of the property
in Williamson County. Therefore, the trial judge’s limited oral comments to the jury
were not prejudicial to Austin. The error was harmless. This issue is without merit.
LENGTH OF SENTENCE
Austin next argues that his sentence is excessive. Specifically, he contends
that the trial court erred in sentencing him to five years for aggravated burglary, and
that a four year sentence is more appropriate.
5 When there is a challenge to the length, range, or manner of service of a
sentence, it is the duty of this court to conduct a de novo review with a presumption
that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-
35-401(d)(1990). The presumption of correctness which attaches to the trial court’s
action is conditioned upon an affirmative showing in the record that the trial court
considered the sentencing principles and all relevant facts and circumstances. State
v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). Accordingly, the defendant has the
burden of showing that the sentence is improper. State v. Holland, 860 S.W.2d 53
(Tenn. Crim. App. 1993).
In calculating the sentence for Class B, C, D, or E felony convictions, the
presumptive sentence is the minimum within the range if there are no enhancement
or mitigating factors. Tenn. Code Ann. § 40-35-210 (c)(1990); State v. Smith, 926
S.W.2d 267 (Tenn. Crim. App. 1995). If there are enhancement factors but no
mitigating factors, the trial court may set the sentence above the minimum. Tenn.
Code Ann. § 40-35-210(d)(1990). A sentence involving both enhancement and
mitigating factors requires an assignment of relative weight for the enhancement
factors as a means of increasing the sentence. Tenn. Code Ann. § 40-35-
210(e)(1990). The sentence may then be reduced within the range by any weight
assigned to the mitigating factors. Id.
As a Range I standard offender convicted of a Class C felony, Austin could
receive a sentence between three and six years. Austin had a prior conviction for
first degree burglary for which his parole had been revoked. There was also proof
indicating that Austin had several misdemeanor convictions, including one for theft.
The trial court, accordingly, enhanced Austin’s sentence based on his previous
history of criminal convictions and criminal behavior and unwillingness to comply with
the conditions of a sentence involving release into the community. Tenn. Code Ann.
§ 40-35-114(1), (8)(1990).
In addition, the trial court found two mitigating factors: 1) that the defendant
had a favorable work history; and 2) that the conduct did not cause or threaten
6 serious bodily injury. In light of Austin’s criminal history, the court had discretion to
give these mitigating factors little weight. See State v. Santiago, 914 S.W.2d 116,
126 (Tenn. Crim. App. 1995). The record supports the five-year sentence imposed
by the trial court. This issue is without merit.
The judgment of the trial court is AFFIRMED.
_____________________________ JOE G. RILEY, JUDGE
CONCUR:
_________________________________ JOSEPH M. TIPTON, JUDGE
_________________________________ THOMAS T. WOODALL, JUDGE