Terry Lynn Westerman v. State

• Court: Court of Appeals of Texas
• Decided: July 19, 1990
• Docket: 10-89-00245-CR
• Status: Published

Opinion

Westerman v. State

AFFIRMED 19 JULY 1990

NO. 10-89-245-CR

Trial Court

# 26997

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

* * * * * * * * * * * * *

TERRY LYNN WESTERMAN,

   Appellant

v.

THE STATE OF TEXAS,

   Appellee

From 249th Judicial District Court

Johnson County, Texas

O P I N I O N

* * * * * * *

This is an appeal by defendant Westerman from his conviction for burglary of a motor vehicle, enhanced by a prior felony conviction, for which he was assessed 20 years in the Texas Department of Corrections and a $5,000 fine.

Defendant appeals on 3 points.

Point 1 asserts "the evidence was insufficient to sustain a verdict of burglary of a motor vehicle".

In reviewing the sufficiency of the evidence to sustain a conviction, the evidence is viewed in the light most favorable to the prosecution to ascertain whether or not a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Foster v. State, Ct.Crim.Appls, 635 S.W.2d 710; Butler v. State, Ct.Crim.Appls, 769 S.W.2d 234.

A door was stolen off of complainant Logan Sizemore's 1980 Monte Carlo automobile in Cleburne. Sizemore reported the loss to the police. A few days later a police officer stopped an automobile that was pulling out of defendant's driveway. The door of the car had been recently painted and the underneath paint matched the paint of the stolen door. Defendant gave the police a statement that a Wayne Walls had sold him the door on March 3, 1989. Defendant and his wife testified on trial that he had purchased the door from a Justin McCowan. Evidence was that Walls was not and had not been in the state for a number of months; and McCowan testified he did not sell the door to defendant. Defendant lived a very short distance from the lot from which the car door was stolen.

The evidence is sufficient to sustain the conviction. Valdez v. State, Ct.Crim.Appls, 623 S.W.2d 317. The evidence shows defendant had personal possession of a recently stolen car door which could not have been removed from the complainant's car without a breaking into or illegal entry into the vehicle. Moreover, defendant admitted at trial he put the door on his car and spray-painted it white.

Viewing the evidence in light most favorable to the verdict, the trier of fact could have reasonably concluded that defendant broke into the complainant's car with the intent to commit theft.

Point 1 is overruled.

Point 2 asserts "the evidence was insufficient to prove that the defendant entered a vehicle as that term is defined in the Texas Penal Code".

Complainant's 1980 Monte Carlo did not have a motor, transmission, alternator, generator and had front-end damage. Defendant contends the vehicle from which the door was stolen was not a vehicle but was junk.

There is no distinction between an immobilized vehicle and a "vehicle" in the Penal Code. It is the design of the vehicle that controls and not its temporary condition. Trevino v. State, CA (San Antonio), 697 S.W.2d 476.

Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found that a "vehicle" had been burglarized.

Point 2 is overruled.

Point 3 asserts "the trial court committed reversible error in refusing to charge the jury on a lesser-included offense of theft".

In determining whether a charge on a lesser-included offense is required, a two-step process is utilized. First, the lesserincluded offense must be included in the proof necessary to establish the offense charged. Second, the record must reflect some evidence that if the defendant is guilty, he is only guilty of the lesser-included offense. Royster v. State, Ct.Crim.Appls, 622 S.W.2d 442; Eldred v. State, Ct.Crim.Appls, 578 S.W.2d 721.

The evidence did not raise the issue of theft and defendant was not entitled to a charge on that offense. Simpkins v. State, Ct.Crim.Appls, 590 S.W.2d 129; Thomas v. State, Ct.Crim.Appls, 578 S.W.2d 691.

Point 3 is overruled.

AFFIRMED

                               FRANK G. McDONALD

DO NOT PUBLISHChief Justice (Retired)

[Participating: Chief Justice Thomas, Justices Hall and Means and Chief Justice Frank G. McDonald (Retired)].

pan>      Two undercover narcotic officers testified that Appellant assisted them in the purchase of cocaine from another individual. Appellant denied that he did so. Appellant was tried under the law of parties. The jury convicted him, and he pled "true" to the alleged prior felony conviction. Appellant elected to have the judge assess punishment. The judge sentenced him to 20 years in prison.

      Appellant appeals on three points of error.

      Point one: "The evidence is insufficient to support the conviction for the offense charged."

      Officer O'Donnell testified that on February 4, 1994, he and officers Castillo and Underwood were working undercover, i.e., they were not in uniform, were not in a police car, and were dressed in old work clothes. He testified they were cruising in an area where their supervisor, Sergeant Misak, told them that narcotics activity was being conducted; that they saw individuals standing in the 5300 block of Liveoak; that he (O'Donnell) cried out, "Where is the rock?"; that Appellant waived for them to stop and asked what they were looking for; that he replied, "a couple of dimes," (a dime is a $10 rock of cocaine). Appellant said he did not have any but could take them where they could get some. Appellant got in the car and directed the officers to 4815 Gaston. O'Donnell and Appellant exited the car and went into a breezeway where Appellant approached a young black male and said that O'Donnell needed two dimes. The younger man took a baggie from his pocket which contained several smaller plastic bags and handed O'Donnell two of the small bags. O'Donnell paid him with a marked $20 bill. It appeared to O'Donnell that Appellant and the young man knew each other; and the young male complied immediately when Appellant said O'Donnell needed two dimes. O'Donnell and Appellant returned to the officers' car; O'Donnell gave Appellant $5; and Appellant walked across the street. The officers radioed Sergeant Misal, who was nearby, that they had made a purchase and gave a detailed description of Appellant and the male who made the delivery. Within five minutes Appellant was arrested. The other male ran and was not apprehended.

      Officer Underwood testified substantially as did Officer O'Donnell. Sergeant Misak testified he arrested Appellant and that Officers O'Donnell and Underwood confirmed that it was Appellant that assisted them in the purchase of the two bags of cocaine.

      Appellant testified that he lives on the streets, that he cleans windows for a living; that the officers approached him asking if he knew where they could get drugs; that he told them, "No"; that he asked if they would give him a ride to Gaston; that he rode with them to Gaston; that they gave him a $5 bill; that he exited the car and went to a nearby apartment's restroom; that when he came out he was arrested; and that he did not assist anyone to sell drugs.

      In reviewing the sufficiency of the evidence, this court must determine whether, considering the evidence in the light most favorable to the verdict, 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; Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). Inconsistencies in the testimony are resolved in favor of the verdict. Johnson v. State, 815 S.W.2d 707, 712 (Tex. Crim. App. 1991). The jury, as the trier of fact, is the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony. Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984). Under the Jackson test any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Point one is overruled.

      Point two: "Batson error was committed during the jury selection."

      Specifically Appellant asserts that Juror No. 2, Ms. Moss, a black woman, was struck by the State as peremptory challenge because of her race.

      During voir dire the prosecutor asked the panel if anyone personally, or a close friend or relative, had been charged or convicted of any type of offense. There was no response from Ms. Moss who was on the first row. The prosecutor then asked the question to the first row and Ms. Moss made no response. The prosecutor then went to the second row, then returned to the first row again with the question; again Ms. Moss Made no response. The prosecutor then asked the third row the question, returned to the first row again, and asked the question. Again there was no response from Ms. Moss.

      The State struck Ms. Moss as a peremptory strike. After the jury was selected Appellant made a motion that Juror No. 2, Ms. Moss, "was excluded because of race and for no other reason"

      The State responded that Ms. Moss was struck because she was less than forthcoming when asked about being charged with, convicted, or arrested for any type of crime as to her, a close friend or relative; and that it is the State's belief, and [this] has been double checked by our investigator, that her husband has an extensive felony background. The State further stated it was concerned about and struck people who were less than forthright about anything other than traffic-ticket offenses. The court found the State's strike was race neutral.

      A Batson motion is one that complains the State used a peremptory challenge against a venireperson for a constitutionally impermissible reason such as race. Batson v. Kentucky, 476 U.S. 79 (1986). When reviewing a Batson claim, a reviewing court is to examine the record in the light most favorable to the trial court's ruling. Keeton v. State, 749 S.W.2d 861, 870 (Tex. Crim. App. 1988). A trial court's ruling will be reversed only when the ruling is clearly erroneous. Whitsey v. State, 796 S.W.2d 707, 726 (Tex. Crim. App. 1990). The State's reason for striking a potential juror need not rise to the level of a challenge for cause; it need only be race neutral. Tomkins v. State, 774 S.W.2d 195, 200 (Tex. Crim. App. 1987), aff'd 490 U.S. 1754 (1989).

       Lack of candor in admitting or volunteering information that a juror or close relative has a criminal record is a factor taken into account in determining whether the State's reason for striking was a race neutral. Brooks v. State,,, 894 S.W.2d 843, 846 (Tex. App.—Tyler 1995, no pet.).

      When the prosecutor provides a race-neutral explanation, the burden shifts back to the defendant to rebut the prosecutor's explanation or to show that the explanation was merely a sham or pretext. Williams. V. State, 804 S.W.2d 95, 101 (Tex. Crim. App. 1991), cert. denied, 501 U.S. 1239.

      Appellant here did not attempt to rebut the State's explanation or show that it was a sham. Point two is overruled.

      Point three: "The prosecutor erred by arguing to the jury that the credibility of the appellant could be impeached with an offense that was not a felony or one involving moral turpitude."

      Appellant testified that he had been convicted of possession of cocaine and sentenced to three years for that offense; that he had been convicted of forgery and given three years for that offense; and that he had been convicted of a terroristic threat to his cousin.

      Specifically, Appellant complains of the State's closing argument to the jury, viz:

                  He is a convicted drug possessor, he is a convicted thief, and oh, he almost forgot to tell you about his conviction for a terroristic threat that conveniently slipped his mind.

                  The defense attorney wants you to forget about all of that, don't use that against him. But you are entitled to use that. You can go back there and say, "What type of character are we listening to? What type of man do we have here?" We have a drug user who's been convicted and we have a thief, and we have someone who makes terroristic threats on people, and you can use that to judge his credibility.

                  [DEFENSE COUNSEL:] Your Honor, a terroristic threat is not a crime of moral turpitude to use against him at this time.

                  THE COURT: Overruled, Counsel.

      Appellant contends that because making a terroristic threat to another person is a misdemeanor and does not involve moral turpitude, the argument was improper to be considered in judging Appellant's credibility.

      Appellant had originally testified that the only misdemeanor offense he had been convicted of was sleeping in public and he did not "count that kind of stuff." He later admitted he had been convicted of terroristic threats.

      It was a reasonable deduction that if Appellant had lied earlier about his conviction for a terroristic threat that such could be used to judge his credibility.

      The argument was permissible both as a summation of the evidence and as a reasonable deduction from the evidence. Drew v. State, 743 S.W.2d 207, 221 (Tex. Crim. App. 1987).

      Point three is overruled. The judgment is affirmed.

                                                                               Chief Justice (Retired)

Before Justice Cummings,

      Justice Vance and

      Chief Justice McDonald (Retired)

Opinion delivered and filed October 2, 1996

Do not publish