

 
 











 
 
 
 
                                           NUMBER
13-99-688-CR
 
                                 COURT OF
APPEALS
 
                     THIRTEENTH DISTRICT OF
TEXAS
 
                         CORPUS CHRISTI B EDINBURG

 
RODNEY
DEWAYNE DAVIS,                                                           Appellant,
 
                                                             v.
 
THE
STATE OF TEXAS,                                                                    Appellee.
 
 
On
appeal from the 155th District Court
of
Austin County, Texas
 
 
                                          O P I
N I O N
 
                          Before Justices Yañez,
Castillo and Baird[1]
                                         Opinion
by Justice Baird   




Appellant was charged
by indictment with the offense of engaging in organized criminal activity.  Appellant waived trial by jury and entered a
plea of not guilty. The trial judge found appellant guilty of the charged
offense and assessed punishment at ten years confinement in the Texas Department
of Criminal Justice--Institutional Division. 
We affirm the judgment of conviction as reformed, and remand the case to
the trial court for the determination of punishment.
I.  The Substantive Offense and Standard of
Appellate Review.
Appellant=s sole point of error
challenges the sufficiency of the evidence to support the conviction.  The elements of engaging in organized
criminal activity are: (1) a person; (2) with intent to establish, maintain, or
participate in a combination; (3) commits or conspires to commit; (4) an
enumerated offense.  Tex. Pen. Code Ann. ' 71.02(a)(1) (Vernon
Supp. 2002); Mast v. State, 8 S.W.3d 366, 369 (Tex. App.BEl Paso 1999, no
pet.).  ACombination@ means three or more
persons who collaborate in carrying on criminal activities.  Tex.
Pen. Code Ann. ' 71.01 (Vernon Supp.
2002).  The phrase Acollaborate in
carrying on criminal activities@ implies continuity --
something more than a single, ad hoc effort.  Nguyen v. State, 1 S.W.3d 694, 697
(Tex. Crim. App. 1999).  Therefore, Athe State must prove
that the appellant intended to 'establish, maintain, or participate in' a group
of three or more, in which the members intend to work together in a continuing
course of criminal activities."  Id.
In pertinent part, the
instant indictment alleged:




[O]n or about December
2, 1998, . . . [appellant] did intentionally or knowingly appropriate, by
acquiring or otherwise exercising control over property, to-wit: cattle, [owned
by the complainant], without the effective consent of the owner, and with
intent to deprive the owner of the property, and [appellant] did then and there
commit said offense with the intent to establish, maintain, or participate in a
combination or in the profits of a combination who collaborated in carrying on
said criminal activity.
 
Appellant argues the
evidence is insufficient to prove the combination element.  Specifically, appellant advances two
arguments.  First, that the evidence
fails to establish that a group of three or more existed.  Second, if a group did exist, the group did
not collaborate in carrying on criminal activities, but rather committed a
single offense.  In determining whether
the evidence is legally sufficient to sustain a conviction, we employ the
standard established in Jackson v. Virginia and ask Awhether, 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, 319
(1979).  The standard is applicable to
both direct and circumstantial evidence cases. 
Geesa v. State, 820 S.W.2d 154, 158 (Tex. Crim. App. 1991), overruled
in part on other grounds, Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim.
App. 2000).
II.  Factual Summary.
We begin by
summarizing the evidence related to the theft offense alleged in the
indictment.  On December 1, 1998, Joe
Mazoc owned a pickup truck bearing license plate no. PY1 977.  On December 2, Mazoc found the vehicle was
parked differently and had been damaged. 
Mazoc had not given anyone permission to take the vehicle, and he did
not know appellant.




On December 2, 1998,
the complainant went to his farm to check on a heavybred heifer.  He noticed the barn door open, the gates
latched differently and some feed in a pen. 
Unable to find the heifer and another cow, the complainant called the
Port City Stockyards and was told the cows arrived around 1:30 a.m. on December
2, and had been sold.  The complainant
surmised that the trailer used to haul the cows had some broken boards due to
tracks left on the ground.  The cows were
eventually returned to the complainant, and one of them walked with a  limp. 
The complainant had not given anyone permission to take the cows, and he
did not know appellant.
James Davis was the Anight man@ at the Port City
Stockyards.  In that capacity, he
processed the cows as they were off-loaded. 
Davis took down the license plate numbers of the vehicles which hauled
the cattle.  In the early morning hours
of December 2, the complainant=s two cows were
brought to the stockyard.  Davis noted
that the trailer used to haul the cows had broken floorboards and one of the
cows had her legs protruding through. 
That cow walked with a limp. 
Davis testified the pickup hauling the cows had license plate number PY1
977.  The individual hauling the cows
identified himself as Weston Starks.[2]  The man asked that the proceeds from the sale
be held at the stockyard.  Davis
identified appellant as the person who brought the complainant=s cows to the
stockyard.  Davis had seen appellant
previously at the stockyard with Ervin Starks, Jr., Davis=s cousin.  Davis testified that appellant and Ervin Aused to bring in cows
together.@




Texas Ranger Doyce
Cook responded to a call of some stolen cattle at the Port City
Stockyards.  Cook instructed that the
check for the sale of the complainant=s cows be made payable
to Weston Starks, but that the amount be $5.82 rather than the true amount of
$582.00.  Cook then stayed at the
stockyard and waited for someone to claim the check.  Eventually, appellant claimed the check.  Cook followed appellant outside, saw
appellant look at the check, enter the passenger side of a vehicle, and throw
the check out of the window.  Cook
removed appellant from the vehicle and placed him under arrest for the theft of
the complainant=s cows.  Cook testified the vehicle was being driven
by Poppii Adams and occupied by Gregory 
Wilson.
Gregory Wilson,
appellant=s cousin, denied any
knowledge of stolen cattle or any conversations with appellant about stealing
cattle.  He further testified he did not
have a conversation with Poppii Adams while appellant was inside the Port City
Stockyards picking up the check.[3]  Wilson also testified that he had given a
contradictory statement to Austin County Deputy Sheriff Joe Villareal, but that
the statement was false and involuntarily obtained after Wilson had been
detained for three hours.
Wilson=s written statement
was admitted when Villareal testified. 
Villareal said the statement was obtained thirty-five minutes after
Wilson voluntarily presented himself to the sheriff=s office.  Wilson=s statement reads as
follows:




During the middle of
November, [appellant] and I (Gregory Wilson) had this phone discussion.  [Appellant] was telling me that I could make
some money by stealing cattle and all we needed was a truck and we could get a
trailer from where ever we get the cows and we could take the cattle to
Hockley, Brenham, Columbus, Needville and Sealy.  I told [appellant] that I was not trying to
get involved in anything and was not. [Appellant] also told me that it was
getting hot in Raccoon Bend.
Weston Starks
testified that in December of 1998, he was a student at Bellville High School.[4]  A teacher came to his class with a message
that Poppii Adams wanted appellant=s I.D.  Initially, Weston testified he did not know
why this request was being made, but later admitted testifying before the grand
jury that such a request was, in reality, a request for Weston=s I.D.  Nevertheless, Weston did not have his I.D.
that day so he was unable to fulfill the request.  Weston testified that he did not know why his
I.D. would be needed by appellant.




Poppii Adams testified
that on December 1, she received a telephone call from appellant, who said he
needed Weston Starks=s I.D.[5]  Appellant did not say why he needed the I.D.,
and Adams did not ask.  Adams went to
Bellville High School and made an unsuccessful attempt to secure the I.D.  This was the first and only time appellant
asked Adams to obtain an I.D.  On
December 2, Adams drove appellant and Gregory Wilson to the Port City Stockyards
because appellant said he needed to pick up a check for Weston Starks.  Appellant went in the stockyard office and
returned with an envelope.  When Adams
noticed appellant being followed, she asked Wilson what was happening.[6]  Adams said she and appellant never discussed
or planned to steal cattle.
III.  Arguments and Analysis.
As noted above,
appellant contends the evidence fails to establish that a group of three or
more existed.  And, alternatively, if a
group did exist, the group did not collaborate in carrying on criminal
activities, but rather committed a single offense.  We will address these arguments seriatim.
A.  Combination of Three or More Proven?




A combination requires
three or more persons.  When the evidence
set forth above is viewed in the light most favorable to the prosecution, the
only individuals who could have been a part of a combination were Weston
Starks, Douglas Wilson and Poppii Adams. 
For the evidence to be sufficient, at least two of these individuals
must be in the combination to have the minimum number of three.  As noted above, all three denied
participation, membership or knowledge of any combination.  Weston testified he did not know why appellant
wanted the I.D.  While Wilson=s statement recounts
an offer from appellant to steal cattle, Wilson expressly rejected the
offer.  Moreover, Wilson testified he
knew nothing of, and had no participation in, the December 2 theft of the
complainant=s cattle.  Finally, Adams testified she had no knowledge
of why appellant wanted Weston=s I.D., and that she
and appellant never discussed or planned to steal cattle.  While the trial judge was free to disbelieve
this testimony, the State was not relieved of its burden of producing evidence
that a combination of three or more existed on December 2, 1998, the date
alleged in the indictment.  Wright v.
State, 603 S.W.2d 838, 840 (Tex. Crim. App. 1980) (AThe fact that the
trial judge was entitled to disregard the [testimony] does not mean that the
missing elements of the offense are supplied by rejecting this testimony.  The burden of proof is on the State, and it
is incumbent on the State to prove every element of the offense.@); Johnson v. State,
673 S.W.2d 190, 196 (Tex. Crim. App.1984) (disbelief of testimony cannot
provide substantive proof).  There simply
is no evidence that any of these individuals were part of a combination.
The State counters
that there is other evidence in the record that proves the existence of a
group.[7]  Specifically, that evidence relates to two
separate incidents: one in April and the other in November of 1998.  We set forth that evidence now.




Ervin Starks, Weston=s brother, also
testified.[8]  At the time of his testimony, Ervin  was in prison for engaging in organized
criminal activity, burglary of a habitation and theft.  Ervin testified that in April of 1998, he and
appellant stole six cows and took them to the Hockley Auction Barn for
sale.  Appellant instructed the night man
at the auction barn to handle the cows in Ervin=s name. 
Later, Ervin and appellant returned and picked up a check in the amount
of $2,783.80 for the sale of the cows. 
This check was admitted as State=s exhibit 26.  Ervin cashed the check and split the money
with appellant.  Ervin testified he was
related to James Davis, and that he (Ervin) had taken cows to sell at the Port
City Stockyards on prior occasions.  The
proceeds from those sales were split with appellant.  Ervin testified that he was arrested in April
and had been in confinement since his arrest. 
He testified he had no knowledge of what occurred after his arrest.
Oscar Kesee, a latent
fingerprint examiner, examined State=s exhibit 26 and found
appellant=s fingerprints on the
check in the amount of $2,783.20 issued to Ervin Starks from the Hockley
Auction Barn.
David Charpiot
testified that he owned a pickup truck which was taken one night in November of
1998.  The vehicle was returned the next
day.  That pickup truck bore license
plate number vehicle MU 973.  This
license plate number matched Athe number that was on
the license plate of the vehicle that took some cows to Brenham that night.@




Amelia Beard,
comptroller for Port City Stockyards, testified about a cattle transaction at
the Brenham location.  Beard identified
the livestock check-in slip related to the sale of three cows transported via
a vehicle with license plate number ML 973.[9]  The name on the check-in slip was Weston
Starks.  Ultimately, Beard issued a
check, State=s exhibit 24, in the
amount of $825.03 to Weston Starks for the sale of those cows.  This was the check Weston cashed and split
with appellant.
In addition to his
testimony set forth above, Weston Starks testified that in November of 1998,
appellant instructed him to go to the Brenham Livestock Auction and pick up a
check in Weston=s name in the amount
of $825.00.  Weston did not own any
cattle and did not know why the check was issued to him.  After cashing the check, Weston split the
proceeds with appellant.  This was the
only check-cashing transaction Weston participated in.  Weston denied ever helping appellant sell any
cows, or steal any vehicle.  Weston also
testified that he never planned or aided appellant in the theft of cattle.
Kesee  examined State=s exhibit 24 and found appellant=s prints on this
check.
When this additional
evidence is viewed in the light most favorable to the prosecution, we are
unable to say it proves a combination of three or more.  This testimony establishes that appellant and
Ervin Starks stole cattle in April of 1998. 
There is no testimony that this twosome ever grew into a group of three
or more.  This association terminated
upon Ervin=s arrest in
April.  Therefore, Ervin could not have
been a member of a combination on December 2, 1998, the date of the cattle
theft alleged in the indictment.




Similarly, the
testimony of Weston Starks, at best, proves he was a party to the November 1998
cattle theft.  There is no testimony that
this duo, ever grew into a combination of three or more.  In fact, the evidence is to the contrary
because Weston testified that he did not know why appellant needed Weston=s I.D. on December
2.  And there is no other evidence of
Weston=s knowledge of or
participation in the December 2. 1998, cattle theft.
Accordingly, we hold
the evidence, viewed in the light most favorable to the prosecution, is legally
insufficient to prove appellant was a part of a combination of three or more
persons.  Tex. Pen. Code Ann. ' 71.01(a) (Vernon
Supp. 2002).
B.  Continuity.
Assuming arguendo
that a combination of three or more existed, there is no evidence that the group
intended to steal cattle on more than one occasion.  Clearly, there is no evidence that Adams or
Wilson had any intent to steal cattle on more than one occasion.  Adams professed ignorance of the December 2
theft, and Wilson had expressly rejected appellant=s earlier offer to
steal cattle on a regular basis.
The evidence may show
that Ervin Starks and appellant stole cattle multiple times, but there is no
evidence from any source that they ever recruited a third person to  participate in those thefts.  And even if those multiple thefts were
committed, and even if they were committed by three or more people, that
combination certainly ended months before December 2, 1998, the date of the
cattle theft alleged in the indictment. 
In other words, there can be no continuity in December from a
combination that expired in April.




Finally, there is no
evidence that Weston continued this criminal association with appellant past
November 1998.  Weston testified this was
the only check-cashing transaction he had participated in.  Weston denied ever helping appellant sell any
cows, or steal any vehicle.  And Weston
testified that he never planned or aided appellant in the theft of cattle.  There is no evidence to the contrary.  While the trial judge may have disbelieved
Weston, there still must be some evidence from which a rational trier could
find the November incident, as related to Weston, was more than a single, ad
hoc event.  Wright, 603 S.W.2d
at 840; Johnson, 673 S.W.2d at 196. 
There simply is no such evidence.
Accordingly, we hold
the evidence, viewed in the light most favorable to the prosecution, is legally
insufficient to prove appellant was a part of a combination carrying on
criminal activities.  Tex. Pen. Code Ann. ' 71.01(a) (Vernon
Supp. 2002).
IV.  Reformation of Judgment.




In Bigley v. State,
865 S.W.2d 26, 28 (Tex. Crim. App.1993), the Court of Criminal Appeals held the
Texas Rules of Appellate Procedure authorized a court of appeals to reform a
judgment to reflect a conviction on a lesser‑included offense after
determining the evidence was insufficient to support a conviction for the
greater offense.  See id.  Although Bigley involved a jury trial,
this rationale has been extended to non-jury trials.  Brown v. State, 35 S .W.3d 183, 190
(Tex. App.BWaco 2000, no
pet.).  This is so because a trial judge
is authorized to find a defendant guilty of any lesser‑included offense
for which the evidence provides the required proof.  Shute v. State, 877 S.W.2d 314, 315
(Tex. Crim. App. 1994); Cunningham v. State, 726 S.W.2d 151, 153 (Tex.
Crim. App. 1987).  In finding a defendant
guilty of the greater offense, the trial judge necessarily finds the evidence
sufficient to convict the defendant of the lesser‑included offense.  Watson v. State, 923 S.W.2d 829, 832‑33
(Tex. App.BAustin 1996, pet.
ref'd).
The instant judgment
reflects a conviction for the primary offense of engaging in organized criminal
activity, a third‑degree felony based on the underlying state jail felony
offense of theft of less than ten head of cattle.  Tex.
Pen. Code Ann. '' 71.02(b),
31.03(e)(4)(A) (Vernon Supp. 2002). 
Theft can be considered a lesser-included offense in a charge for
organized criminal activity to commit theft. 
Smith v. State, 36 S.W.3d 908, 910 (Tex. App.BHouston [1st Dist.]
2001, pet. ref'd).  The evidence
summarized in part II, supra, is sufficient to prove appellant committed
the lesser included offense of theft of cattle. 
Therefore, we modify the judgment of the trial court to reflect a
conviction for that offense.  Tex. R. App. P. 43.2.  The judgment of conviction, as reformed, is
affirmed as to the adjudication of guilt, but the cause is remanded to the
trial court for a new hearing on punishment. 
We affirm the judgment of conviction as modified.  Tex.
Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2000); Dickson v.
State, 986 S.W.2d 799, 806 (Tex. App.BWaco 1999, pet.
ref'd); Dusek v. State, 978 S.W.2d 129, 137 (Tex. App.BAustin 1998, pet.
ref'd); Lucero v. State, 915 S.W.2d 612, 615 (Tex. App.BEl Paso 1996, pet.
ref'd).
 
 
                                                   

CHARLES
F. BAIRD
Justice
 
Publish.
Tex. R. App. P. 47.3.
 
Opinion delivered and filed this the
17th day of October, 2002.




[1] Former
Court of Criminal Appeals Judge Charles F. Baird assigned to this Court by the
Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. '
74.003 (Vernon 1998).


[2]  The stockyard did not request verification of
the name given by the individuals who brought the cows for sale.


[3]  Specifically, he denied a conversation where
Poppii Adams said: ADusty,
we are fucked.  Here comes the police.@


[4]  Appellant contends we should not consider the
testimony of Weston Starks because it was not corroborated as required by
article 38.14 of the Code of Criminal Procedure.  See Tex.
Code Crim. Proc. Ann. art. 38.14 (Vernon 1979).  The State concedes Weston Starks was an
accomplice.  As will be seen infra,
we need not address the corroboration argument.


[5]  Appellant contends we should not consider the
testimony of Adams because it was not corroborated as required by article 38.14
of the Code of Criminal Procedure.  The
State concedes Adams is an accomplice. 
As will be seen infra, we need not address the corroboration
argument.


[6]  Specifically, Adams denied saying: AWe
are fucked.@


[7]  We need not consider whether this additional
evidence is sufficient to prove 
appellant conspired to commit the offense of theft because the
indictment does not contain a conspiracy allegation.  Tex.
Pen. Code Ann. '
71.01(b) (Vernon Supp. 2002).


[8]  Appellant contends we should not consider the
testimony of Ervin Starks because it was not corroborated as required by
article 38.14 of the Code of Criminal Procedure.  See Tex.
Code Crim. Proc. Ann. art. 38.14 (Vernon 1979).  The State concedes Ervin Starks was an
accomplice.  As will be seen infra,
we need not address the corroboration argument.


[9]  Our review of State=s
exhibit 25 leads us to conclude the exhibit actually has MuL 973 as the license
plate number.


