                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00204-CR


JAMES R. BIEGLER JR.                                            APPELLANT

                                      V.

THE STATE OF TEXAS                                                    STATE


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           FROM THE 271ST DISTRICT COURT OF WISE COUNTY

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                         MEMORANDUM OPINION 1

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      Appellant James R. Biegler Jr. appeals his conviction for burglary of a

habitation. We affirm.




      1
       See Tex. R. App. P. 47.4.
                         I. FACTUAL BACKGROUND

      Shelly Laaser returned from work with her children about 6:45 p.m. on

Wednesday, April 7, 2010, and discovered that her home in rural Wise County

had been broken into and ransacked. Shelly called her husband, Jared Laaser,

who told her to call 911. Jared immediately returned home. When Wise County

Deputy Sheriff Travis Waddell arrived, he noted that the home “was in total

disarray.” Waddell found drawers pulled out, closets opened, and what had not

been taken had been thrown on the floor, including food from the refrigerator.

Many valuable items had been taken: guns, video-game systems, televisions,

jewelry, a dirt bike, motorcycles, tools, compressors, a deep freezer, a clothes

washer, and a clothes dryer. Notably, among the items missing was the small

portion of an L-shaped desk, a deep freezer full of meat and frozen foods, a

trailer, and Jared’s dopp kit. It was later determined that the total value of the

missing property was approximately $49,000.

      Several days later, Jared received a telephone call from Travis Crawford, a

Garvin County, Oklahoma, Sheriff’s Office Captain.       Crawford had arrested

Appellant and Curtis Green on an unrelated offense and, in the inventory search

of Appellant’s car, had found a shaving kit containing Jared’s business card,

Jared’s prescription medication, and a Sony camera. A trailer was attached to

Appellant’s car. Wise County Sheriff Investigator Mike Naegle, who had been

assigned the case to investigate the Laasers’ burglary, contacted Crawford.



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      Naegle drove to Oklahoma and questioned Appellant after giving him the

required warnings. Appellant denied having anything to do with the Laasers’

burglary but revealed his address in River Oaks, Texas. Naegle then drove three

hours to Appellant’s house and saw two trailers parked in front. Naegle drove a

short distance away to wait for local police officers to arrive. When Naegle and

the local police officers returned, both trailers had vanished.     After receiving

written permission to search from Appellant’s wife, April, Naegle found property

that had been stolen from the Laasers, including a small desk and packages of

meat in a freezer with “JUNELAASE” stamped in red on them. When Naegle

asked April about the trailers, April called someone to return the trailers.

Apparently, Appellant had called April after Naegle’s first interview with Appellant

and had told her to “get rid of the stuff.” The trailers were returned, and Naegle

found additional property taken from the Laasers in the trailers. The Laasers’

freezer was later recovered from April’s neighbor’s house.

      Naegle then went to Green’s home, where Green’s live-in girlfriend,

Morgan Marriott, gave Naegle consent to search the home. Naegle found more

of the Laasers’ property in Green’s home, including two of the Laasers’ guns.

Naegle returned to Oklahoma to interview Appellant a second time in an effort to

recover more of the Laasers’ property. After Naegle again gave Appellant the

required warnings, Appellant told Naegle that he had put some of the Laasers’

guns at his mother’s house; however, the guns were not found. Appellant also

admitted that he had taken the meat from the Laasers’ freezer and that he had
                                         3
not taken the larger portion of the L-shaped desk, which matched the smaller

portion stolen from the Laasers’ home.

      Appellant was indicted for burglary of a habitation. See Tex. Penal Code

Ann. § 30.02 (West 2011). A jury found Appellant guilty. Appellant elected to try

the issue of punishment to the trial court. During punishment, Appellant testified

and confessed to his role in the Laaser burglary.        The trial court sentenced

Appellant to eleven years’ confinement. Appellant now appeals his conviction

and argues that (1) he did not waive any error occurring at the guilt-innocence

phase of the trial by admitting his guilt at the punishment phase, (2) the trial court

erred by admitting the video of Naegle’s second interview of Appellant, (3) the

evidence was legally insufficient to support his conviction, and (4) the trial court’s

charge on “unexplained possession of stolen property” was an impermissible

comment on the weight of the evidence.

                                II. DISCUSSION

                                   A. WAIVER

      Appellant argues that he did not waive error by admitting his guilt during

punishment. The State concedes that Appellant’s admission at punishment

does not waive any error occurring at guilt-innocence. Therefore, we sustain

point one and do not consider Appellant’s arguments directed to the guilt-

innocence portion of the trial to be waived.       See Jacobson v. State, 398

S.W.3d 195, 203–04 (Tex. Crim. App. 2013).



                                          4
                       B. ADMISSION OF CUSTODIAL STATEMENT

      Appellant contends that the trial court erred in admitting the video of

Naegle’s second interview because his right to counsel was violated during the

interrogation.   As previously set out, Naegle interviewed Appellant twice.

During the second interview, the following exchange occurred after Naegle

again read Appellant the Miranda warnings:

                 Appellant: Is there any way I can talk to a lawyer or—

               Naegle: Oh yeah. If you want to talk to your lawyer, that’s
      fine. That’s up to you. Is that what you want to do?

                 Appellant: I don’t have one.

                Naegle: Now, let me ask you, because you mentioned that
      I want to make sure that I understand. You don’t want to talk to me
      anymore? You want a lawyer?

               Appellant: I do want to talk to you but I don’t know what—I
      don’t want to sit here and hang myself neither.

                 Naegle: When you talk about a lawyer—

             Appellant: What kind of charges are you talking about on
      me? I mean what are you talking about?

                 Naegle: Let me tell you, okay, before we go any further I
      need to—cause you mentioned “lawyer,” I want to know whether you
      want to terminate this interview without an attorney or whether you
      want—I want it plainly. I don’t want none of this “maybe here,
      maybe there,” because whenever this is down the road, I don’t want
      any attorney coming in and saying, “Well, he asked for an attorney.”
      I want it plain right out now whether you want to talk to me anymore
      without an attorney. [Brief pause.] All I’m trying to do is get my stuff
      back.

                 Appellant: Yes sir. I don’t want to get, you know, I don’t

                                         5
      want my wife to get in trouble for nothing she hadn’t done. She
      didn’t do nothing.

                  Naegle: She helped get rid of some of the stuff.

                  Appellant: Get rid of what? She didn’t know there was
      stuff to—

                  Naegle: Do you want to talk to me anymore or not?

                  Appellant: Yes sir. I do. I’m talking to you.

                  Naegle:   I mean without an attorney present to make it
      clear.

                  Appellant: Yes, sir. Yes, sir.

                  Naegle: Okay.

Approximately ten minutes later when Naegle began asking Appellant to provide

specifics about the stolen property, Appellant clearly stated he wanted to

“terminate” the interview, which Naegle immediately did.

      Appellant now argues, as he did at trial, that the statement was

inadmissible because Naegle continued to question Appellant after Appellant

clearly and unambiguously invoked his right to counsel. He further asserts that

Naegle “baited” Appellant into waiving his right to counsel by implying his wife

would be imprisoned for her role in the burglary.

      We review a trial court’s admission of a custodial statement under a

bifurcated standard of review.      Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

We give almost total deference to a trial court’s rulings on questions of historical

                                           6
fact and application-of-law-to-fact questions that turn on an evaluation of

credibility and demeanor, but we review de novo application-of-law-to-fact

questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at

673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v.

State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).

      An accused’s statement resulting from custodial interrogation is

inadmissible unless the accused was advised of his Miranda rights, including his

right to consult with an attorney, and voluntarily waived those rights. Tex. Code

Crim. Proc. Ann. art. 38.23(a) (West 2007); Miranda v. Arizona, 384 U.S. 436,

467–68, 86 S. Ct. 1602, 1624–25 (1966). Interrogation immediately must stop if

an accused indicates that he wants an attorney. Miranda, 384 U.S. at 474, 86 S.

Ct. at 1628. But the request for counsel must be clear and unambiguous. Davis

v. United States, 512 U.S. 452, 458–59, 114 S. Ct. 2350, 2354–55 (1987);

Russell v. State, 727 S.W.2d 573, 575 (Tex. Crim. App.), cert denied, 484 U.S.

856 (1987). The mere utterance of the word “lawyer” is not sufficient to invoke

the right to counsel. Lucas v. State, 791 S.W.2d 35, 45 (Tex. Crim. App. 1989);

Russell, 727 S.W.2d at 575. Whether the right to counsel has been invoked is a

fact-intensive inquiry that requires an objective analysis of all the surrounding

facts and circumstances. Davis, 512 U.S. at 458–59, 114 S. Ct. at 2355; Wyatt

v. State, 23 S.W.3d 18, 23 (Tex. Crim. App. 2000); Collins v. State, 727 S.W.2d

565, 568 (Tex. Crim. App.), cert. denied, 484 U.S. 924 (1987).

      We conclude that Appellant did not clearly and unequivocally invoke his
                                        7
right to counsel. In Naegle’s first interview with Appellant, after Naegle read him

the required Miranda warnings, Appellant did not mention that he wanted an

attorney and agreed to give his statement in which he denied any involvement in

the burglary. In the second interview, Naegle explicitly told Appellant that he was

seeking more information on the location of the still-missing property and told him

what they had already discovered.       After Naegle again read Appellant the

Miranda warnings, Appellant considered stopping the interview and consulting an

attorney, but he did not clearly and directly do so. In fact, after Naegle told

Appellant he needed to invoke his right to counsel clearly—“I want it plain right

out now whether you want to talk to me anymore without an attorney”—Appellant

reaffirmed that he wanted to talk to Naegle. Indeed, Appellant later clearly told

Naegle he wanted to “terminate” the interview, which Naegle did. The totality of

the circumstances objectively shows that Appellant asked an ambiguous and

equivocal question concerning his right to counsel. Naegle correctly stopped his

questioning to clarify Appellant’s mention of an attorney and then continued the

interview after Appellant clearly decided to continue the interview without an

attorney.   The trial court did not err by admitting the video of the second

interview. See, e.g., Davis, 512 U.S. at 459–62, 114 S. Ct. at 2355–57; Davis v.

State, 313 S.W.3d 317, 339–41 (Tex. Crim. App. 2010), cert. denied, 132 S. Ct.

122 (2011); Gutierrez v. State, 150 S.W.3d 827, 832 (Tex. App.—Houston [14th

Dist.] 2004, no pet.). We overrule Appellant’s second issue.



                                        8
                        C. SUFFICIENCY OF THE EVIDENCE

      Appellant contends that the evidence is insufficient to support his

conviction because there was no evidence that he had actual physical

possession of the property and because third parties had an equal right of

access to the trailers and homes where the stolen property was found. In our

due-process review of the sufficiency of the evidence to support a conviction, we

view all of the evidence in the light most favorable to the verdict to determine

whether 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, 99

S. Ct. 2781, 2789 (1979); Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App.

2012).

      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 2006); Wise, 364

S.W.3d at 903. Thus, when performing an evidentiary sufficiency review, we

may not re-evaluate the weight and credibility of the evidence and substitute our

judgment for that of the fact-finder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010). We must presume that the fact-finder resolved any conflicting

inferences in favor of the verdict and defer to that resolution. Jackson, 443 U.S.

at 326, 99 S. Ct. at 2793; Wise, 364 S.W.3d at 903. The standard of review is

the same for direct and circumstantial evidence cases; circumstantial evidence is

as probative as direct evidence in establishing the guilt of an actor. Isassi, 330

S.W.3d at 638; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
                                        9
      We measure the sufficiency of the evidence by the elements of the offense

as defined by the hypothetically correct jury charge for the case, not the charge

actually given. Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011) (citing

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). Such a charge is

one that accurately sets out the law, is authorized by the indictment, does not

unnecessarily restrict the State’s theories of liability, and adequately describes

the particular offense for which the defendant was tried. Id. at 246.

      To sustain a conviction for burglary of a habitation, the evidence must

demonstrate that an individual entered a habitation, without the effective consent

of the owner, in order to commit a felony, theft, or assault. Tex. Penal Code Ann.

§ 30.02(a)(3) (West 2011). An individual may be charged as a party to a burglary

when he acts in concert with another who actually commits the offense. Tex.

Penal Code Ann. §§ 7.01–.02 (West 2011). Participation in an enterprise may be

inferred from the circumstances and need not be shown by direct evidence. See

Beardsley v. State, 738 S.W.2d 681, 684–85 (Tex. Crim. App. 1987).

      Appellant admitted personal possession of the stolen property and his

involvement in the burglary when he told Deputy Naegle during the second

interview that he took the meat from the freezer and that he left the larger

portion of the desk at the Laasers’ house.         Further, some of the stolen

property was found in his car at the time of his arrest one week after the

burglary. Appellant offered no explanation for his possession of the property

at the time of his arrest and there was no evidence in the record that others
                                        10
had control of his car. He further demonstrated control over some of the

property when he called his wife after Naegle’s first interview and told her to

move the trailers.       The strongest evidence that Appellant at least

participated in the burglary was April’s testimony that when she came home

on the day of the burglary, a freezer and the smaller portion of an L-shaped

desk were blocking the front door. This evidence would allow a rational fact-

finder to infer that Appellant had recent possession or control of the Laasers’

property and committed the burglary as a party or as a conspirator. See,

e.g., Rollerson v. State, 227 S.W.3d 718, 725 (Tex. Crim. App. 2007);

Poncio v. State, 185 S.W.3d 904, 905 (Tex. Crim. App. 2006); Guevara v.

State, 152 S.W.3d 45, 50–52 (Tex. Crim. App. 2004); Naranjo v. State, 217

S.W.3d 560, 571–72 (Tex. App.—San Antonio 2006, no pet.). The evidence

was sufficient, and we overrule Appellant’s third issue.

                                D. JURY CHARGE

      In his final point, Appellant argues, as he did at trial, that the trial court

impermissibly commented on the weight of the evidence by submitting the

State’s requested charge on Appellant’s unexplained possession of recently

stolen property:

             If you find from the evidence that the Defendant was in recent
      unexplained possession of stolen property belonging to Jared
      Laaser, then you may infer the Defendant’s guilt from such
      inference, if any, but you are not required to do so. The inference or
      deduction from said finding is not a presumption but is an inference
      of fact that you may draw from the evidence, if any.

                                        11
      We agree that this portion of the charge was an impermissible comment on

the weight of the evidence. See Tex. Code Crim. Proc. Ann. art. 36.14 (West

2007); Brown v. State, 122 S.W.3d 794, 799–803 (Tex. Crim. App. 2003), cert.

denied, 541 U.S. 938 (2004); Hankins v. State, 646 S.W.2d 191, 197 (Tex. Crim.

App. 1983) (op. on reh’g); Stewart v. State, 77 S.W. 791, 791 (Tex. Crim. App.

1903); Blakeley v. State, 692 S.W.2d 206, 209 (Tex. App.—Fort Worth 1985, pet.

ref’d); Roberts v. State, 672 S.W.2d 570, 578–80 (Tex. App.—Fort Worth 1984,

no pet.).   In Roberts, we specifically held that an instruction concerning an

“inference or presumption of guilt” arising from a defendant’s unexplained

possession of stolen property was error. 672 S.W.2d at 580; cf. Brown, 122

S.W.3d at 801–02 (in murder prosecution, holding instruction allowing jury to

infer intent from acts done and words spoken constituted improper judicial

comment).

      This type of preserved jury-charge error—a nonstatutory presumption that

is a mere judicial-review device for assessing the sufficiency of the evidence—is

not constitutional and, thus, must be reviewed for harm under article 36.19. Tex.

Code Crim. Proc. Ann. art. 36.19 (West 2006); Brown, 122 S.W.3d 794, 802–03.

As such, we may not reverse the trial court’s judgment unless the error was

“calculated to injure the rights of [the] defendant,” which means no more than that

there must be some harm to the accused from the error. Id.; see also Louis v.

State, 393 S.W.3d 246, 254 (Tex. Crim. App. 2012).                In making this

determination, “the actual degree of harm must be assayed in light of the entire
                                        12
jury charge, the state of the evidence, including the contested issues and weight

of probative evidence, the argument of counsel and any other relevant

information revealed by the record of the trial as a whole.” Almanza v. State, 686

S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g); see also Barron v. State,

353 S.W.3d 879, 884 (Tex. Crim. App. 2011) (elaborating on importance of

considering entire jury charge). Importantly, the court of criminal appeals has

classified the type of jury-charge error Appellant complains of to be “[s]omewhere

in the middle of the ‘improper-judicial-comment’ scale.” Brown, 122 S.W.3d at

799.

       Here, the charge was six pages in length, described the elements required

to convict Appellant, and included a myriad of definitions. The placement of the

erroneous presumption instruction was not such that the jury’s attention would be

unnecessarily drawn to it. The jury was instructed in three separate paragraphs

that Appellant must be acquitted if the jury had a reasonable doubt as to

Appellant’s guilt. The jurors were further instructed that if they concluded that

April was an accomplice to the burglary, her uncorroborated testimony was not

sufficient to convict Appellant. The application paragraph correctly set out the

elements of burglary that the jury had to find beyond a reasonable doubt to

convict Appellant.

       Appellant’s counsel asserted during closing argument that there was no

evidence, other than stolen property being found where Appellant was unaware

of it, that Appellant participated in the burglary. In its rebuttal closing argument,
                                         13
the State mentioned the improper presumption instruction but stressed that

the evidence showed Appellant was involved and that Appellant admitted to

Naegle that he took the small portion of the desk and the meat.

      As discussed regarding Appellant’s third issue, the evidence admitted at

trial showed that several items stolen from the Laasers were found at Appellant’s

home and in Appellant’s car shortly after the burglary. During Naegle’s second

interview, Appellant admitted taking some of the property.              Appellant

demonstrated he had control over the property when he called April and told her

to “get rid of the stuff,” which she did.

      The record of the trial as a whole, specifically the evidence that Appellant

had admitted personal possession and control over the stolen property, shows

that Appellant was not harmed by the error in the jury charge. See Ward v.

State, 72 S.W.3d 413, 418 (Tex. App.—Fort Worth 2002, no pet.) (holding

impermissible comment on the weight of the evidence in jury charge harmless

based on “ample evidence” to convict defendant of charged offense); cf. Cathey

v. State, 992 S.W.2d 460, 466 (Tex. Crim. App. 1999), cert. denied, 528 U.S.

1082 (2000) (holding failure to instruct jury on accomplice-witness rule harmless

error where sufficient evidence to convict defendant as principal). We overrule

Appellant’s fourth issue.




                                            14
                                     III. CONCLUSION

      We sustain Appellant’s first issue and consider his arguments directed to

alleged errors at the guilt-innocence phase of his trial even though he admitted

guilt at punishment.    However, we overrule Appellant’s remaining issues and

affirm the trial court’s judgment.



                                              CHARLES R. HOLCOMB
                                              JUDGE

PANEL: DAUPHINOT and GARDNER, JJ.; and CHARLES R. HOLCOMB
(Senior Judge, Retired, Sitting By Assignment)

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: September 19, 2013




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