                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-13-00127-CR



         BRANDON COLBY JONES, Appellant

                            V.

           THE STATE OF TEXAS, Appellee



          On Appeal from the 4th District Court
                 Rusk County, Texas
             Trial Court No. CR 12-175-3




       Before Morriss, C.J., Carter and Moseley, JJ.
         Memorandum Opinion by Justice Carter
                               MEMORANDUM OPINION
       Brandon Colby Jones was convicted by a jury of burglary of a building and was

sentenced to twenty-four months’ confinement in a state jail facility. Jones’ point of error on

appeal challenges the legal sufficiency of the evidence supporting his conviction. We affirm the

trial court’s judgment because we find the evidence legally sufficient to establish each element of

burglary of a building beyond a reasonable doubt.

       In evaluating legal sufficiency, we review all the evidence in the light most favorable to

the jury’s verdict to determine whether any rational jury could have found the essential elements

of burglary of a building beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex.

Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305

S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d) (citing Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007)). We examine legal sufficiency under the direction of the

Brooks opinion, while giving deference to the responsibility of the jury “to fairly resolve

conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts

to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson,

443 U.S. at 318–19).

       Legal sufficiency of the evidence is measured by the elements of the offense as defined

by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997). The hypothetically correct jury charge “sets out the law, is authorized by the indictment,

does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s

theories of liability, and adequately describes the particular offense for which the defendant was


                                                2
tried.” Id. The indictment, which tracks the elements of the offense, alleged that Jones, along

with Dewayne Stewart, Jr., and Sabrina Diane Clark, intentionally and knowingly entered “a

building and a portion of a building not then open to the public, without effective consent of

Donald Ferguson, the owner thereof, with intent to commit theft.” See TEX. PENAL CODE ANN.

§ 30.02(a)(1) (West 2011).

       The jury charge allowed the jury to consider if Jones was guilty individually or under the

law of parties. “Party liability is as much an element of an offense as the enumerated elements

prescribed in a statute that defines a particular crime.” In re State ex rel. Weeks, 391 S.W.3d

117, 123 (Tex. Crim. App. 2013). Under the law of parties, a person is criminally responsible

for an offense if the offense is committed by his own conduct, by the conduct of another for

which he is criminally responsible, or by both. TEX. PENAL CODE ANN. § 7.01(a) (West 2011).

A person is criminally responsible for the conduct of another if he acts “with intent to promote or

assist the commission of the offense” and he “solicits, encourages, directs, aids, or attempts to

aid the other person to commit the offense.” TEX. PENAL CODE ANN. § 7.02(a)(2) (West 2011);

Weeks, 291 S.W.3d at 124.

       When a party is not the “primary actor,” the State must prove conduct constituting an

offense plus an act by the defendant done with the intent to promote or assist such conduct.

Beier v. State, 687 S.W.2d 2, 3 (Tex. Crim. App. 1985). The evidence can be deemed sufficient

to sustain a conviction under the law of parties if the evidence shows that the defendant was

physically present at the commission of the offense and encouraged the commission of the

offense either by words or other agreement. Tarpley v. State, 565 S.W.2d 525, 529 (Tex. Crim.

                                                3
App. 1978); see also Urtado v. State, 605 S.W.2d 907, 911 (Tex. Crim. App. 1980). The

agreement must be made before or contemporaneously with the criminal event. Miller v. State,

83 S.W.3d 308, 314 (Tex. App.—Austin 2002, pet. ref’d).

           Since an agreement of the parties to act together in a common design can seldom be

proved by direct evidence, reliance may be placed upon the actions of the parties showing, either

by direct or circumstantial evidence, an understanding and common design to do a certain act.

Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994) (op. on reh’g); Burdine v. State,

719 S.W.2d 309, 315 (Tex. Crim. App. 1986), superseded by rule change as stated in Barnes v.

State, 876 S.W.2d 316, 325 (Tex. Crim. App. 1994); Miller, 83 S.W.3d at 314. “[W]hile mere

presence at the scene, or even flight, is not enough to sustain a conviction, such facts may be

considered in determining whether an appellant was a party to the offense.” Miller, 83 S.W.3d at

814 (citing Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App. [Panel Op.] 1979) (op. on

reh’g)).

            Gene Arthur Anderson, III, a patrol deputy sheriff with the Rusk County Sheriff’s

Office, testified that he was dispatched at approximately 4:13 p.m. “to a possible burglary in

progress” and arrived at the scene of “a residence at the end of [a] dead-end road” 1 nine minutes

later. Anderson immediately witnessed Jones “exiting from underneath the open carport area”

and getting into the driver’s seat of a brown 1994 Ford Crown Victoria which Jones owned.

Anderson testified that he approached Jones and placed him in handcuffs after Jones admitted he

did not have “permission to be at the residence.” While he was speaking with Jones, Anderson


1
    The residence was being remodeled and was not then habitable.
                                                          4
“heard what sounded like two separate persons running through a wooded area behind the

residence.” Anderson called for another unit to pursue the possible additional suspects, and they

were eventually apprehended.

           Donald Ferguson, the owner of the house, 2 arrived at the property after a neighbor called

to warn him of the presence of possible intruders. He testified that he saw people “packing stuff

out of the house into the car.” A drill, two tow straps, a wire brush, a flashlight, two bolt cutters,

a bag of clothes, twelve antique bottles, “household glassware,” a toaster, a toilet seat, and “a bag

of trash bags” were found inside and just outside of Jones’ vehicle. Ferguson told Anderson that

all of the items had been inside of the building. The items were returned to Ferguson after he

identified some of the items as his and others as belonging either to his cousin, Idela White, or to

a man named “Bulldog” who was “working on the house.”

           Sergeant Russell Smith issued Miranda 3 warnings to Jones and began to question him.

According to Smith, Jones said that “there were two more people with him, Sabrina Clark being

one of them and a man he only knew as Junior,” who was later identified as Stewart.

           Jones argues that because he was not seen inside of the building and was not holding

anything when he was seen walking to the car, the evidence is legally insufficient to convict him.

However, because circumstantial evidence can be as probative as direct evidence in establishing

the guilt of an actor and can alone be sufficient to establish guilt, direct evidence of entry is not


2
 Ferguson testified that he was remodeling the house at issue and was not living in it at the time of the burglary. He
has rented the house to others in the past. Ferguson, who lived in Dallas, came home on some weekends and
“stayed at the house up until they broke in there, [and] took everything out.” Ferguson’s ownership of the home is
not an issue before us.
3
    See Miranda v. Arizona, 384 U.S. 436 (1966).
                                                          5
required; that element may be established by inference. Hernandez v. State, 190 S.W.3d 856,

865 (Tex. App.—Corpus Christi 2006, no pet.); Dixon v. State, 43 S.W.3d 548, 552 (Tex.

App.—Texarkana 2001, no pet.) (“Burglarious entry can be proven by circumstantial evidence.”)

(citing Gilbertson v. State, 563 S.W.2d 606, 608 (Tex. Crim. App. [Panel Op.] 1978)). 4

        A few minutes after officers were notified about a potential burglary in progress, Jones

was seen walking from Ferguson’s open carport to his own vehicle, which already contained

stolen items. Generally, the shorter the period of time between the taking of the property and

defendant’s possession of the property, the stronger the inference of guilt from the circumstance

of possession. See Jackson v. State, 12 S.W.3d 836, 839 (Tex. App.—Waco 2000, pet. ref’d)

(citing Hardage v. State, 552 S.W.2d 837, 840 (Tex. Crim. App. 1977)).

        Jones admitted to Anderson that he did not have permission to be on the property and told

Smith that he was there with two other people who ran off into the woods upon noticing police

presence. Ferguson arrived in time to identify the property in and around Jones’ car as being

stolen from inside the home. Ferguson’s testimony, coupled with Jones’ admission that he was

with Stewart and Clark, established that at least one of them had entered Ferguson’s building

without his effective consent and with the intent 5 to commit a theft.


4
 Jones cites Rollerson v. State, 196 S.W.3d 810 (Tex. App.—Texarkana 2006, no. pet.), as precedent for a finding of
insufficient evidence. Rollerson is distinguishable. No evidence was presented that Rollerson entered the building,
and he was not found with any property from that burglary. Id. at 815. Further, Rollerson involved a factual
sufficiency issue.
5
 In a burglary prosecution, the specific intent to commit theft may be inferred from the circumstances. Simmons v.
State, 590 S.W.2d 137, 138 (Tex. Crim. App. [Panel Op.] 1979); Martin v. State, 186 S.W.2d 80 (Tex. 1945). The
intent to commit theft may be inferred from a person’s actions or conduct. McGee v. State, 774 S.W.2d 229, 234
(Tex. Crim. App. 1989). The jury is empowered to determine the issue of intent. Moreno v. State, 702 S.W.2d 636,
641 (Tex. Crim. App. 1986), overruled in part on other grounds by Salazar v. State, 284 S.W.3d 874 (Tex. Crim.
App. 2009); Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007).
                                                        6
       No explanation for the possession of the stolen items was presented. A defendant’s

unexplained possession of property recently stolen in a burglary also permits an inference that

the defendant is the one who committed the burglary. See Rollerson v. State, 227 S.W.3d 718,

725 (Tex. Crim. App. 2007); Dixon, 43 S.W.3d at 552. At a minimum, even if Jones remained

outside, the fact that his vehicle was the mode of transportation during the offense establishes an

agreement to encourage or aid the offense.

       We conclude that the logical force of the circumstantial evidence, when viewed in

combination with the reasonable inferences from that evidence and in a light most favorable to

the verdict, is legally sufficient for a rational jury to determine that the essential elements of

burglary of a building were met beyond a reasonable doubt. We further note that the evidence in

this case was legally sufficient for the jury to convict Jones either under the law of parties or as

the primary actor.

       We affirm the trial court’s judgment.




                                                     Jack Carter
                                                     Justice

Date Submitted:        October 10, 2013
Date Decided:          October 23, 2013

Do Not Publish




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