      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-11-00341-CR



                                Timothy Jerome Troupe, Appellant

                                                   v.

                                    The State of Texas, Appellee


       FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
           NO. 66904, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING



                              MEMORANDUM OPINION


                A jury found the appellant, Timothy Jerome Troupe, guilty of burglary of a habitation

and sentenced him to ten years in prison. See Tex. Penal Code § 30.02(a) (burglary). The charge

authorized the jury to convict Troupe of acting either alone or as a party to the offense. See id.

§§ 7.01 (parties to offenses), .02 (criminal responsibility for conduct of another). Troupe contends

in one issue on appeal that the evidence is insufficient to support the jury’s verdict of guilt. We will

affirm the conviction because we conclude that the evidence is sufficient to support the verdict.


                                          BACKGROUND

                Joshua and Amber Gadlin, both active-duty members of the military, left their duplex

on the morning of July 8, 2010, at about 5:45 a.m. to attend physical training (PT).1 Amber hid the




       1
           We will refer to the Gadlins by their first names for clarity.
spare key to their duplex in the mailbox. When the Gadlins were leaving their home, they noticed

a person talking on a cell phone and seated on a picnic table closer to their neighbor’s door.

                  Amber returned home from PT earlier than Joshua because she had a doctor’s

appointment that morning. When she arrived home at about 6:45 a.m., she found the front door wide

open and the key that had been hidden in the mailbox in the door lock. She went inside and found

that their television was missing and called the police because she realized that they had been

burglarized. She then waited outside for the police and for Joshua to return home. After Joshua

returned, they realized his cell phone and their laptop were also missing.

                  When Officer Plank arrived, Joshua gave him a description of the man that they had

seen sitting on the picnic table when they left for PT. In addition, the Gadlins told Officer Plank that

they had realized that they could track the location of Joshua’s cell phone because both their cell

phones had a family-locator application that enabled each of them to use GPS tracking to identify

the location of the other’s phone. Officer Plank looked at Amber’s cell phone and realized that

the other phone was within a mile of the Gadlins’ home. The GPS did not show the other phone

moving. Instead, it had to be updated, and each time it was updated, it showed the location to which

the phone had moved within a radius of about 100 feet or less. Officer Plank asked the Gadlins to

continue updating the phone’s location and to begin driving toward it, and he followed. Based on

the speed with which the phone’s location changed, Officer Plank believed that the person with the

missing phone was in a car. Officer Plank stated that the areas in which they were driving were high

narcotic areas.

                  While they were driving, the Gadlins saw a red Honda and noticed that the driver of

the vehicle was Troupe, whom they knew and had spoken to a few times because his girlfriend had

                                                   2
lived across the street from them. They knew him by the nickname “Tru.” Amber could see that

someone else was in the Honda with Troupe, but that person was slumped down in the passenger

seat with his head down.

               The Gadlins gave Amber’s phone to Officer Plank when they were closer to the stolen

phone’s location, and Officer Plank tracked the missing phone to the parking lot of a nearby

apartment complex. Officer Plank parked around the corner so that he would not be seen, and he

began walking to the location of the GPS signal. He saw a man who matched the description of the

man that the Gadlins had seen sitting on the picnic table outside their home earlier that morning. The

Gadlins had followed Officer Plank. Amber identified the man and pointed out that he had on the

same very distinctive shoes that she had noticed when he was sitting on the picnic table.

               Officer Plank approached the man and determined that the man was Edward Jeffries.

Jeffries had the Gadlins’ missing cell phone in his pocket, so Officer Plank arrested him for burglary

of a habitation. While Officer Plank was arresting Jeffries, Joshua saw Troupe peeking out of some

nearby bushes at them. When Joshua pointed at him and said to Amber, “There’s Tru,” Troupe started

running, even though no one was chasing him at that point. Amber began chasing him because she

thought he must have had something to do with it, or he would not have started running away.

Joshua alerted Officer Plank to Troupe’s presence, saying, “There goes his partner right there,” and

Officer Plank saw Troupe, who was wearing a red shirt, running away. Joshua began following

Troupe and Amber, and as soon as Officer Plank had Jeffries handcuffed, he alerted other officers

that he needed assistance pursuing Troupe.

               Troupe was running behind houses and jumping fences. At one point, Amber caught

up to him, and Troupe said to her, “Ma’am, I didn’t take anything. Ma’am, I didn’t take anything.”

                                                  3
But no one had told him that anything had been stolen at this point, so Amber asked him how he

knew anything had been taken. He just kept repeating that he didn’t take anything. Amber had

grabbed him in a choke hold, but he wiggled out of it, and when he did, his shirt came off and he ran

away again. After that, Joshua intercepted him, and then another police officer, Detective Joe Smith,

arrived and handcuffed Troupe. Officer Plank had been following the chase in his patrol car. He

could not run after Troupe because he was transporting Jeffries. At two different times, he yelled

to Troupe, “Stop, police. You’re under arrest,” but never stated what crime he was going to arrest

Troupe for. After Detective Smith apprehended Troupe, Officer Plank advised Troupe that he was

placing him under arrest. Before Officer Plank told him the crime for which he was being arrested,

Troupe stated, “I didn’t break into no house.” Officer Plank testified that he had not told the other

responding officers what Troupe’s offense was, so none of them could have told him why he was

being arrested.

                  The red Honda that the Gadlins had seen Troupe driving earlier was in the parking

lot of the apartment complex where Jeffries was arrested and where Troupe had been hiding in the

bushes before he ran. The Gadlins identified the car to the police officers as the one that they had

seen Troupe driving earlier. Also, Jeffries had previously told Officer Plank that he would find a red

Honda at the apartment complex that would have some stolen property in it from the burglary.

He had also talked to Officer Plank about Troupe’s involvement in the burglary with him. When

Officer Plank first advised Jeffries that he was under arrest for burglary of a habitation, Jeffries

stated that he was addicted to crack and needed help, but that he did not break into “that house.”

After Troupe was spotted and had begun running away, Jeffries told Officer Plank while Officer Plank

was putting him in the back of the patrol car that Troupe was the one who broke into the house.

                                                  4
               When the police searched the red Honda, they found property belonging to the

Gadlins in it, including a radio, a car stereo, the laptop, and some pieces of jewelry. The police

determined that the Honda was registered to Jennifer Alexander. Alexander testified that Troupe,

whom she knew through her brother, had been at her house on July 7 for a party for her brother. She

left her house the evening of July 7 and did not return until early in the morning of July 8. She had

loaned her car to Troupe that morning because he told her he needed to borrow it to get to work by

7:20 a.m. When the police came to her house, they told her that her car had been involved in a

burglary of a habitation and that they had a report of some stolen property at her house. The Gadlins’

television was found at her house, but Alexander denied knowing how it arrived at her house. She

said she had not noticed it when she came in early on the morning of July 8 because some other

people were in the process of moving into her home the night before, so she was not surprised to see

items she did not recognize. She had seen Jeffries around the neighborhood, but did not know him.

He had approached her in the past to panhandle and to tell her that he had merchandise for sale, but

she never bought anything from him. She testified that she did not buy the television from him.

               In Troupe’s written statement to Detective Smith, Troupe indicated that he was

walking to work and an individual in a military uniform approached him and started beating him up

for no reason. He did not state that he knew the person or that his girlfriend lived across the street

from the person. Jeffries later gave Detective Smith an oral statement in which Jeffries stated that

he broke into the Gadlins’ house first, but then left to get Troupe to help him with transportation and

to get the property out of the house. Jeffries told Detective Smith that he and Troupe loaded the

property into the car and discussed taking the property to sell it.



                                                  5
                 At trial, Jeffries testified to a different version of events. He testified that he had

entered the Gadlins’ home, removed the property and stored it behind the back of the vacant duplex

next door. He then walked to an apartment where he knew some people and asked if they wanted

to buy a television. A woman there bought it, and she asked Troupe to take Jeffries in her car to pick

it up. Jeffries testified that he told Troupe that he had stolen the television. When they arrived at

the Gadlins’ house, Jeffries carried the television from behind the neighboring duplex to the car, and

Troupe helped Jeffries put it in the car. After they took the television back to the woman, she bought

it. Then Troupe took Jeffries to get something to eat and was taking him to a friend’s apartment in

the complex where the police found them.2

                 Troupe was indicted for the offense of burglary of a habitation. The charge

authorized the jury to convict Troupe acting either alone or as a party to the offense. See id. §§ 7.01

(parties to offenses), .02 (criminal responsibility for conduct of another). The jury found Troupe

guilty of the offense of burglary of a habitation, “as charged in the indictment.”


                                            DISCUSSION

                 Due process requires the State to prove beyond a reasonable doubt every element

of the crime charged. Jackson v. Virginia, 443 U.S. 307, 316 (1979); see also Brooks v. State,

323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (determining that Jackson standard “is the only

standard that a reviewing court should apply” when examining sufficiency of evidence). When

considering the sufficiency of the evidence, we view all the evidence in the light most favorable to




       2
           By the time of Troupe’s trial, Jeffries had judicially admitted to commission of the burglary.

                                                    6
the verdict to determine whether “any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 899.

Under this standard, it is the factfinder’s duty “to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S.

at 319. When analyzing sufficiency, we then “determine whether the necessary inferences are

reasonable based upon the combined and cumulative force of all the evidence when viewed in the

light most favorable to the verdict.” Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007).

               We presume that the factfinder resolved any conflicting inferences supported by the

record in favor of the prosecution and therefore defer to that determination. Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We must defer to the jury’s determination of the

witnesses’ credibility and the weight to be given their testimony. Brooks, 323 S.W.3d at 899. We

assume that the trier of fact resolved conflicts in the testimony, weighed the evidence, and

drew reasonable inferences from basic facts to ultimate facts in a manner that supports the verdict.

Jackson, 443 U.S. at 319; Laster v. State, 275 S.W.3d 512, 522 (Tex. Crim. App. 2009). “Our

role on appeal is restricted to guarding against the rare occurrence when a factfinder does not act

rationally[;] . . . . we will uphold the verdict unless a rational factfinder must have had reasonable

doubt as to any essential element.” Laster, 275 S.W.3d at 517-18.

               We apply the same standard of review to both direct and circumstantial evidence

cases. Id. We must consider all the evidence in the record, whether direct or circumstantial, properly

or improperly admitted, or submitted by the prosecution or defense. Clayton, 235 S.W.3d at 778.

Circumstantial evidence is as probative as direct evidence when establishing an actor’s guilt, and

circumstantial evidence alone can be sufficient to establish guilt. Hooper, 214 S.W.3d at 13.

                                                  7
               In a sufficiency review, the essential elements of the offense are those of a

hypothetically correct jury charge for the case—one that accurately sets out the law and adequately

describes the offense for which the defendant was tried without increasing the State’s burden of

proof or restricting the State’s theories of liability. Id. at 14. To support a conviction for burglary

of a habitation, the State must prove that a person entered a habitation without the effective consent

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

§ 30.02(a)(3). In this case, the charge authorized the jury to convict Troupe either as a principal

or a party. When the trial court’s charge authorizes the jury to convict on more than one theory,

the verdict of guilt will be upheld if the evidence is sufficient on any of the theories. See Hooper,

214 S.W.3d at 14.

               Viewing the evidence in the light most favorable to the verdict, we find that the

evidence is sufficient to support Troupe’s conviction for burglary of a habitation. The jury heard

evidence of a number of circumstances from which it could infer Troupe’s guilt. First, flight is a

circumstance indicating guilt. Hardesty v. State, 656 S.W.2d 73, 77-78 (Tex. Crim. App. 1983).

Troupe was hiding in the bushes and fled the scene when he was spotted. He led the Gadlins and

police on a lengthy foot chase behind houses and jumped fences while trying to avoid police

apprehension. After Amber had him in a choke hold, he escaped and ran away again. Second, the

unexplained possession of recently stolen property permits an inference that Troupe is the person

who committed the burglary. See Rollerson v. State, 227 S.W.3d 718, 725 (Tex. Crim. App. 2007).

The Gadlins testified that the burglary occurred between 5:45 a.m. and 6:20 a.m. on July 8. Shortly

after 8:00 a.m., Troupe was arrested. Troupe never offered any explanation for the stolen property



                                                  8
found in the back of the car that he had been seen driving just before his arrest. Third, inconsistent

statements and implausible explanations to the police are probative of wrongful conduct and are

also circumstances of guilt. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). Troupe

repeatedly denied involvement in a burglary, first when he was apprehended by Amber and then

by Officer Plank, before anyone accused him of the crime. At the time of his arrest, Troupe stated

that he had been walking to work when a person in military uniform had attacked him without

provocation, despite the fact that he and the Gadlins knew each other (which he omitted from

his statement).

                  In sum, the State presented evidence that Troupe (1) was driving the car containing

the stolen property shortly after the burglary, (2) fled from police when spotted, (3) denied

involvement in a burglary before any accusation was made, and (4) asserted that he had been

attacked without provocation by an unknown person in military uniform even though the Gadlins

had met him before and knew him by name. We conclude that a rational jury could have found all

the elements of burglary proved beyond a reasonable doubt based on the totality of the evidence.

See Guevara, 152 S.W.3d at 52 (holding that rational jury could have found elements of offense

proved beyond a reasonable doubt based on totality of circumstantial evidence).

                  In addition, two of Jeffries’s statements further support the jury’s verdict.3 The State

put on evidence that Jeffries had given two different versions of events to the police before testifying

to a third version at trial. Officer Plank testified that Jeffries first told him that Troupe was the one


        3
         The charge informed the jury that Jeffries was an accomplice and instructed the jury on the
accomplice-testimony requirements. Troupe has not raised an issue on appeal related to the State’s
use of accomplice testimony.

                                                     9
who broke into the house. Detective Smith testified that shortly after his arrest Jeffries told him

that he had left the Gadlins’ house after entering it the first time to get Troupe to help him with

transportation and getting the property from the house. He and Troupe then drove back to the house,

loaded the property in the car, and discussed taking the property to sell it. At trial, Jeffries testified

that Troupe helped him transport the property (that Jeffries told Troupe was stolen) after Troupe had

been asked to drive Jeffries to get the television by the woman who bought it. Alexander testified

that she did not know Jeffries, did not buy the television from him, and loaned her car to Troupe so

that he could go to work. We must presume that the jury resolved the conflicting testimony in favor

of its verdict and believed Jeffries’s first or second version of events—that Troupe either broke into

the house or helped Jeffries get the property out of the house. See Jackson, 443 U.S. at 319; Laster,

275 S.W.3d at 517. Even if we disregard Jeffries’s statements, however, the totality of the other

evidence is sufficient to support Troupe’s conviction.4

                The State offered sufficient circumstantial evidence for the jury to infer beyond a

reasonable doubt that Troupe committed the burglary. Reviewing the evidence under the appropriate

standard, we conclude the evidence is legally sufficient to support Troupe’s conviction. We overrule

Troupe’s sole issue.


        4
          Troupe relies on Jeffries’s presence to argue that the evidence was insufficient to convict
him as a party—he asserts that Jeffries’s testimony at trial shows that they did not share a common
purpose or design before or contemporaneously with the burglary. The mere presence of another
party, however, does not preclude our evaluation of the circumstantial evidence that provides a
sufficient basis standing alone to convict Troupe as a principal actor. We do not reach Troupe’s
argument that the evidence is insufficient to convict him as a party because we have concluded that
the evidence is sufficient to convict Troupe as a principal actor. See Hooper v. State, 214 S.W.3d 9,
14 (Tex. Crim. App. 2007) (conviction will be upheld if sufficient evidence supports any one of
alternative theories in jury charge); see also Tex. R. App. P. 47.1 (court of appeals must hand down
written opinion that is as brief as practicable but that addresses every issue raised and necessary to
final disposition of appeal).

                                                   10
                                        CONCLUSION

               Having determined that the evidence is sufficient to support Troupe’s conviction, we

affirm the trial court’s judgment.



                                             __________________________________________

                                             David Puryear, Justice

Before Justices Puryear, Goodwin and Field

Affirmed

Filed: July 18, 2013

Do Not Publish




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