                                     In The
                                Court of Appeals
                       Seventh District of Texas at Amarillo

                                     No. 07-13-00034-CR


                           TERRY GLYNN SPEED, APPELLANT

                                              V.

                            THE STATE OF TEXAS, APPELLEE

                             On Appeal from the 249th District Court
                                     Johnson County, Texas
                Trial Court No. F46764, Honorable D. Wayne Bridewell, Presiding

                                       January 9, 2015

                              MEMORANDUM OPINION
                     Before CAMPBELL and HANCOCK and PIRTLE, JJ.


       A jury convicted appellant Terry Glynn Speed of burglary of a habitation 1 and

assessed punishment, enhanced by two prior felony convictions, at confinement in

prison for sixty-five years.2 The trial court entered a deadly weapon finding after the jury

answered a special issue affirmatively.       Through three issues on appeal, appellant

challenges the sufficiency of the evidence supporting his conviction for burglary and the

       1
           TEX. PENAL CODE ANN. § 30.02(a)(3) (West 2011).
       2
           TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2014).
deadly weapon finding and the trial court’s refusal to instruct the jury on theft as a

lesser-included offense of burglary. We will affirm.


                                       Background


       The houses of Shaun Berry and Christopher Cantu are located near one another

on property in rural Johnson County. Access to both residences is via a narrow private

lane originating at a gate on State Highway 174 and ending at a closed gate past the

houses and barns. Barbed wire fencing bounds each side of the lane.


       On February 16, 2012, at about 5:30 p.m. Berry entered the lane returning home

from work. He saw a white Honda Civic backed up to the porch of the Cantu residence.

Its trunk was open. He further saw two males, one of large build and the other of

smaller stature, exit the front door of Cantu’s residence. The smaller male closed the

trunk and took the driver’s seat of the Civic while the larger male took the front

passenger seat. The driver was later identified as Jimmy Green and the passenger as

appellant.


       About that time Cantu entered the lane, also returning from work. He parked

next to Berry’s vehicle, blocking the road. Cantu also saw two males leave his house.

Berry and Cantu got out of their vehicles and approached the Civic, seeking an

explanation. Berry left the engine of his vehicle running.


       The Civic pulled away and headed toward the back gate. But the gate was

closed so the vehicle turned around and proceeded up the lane toward the parked

vehicles. Berry called 9-1-1 and retrieved a shotgun.



                                             2
       The Civic attempted to drive around the roadblock created by the vehicles but

could not pass. In the process it scraped Berry’s vehicle and the barbed wire fence.

Also, the exterior rearview mirror on the passenger side of the Civic was dislodged.


       The Civic stopped and Green fired a shot in the direction of Cantu and Berry.

Berry responded by firing twice toward the Civic. Cantu obtained a shotgun from his

residence and fired on the Civic. Green fired a second shot to which Berry responded

with two more shots. Appellant exited the passenger side of the Civic, entered Berry’s

vehicle, and moved it, allowing the Civic to pass. The Civic skirted Berry’s vehicle,

picked up appellant, and the two departed the property heading toward Joshua, Texas,

on SH 174.


       Minutes later police officers, aware of the situation through 9-1-1 calls, spotted a

white Civic occupied by two males fitting the description of those who fled the Cantu

residence. When directed by police to pull over the Civic moved onto the shoulder. The

driver did not stop, however, but tried to reenter the highway. The pursuing officer

responded by ramming his patrol vehicle into the Civic. The maneuver brought the

Civic to a stop.


       Meanwhile, Cantu discovered the front door of his residence was “kicked in.” His

television set had been moved near the door, Direct TV and Samsung remote controls

were missing, as was the subwoofer component from his entertainment system.


       As police removed Green from the Civic, a .40 caliber pistol fell from his lap. On

the driver’s side floorboard of the vehicle were two spent cartridges. A live round was

found in the driver’s seat and the driver’s floorboard. On the passenger side floorboard


                                            3
beneath appellant, police found Samsung and Direct TV remote controls. The trunk

contained a subwoofer like Cantu’s. Also in the trunk was a pry bar containing “fresh

scrape marks.” Officers further observed a shotgun “slug” had penetrated the vehicle

exterior and the exterior passenger side rearview mirror was missing. Police found the

mirror near the spot on the Berry property where the Civic attempted to wedge past

Berry’s vehicle.


       Appellant testified during the guilt-innocence phase of trial. He explained he and

Green mistakenly believed Cantu’s residence was the location of a business accepting

applications for trucking jobs. Appellant sought a position as a driver and Green as his

helper. Appellant admitted knocking on the front door of Cantu’s residence but denied

entering. According to appellant, two individuals appeared at the scene and one began

firing shots at him and Green.


       On cross-examination appellant made several denials.            He claimed no

knowledge of Green possessing a gun or seeing him fire a gun. He saw no shell

casings or live ammunition in the vehicle. He knew not how the remote controls and

subwoofer came to be located in the vehicle.       He would not acknowledge Cantu’s

ownership of these items. He denied helping Green escape insisting instead that by

moving Berry’s vehicle he saved Green’s life.       Appellant acknowledged four prior

convictions for burglary of a habitation and one prior conviction for theft, $750 to

$20,000.


       Appellant was convicted and sentenced as previously noted.           This appeal

followed.



                                            4
                                         Analysis


       In his first issue appellant argues the State presented no evidence that he

entered Cantu’s residence either directly or as a party to the offense.


       When deciding whether the evidence is sufficient to support a conviction, we

assess all the evidence in the light most favorable to the verdict to determine whether

any rational trier of fact could find the essential elements of the crime beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560

(1979). In applying the Jackson standard of review, “the relevant question is whether,

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.”   Id. at 319 (emphasis in original).     As the Court of Criminal Appeals has

explained, the Jackson standard accounts for 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.” Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)

(quoting Jackson, 443 U.S. at 319).       Therefore, when the evidence would support

conflicting inferences, we must presume that the factfinder resolved the conflicts in favor

of its verdict and must defer to that determination. Clayton, 235 S.W.3d at 778 (citing

Jackson, 443 U.S. at 319.) The deference we are required to give a jury’s verdict is

perhaps most acute when it depends on the jury’s evaluation of the credibility of

witnesses and the weight to be given their testimony. See Brooks v. State, 323 S.W.3d

893, 894 (Tex. Crim. App. 2010) (under Jackson standard, reviewing court is required to

defer to jury’s credibility and weight determinations). Sufficiency of the evidence is to be

measured by the elements of the offense as defined by the hypothetically-correct jury

                                             5
charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically-

correct jury charge accurately 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 tried. Id.


       As charged, to establish appellant’s guilt of burglary of a habitation under Penal

Code section 30.02(a)(3), the State was required to prove appellant entered Cantu’s

residence without his effective consent and committed or attempted to commit theft of

property, specifically a Direct TV remote control, a Samsung remote control, and a

Samsung speaker. See TEX. PENAL CODE ANN. § 30.02(a)(1) (West 2011).


       “A person is criminally responsible as a party to 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 an offense committed by the conduct of another if “acting with

intent to promote or assist the commission of the offense, 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). When the accused is not the principal actor, the

State must prove conduct constituting an offense plus an act committed by the

defendant with intent to promote or assist such conduct. Beier v. State, 687 S.W.2d 2,

3 (Tex. Crim. App. 1985); Miller v. State, 83 S.W.3d 308, 313 (Tex. App.—Austin 2002,

pet. refused). Evidence is sufficient to sustain a conviction under the law of parties if it

shows the defendant was physically present at the commission of the offense and

encouraged the commission of the offense either by words or by other agreement.

                                             6
Tarpley v. State, 565 S.W.2d 525, 529 (Tex. Crim. App. 1978); Miller, 83 S.W.3d at 313-

14.


      Appellant argues no rational trier of fact could have found he entered Cantu’s

residence. We disagree. Berry testified clearly that he saw two men come from inside

Cantu’s house. The events that followed leave no doubt appellant and Green were the

men, and appellant in his testimony acknowledged his presence at the Cantu residence.

Items taken from inside the residence were found in the white Civic. The evidence was

sufficient to establish appellant entered Cantu’s residence.


      Appellant counters the circumstantial proof of entry with an argument that the

State was obligated to exclude every other reasonable hypothesis except the guilt of

appellant to obtain a conviction. But this is no longer the law. See Geesa v. State, 820

S.W.2d 154, 161 (Tex. Crim. App. 1991), overruled on other grounds by Paulson v.

State, 28 S.W.3d 570 (Tex. Crim. App. 2000) (abandoning the alternative reasonable

hypothesis construct for reviewing evidentiary sufficiency in circumstantial evidence

cases).


      Citing Rodriguez v. State, 549 S.W.2d 747 (Tex. Crim. App. 1977), appellant next

argues his presence as passenger in a vehicle with items taken from Cantu’s residence

will not support an inference of guilt of burglary. Rodriguez held an inference of guilt

sufficient to sustain a conviction for theft or burglary may arise from the defendant’s

possession alone of stolen property if his possession was personal, recent,

unexplained, and involved a distinct and conscious assertion of right to the property. Id.

at 749. In Rodriguez, stolen property was found by police in a file box in a bedroom



                                            7
closet shared by the defendant and his girlfriend in the apartment of the defendant’s

mother.      Id. at 747, 748.   At the time of the box’s discovery, the defendant was

hospitalized. Id. at 747. Under these circumstances the Court found the evidence

insufficient to prove the defendant personally possessed or asserted a distinct and

conscious right to the property. Id. at 749. Rodriguez is distinguishable. The evidence

of appellant’s guilt is not limited to his possession of property.


       Viewing all the evidence in the light most favorable to the jury’s verdict, we

conclude the evidence was sufficient to convict appellant of the charged burglary

whether the jury believed he acted directly or as a party.           Appellant’s first issue is

overruled.


       By his second issue, appellant argues the jury’s affirmative finding to the deadly

weapon special issue was not supported by sufficient evidence.


       A “deadly weapon” is “(A) a firearm or anything manifestly designed, made, or

adapted for the purpose of inflicting death or serious bodily injury; or (B) anything that in

the manner of its use or intended use is capable of causing death or serious bodily

injury.” TEX. PENAL CODE ANN. § 1.07(a)(17) (West Supp. 2014). “A firearm is a deadly

weapon per se.” Ex parte Huskins, 176 S.W.3d 818, 820 (Tex. Crim. App. 2005).

Section 3g of Article 42.12 of the Texas Code of Criminal Procedure authorizes a trial

court to enter a deadly weapon finding in the judgment if a defendant has “used or

exhibited a deadly weapon during the commission of a felony offense or during

immediate flight therefrom.” TEX. CODE CRIM. PROC. ANN. art. 42.12, § 3g(a)(2) (West

Supp. 2014).



                                              8
       The charge contained the following instruction on the law of parties:


       A person is criminally responsible as a party to 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. Each party to an offense may be
       charged with commission of the crime.
       A person is criminally responsible for an offense committed by the conduct
       of another if while acting with intent to promote or assist the commission of
       the offense, he solicits, encourages, directs, aids, or attempts to aid the
       other person to commit the offense.

The trial court submitted the following special issue to which the jury responded “we do”:


       Do you find from the evidence beyond a reasonable doubt that the
       defendant, TERRY GLYNN SPEED, used or exhibited a deadly weapon,
       to-wit: A FIREARM, during the commission of the offense of Burglary of a
       Habitation as alleged in the indictment or the immediate flight therefrom,
       or that the defendant, Terry Glynn Speed, was a party to the offense and
       knew that a deadly weapon would be used or exhibited during the
       commission of the offense or immediate flight therefrom?

       Under the charge as given, the evidence we have recited supported a

reasonable belief by the jury that appellant was a party to the offense and knew of

Green’s use of a deadly weapon during the pair’s immediate flight from the commission

of burglary. That is, after pulling away from Cantu’s residence Green was unable to exit

the property through the closed back gate. Turning around toward the highway gate,

Green found insufficient space to drive around the roadblock created by the vehicles of

Berry and Cantu. He then fired a pistol in the direction of Berry or Cantu. Thereafter,

appellant exited Green’s Civic and moved Berry’s vehicle a sufficient distance that the

Civic could pass. Appellant then reentered Green’s vehicle and the two departed in the

direction of Joshua.    As sole judge of the weight and credibility of the evidence,

including witness testimony, the jury was entitled to disbelieve appellant’s testimony that



                                             9
he did not see Green with a gun or observe live or spent ammunition inside Green’s

vehicle. We overrule appellant’s second issue.


       By his third issue, appellant argues the trial court erred in refusing his requested

instruction on the lesser-included offense of theft.


       The trial court’s decision not to submit a lesser-included-offense instruction is

reviewed for abuse of discretion. Jackson v. State, 160 S.W.3d 568, 574 (Tex. Crim.

App. 2005); Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App. 2004). The

circumstances under which an offense is a lesser-included offense of another are

defined by statute. TEX. CODE CRIM. PROC. ANN. art. 37.09 (West 2006); Hall v. State,

225 S.W.3d 524, 527-28 (Tex. Crim. App. 2007).


       Texas courts apply a two-step test to determine whether a lesser-included-

offense instruction requested by a defendant must be given. Grey v. State, 298 S.W.3d

644, 645 (Tex. Crim. App. 2009). The first step examines whether the asserted lesser

offense is included within the proof necessary to establish the offense charged.

Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993); Royster v. State,

622 S.W.2d 442, 446 (Tex. Crim. App. 1981). Application of the first step of the test

involves a question of law. Hall, 225 S.W.3d at 535.


       The second step of the test considers whether there is evidence to permit the

jury rationally to find that the defendant, if guilty, is guilty only of the lesser offense.

Rousseau, 855 S.W.2d at 673; Nevarez v. State, 270 S.W.3d 691, 693 (Tex. App.—

Amarillo 2008, no pet.). Regardless of its strength or weakness, if any evidence raises

the issue that the defendant was guilty only of the lesser offense, then the charge must


                                             10
be given. Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App. 1992). However, it

is not enough that the jury might disbelieve crucial evidence pertaining to the greater

offense. Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994). There must be

some evidence “directly germane to a lesser included offense for the factfinder to

consider before an instruction on a lesser included offense is warranted.” Id. The

evidence must establish that the lesser offense is a valid, rational alternative to the

charged offense. Rice v. State, 333 S.W.3d 140, 145 (Tex. Crim. App. 2011).


       A person commits the offense of theft if he unlawfully appropriates property with

intent to deprive the owner of property. TEX. PENAL CODE ANN. § 31.03(a) (West Supp.

2014). The person unlawfully appropriates property if it is without the owner’s effective

consent or the property is stolen and the actor appropriates the property knowing it was

stolen by another. Id. § 31.03(b)(1), (2). Theft can be a lesser-included offense of

burglary. Phillips v. State, 178 S.W.3d 78, 82 (Tex. App.—Houston [1st Dist.] 2005, pet.

refused). Hence, for this discussion we assume the first step of the Rousseau test is

satisfied.


       Concerning the second step, we note appellant’s version of the events as

presented through his testimony.      Denying any wrongdoing whatsoever, appellant

portrayed himself and Green as unarmed, misdirected job seekers who fled the scene

amidst gunfire by unknown assailants. “A defendant’s own testimony that he committed

no offense, or testimony which otherwise shows that no offense occurred at all, is not

adequate to raise the issue of a lesser-included offense.” Lofton v. State, 45 S.W.3d

649, 652 (Tex. Crim. App. 2001). No evidence in the record establishes the offense of

theft as a valid, rational alternative to the charged offense of burglary. The second step

                                           11
of the Rousseau test is not satisfied. The trial court did not abuse its discretion by

refusing to charge the jury on theft as a lesser-included offense of burglary. Appellant’s

third issue is overruled.


                                       Conclusion


       Having overruled each of appellant’s issues on appeal, we affirm the judgment of

the trial court.




                                                James T. Campbell
                                                    Justice


Do not publish.




                                           12
