
NO. 07-08-0214-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

DECEMBER 5, 2008
______________________________

OLIVER ALEXANDER CALLENDER III, 

                                                                                                 Appellant

v.

THE STATE OF TEXAS, 

                                                                                                 Appellee
_________________________________

FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;

NO. 19,375-C; HON. ANA ESTEVEZ, PRESIDING
_______________________________

Memorandum Opinion
_______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
          Oliver Alexander Callender III was convicted of burglarizing a habitation.  He
challenges that conviction by contending  the trial court should have instructed the jury on
the law of parties.  We disagree and affirm the judgment. 
          A defendant is criminally responsible, as a party, for an offense committed by
another if, with the intent to promote or assist in 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)(Vernon 2003); Shelton v. State, 41 S.W.3d 208, 212 (Tex.
App.–Austin 2001, pet. ref’d).  The law of parties may be applied to the facts of a case
even though there is no such allegation in the indictment.  Marable v. State, 85 S.W.3d 287
(Tex. Crim. App. 2002).  Further, a defendant is entitled to have the law of parties included
in the jury instructions when there is evidence that the defendant acted as a party and the
State advances that theory.  Ruiz v. State, 766 S.W.2d 324, 326 (Tex. App.–Houston [14th
Dist.] 1987, no pet.).  Finally, if the evidence shows that two or more individuals actively
participated in the offense, the trial court undertakes a two-pronged analysis to determine
whether a parties charge is appropriate.  It initially removes from consideration the acts and
conduct of the non-defendant actors and then assesses whether the evidence of the
defendant’s own conduct alone would be sufficient to sustain a conviction.  McCuin v.
State, 505 S.W.2d 827, 830 (Tex. Crim. App. 1974).  If the answer to the latter prong is
yes, then a parties charge is not required.  Id. 
          Here, the evidence shows that Jimmy Henry, his wife Sharon, and daughter Ashland
left the house by 7 a.m. on September 12, 2007.  When they returned home for lunch, they
discovered 1) the deadbolt on the front door had been engaged although it had not been
when they left, 2) the back gate was open, 3) the back door had been forced open and the
door leading to the garage was open, 4) a weed eater and tools were moved into the living
room, 5) computers, monitors, a television, and a DVD player had been unplugged and
placed in such a way as to suggest that the intruder was planning to take them, 6) each of
the three bedrooms had been ransacked, and 7) numerous items of personalty were
missing from the home.  Though none of the family members knew appellant, his
fingerprints were found on the bottom of the DVD player and on a cell phone box from
which the cell phone had been removed.  The DVD player had been purchased eight
months earlier in a packaged box.
          Absent from the record is any direct evidence of others being in the house besides
appellant.  Nonetheless, appellant argues that the presence of other associates could be
inferred from the general upheaval encountered in the house and the magnitude of items
moved or taken.  If we were to ignore those indicia allegedly suggesting that others were
present, we would still find appellant’s fingerprints on various items of displaced property
within the home.  That would be enough to warrant his conviction for burglary when
coupled with the evidence that no one in the family knew him; those circumstances place
him in the home gathering personalty without the owner’s knowledge or permission. 
Consequently, the conduct of others was not needed to establish his guilt, which, according
to McCuin, means that the trial court was not obligated to instruct the jury on the law of
parties.   
          Accordingly, we overrule appellant’s issue and affirm the judgment.
 
                                                                           Per Curiam                                                                    
Do not publish.
