                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-16-00195-CR


                         BOBBY JACK WEST, JR., APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE

                           On Appeal from the 84th District Court
                                 Hutchinson County, Texas
               Trial Court No. 11,171, Honorable William D. Smith, Presiding

                                  December 18, 2017

                                       OPINION
                  Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

      Bobby Jack West, Jr. (appellant) appeals his convictions for burglary of a

habitation, theft of a firearm, and felon in possession of a firearm. Through four issues,

he contends that 1) his rights against double jeopardy were violated when he was

convicted of both burglary of a habitation and theft, 2) a mistrial should have been

granted when he was referred to as a “known narcotics user,” and 3) the evidence was

insufficient to prove he burglarized a habitation and possessed a firearm. We affirm.
       Background

       The circumstances began with the burglary of a home owned by S. Boren (Mrs.

Boren).      Three people were seen in her backyard and subsequently carrying away

property. The property was later identified to belong to Mrs. Boren and her husband. It

included rifles, tools, an ipad, and jewelry. Furthermore, a witness identified appellant

as one of the three seen with the property as the group departed the residence.

Following these events, the State indicted appellant.

       The indictment contained four counts. 1 Through the first, it was alleged that

appellant “did then and there intentionally and knowingly enter a habitation without the

effective consent of [S.] BOREN, the owner, and therein attempted to commit and

committed theft.”          The State alleged in the second count that he “unlawfully

appropriate[d] property, to wit: a Springfield 9mm pistol . . . and a Bushmaster rifle . . .

by exercising control over said property from [S.] BOREN without the effective consent

of [S.] Boren, the owner, thereof, and with intent to deprive said owner of said

property.” 2 The accusation of appellant being a felon who unlawfully possessed the

aforementioned firearms was encompassed within the third count. Upon trial by a jury,

appellant was found guilty of each count.

       Issue Three – Sufficient Evidence of Burglary

       We begin with addressing appellant’s third issue. Through it, he contends that

the evidence was insufficient to establish, beyond reasonable doubt, that he burglarized

a habitation. We overrule the issue.



       1   The fourth count was abandoned by the State prior to trial and is irrelevant here.

       2   The State later abandoned reference to the “Springfield 9mm pistol” in count two.

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        We most recently explained the pertinent standard of review in Carroll v. State,

No. 07-15-00363-CR, 2017 Tex. App. LEXIS 8849, at *4-5 (Tex. App.—Amarillo Sept.

19, 2017, no pet.) (mem. op., not designated for publication). We apply that standard

here.

        Next, the State charged appellant with violating § 30.02(a)(3) of the Texas Penal

Code. Under that statute, a person commits an offense “if, without the effective consent

of the owner, the person . . . enters a building or habitation and commits or attempts to

commit a . . .     theft.”   TEX. PENAL CODE ANN. § 30.02(a)(3) (West Supp. 2017).

Furthermore, a person commits theft if he unlawfully appropriates property with intent to

deprive the owner of it.     Id. § 31.03(a).   The elements of these two statutes were

incorporated into both the indictment and the jury charge on guilt / innocence.

        Also included in the jury charge was an instruction on the law of parties. That is,

the trial court informed the jury that 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.” See id. § 7.02(a)(2) (so defining liability as a party

to a crime committed by another person).           Given this charge, the State was not

necessarily obligated to prove that appellant himself entered the habitation to secure his

conviction for burglary. As said in Powell v. State, 194 S.W.3d 503 (Tex. Crim. App.

2006), “an individual may be guilty of burglary of a habitation even though he does not

personally enter the burglarized premises if he is acting together with another in the

commission of the offense.” Id. at 506-07; accord Riden v. State, No. 05-16-00096-CR,

2017 Tex. App. LEXIS 3657, at *11 (Tex. App.—Dallas Apr. 25, 2017 no pet.) (mem.



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op., not designated for publication) (stating the same).     With this said, we turn to the

evidence of record.

       Taken from within the home of Mrs. Boren was miscellaneous jewelry, a class

ring, a watch, an ipad, and diamond bracelet.           An AR-15 Bushmaster rifle and

accompanying case, a 9mm Springfield handgun and accompanying case, and tools

within a small case were also taken. Furthermore, entry into the abode was gained via

a backdoor that was seldom used; and an officer would later testify that it was

reportedly “kicked-in.”

       About the time the aforementioned items were taken, a witness saw two males

and a female enter the backyard of the home. Several minutes later the same witness

saw the female and one male exit the yard and leave in different directions. The male

wore blue jeans, a camouflage hat, and a t-shirt as he walked behind the car in which

the witness sat. The witness turned to watch him pass and noticed him carrying a long

black gun case and two smaller black cases.           Though the witness did not “fully

recognize” the person at first, she saw the same male later standing next to a police

officer, recognized him, and identified him as her cousin, i.e. appellant.

       The police had found appellant in the passenger seat of a car next to a shed. A

female sat next to him in the driver’s seat. It happened that the car was parked next to

the yard of a residence several blocks from the Boren house. During this encounter

with appellant, an officer noticed that appellant wore blue jeans and a t-shirt. Though

he appeared bare-headed, a camouflage cap was discovered within feet of appellant

outside the car and on the ground.




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      Appellant subsequently exited the car while sweating profusely and gave the

officers consent to search one of his pockets. Therein, the officers discovered the

diamond bracelet belonging to Mrs. Boren and taken that morning from her house. A

search of the area and nearby shed also uncovered a long black gun case containing

the Bushmaster rifle, a small gun case holding the 9mm pistol, and the tool kit removed

from the Boren house. Officers also found latex gloves in the back seat of the vehicle.

      Other officers would eventually conduct a search of the residence at which the

car was located. That search would uncover Mr. Boren’s ipad and Mrs. Boren’s jewelry,

including her class ring. A male and female (Rendon and Whinery, respectively) were

also found trying to hide in different parts of the house as the police conducted their

search.

      Mr. and Mrs. Boren testified that they did not know appellant, Rendon, or

Whinery. So too did they deny giving any of them permission to remove property from

their home.

      Evidence of the rear door of the Boren house being forcibly opened; of two males

and a female being in the Boren backyard; of appellant being one of the three; of

appellant carrying away a rifle, a handgun, and a tool kit previously within the home; of

appellant possessing the stolen diamond bracelet in his pocket; of the rifle, handgun,

and tool kit being found in or by a shed within feet of appellant; of other property taken

from the Boren home being found within the house wherein another male and female

attempted to avoid discovery by the police; and of the three lacking permission from the

Boren’s to possess the property is some evidence from which a rational fact-finder could

reasonably infer, beyond reasonable doubt, that appellant was, at the very least, a party



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to the burglary of Mrs. Boren’s home. There was ample evidence of entry without

permission coupled with the commission of a theft.

      Issue Four – Sufficient Evidence of Felon Possessing a Firearm

      We next address the argument that the State failed to prove that appellant, a

felon, possessed a firearm. He posits that no evidence linked him to the firearms taken

from the Boren house.        The litany of evidence we described above negates the

contention, however. Appellant’s not only wearing the clothes that matched the male

who carried away the long black gun case holding the Bushmaster AR-15 rifle described

in the indictment but also being identified by his cousin as the person who carried away

the item was some evidence enabling a rational jury to conclude, beyond reasonable

doubt, that appellant possessed the rifle. We overrule the issue.

      Issue Two – Mistrial

      Next, we address appellant’s second issue wherein he asserts that the trial court

erred when it refused to grant him a mistrial. He believed himself entitled to same after

a police officer said he knew appellant used drugs. The trial court sustained appellant’s

objection to the comment and directed the jurors to disregard it. Yet, the court did not

grant appellant a mistrial after he requested same.        Appellant suggests that the

utterance was so inflammatory and prejudicial that the trial court’s instruction to

disregard was insufficient to cure such adverse impact caused by the comment; thus,

he should have been granted a mistrial. We overrule the issue.

      The record discloses that an officer other than the one who made the

aforementioned comment testified at trial as well. That officer also happened to allude

to appellant as a possible abuser of narcotics.      This occurred when the policeman



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described appellant as sweating profusely. When asked why one would so sweat, the

witness replied: “either that someone was exerting themselves or possibly that there

was narcotics.” No one objected to this comment, thus, it lay before the jurors to

consider as they sought fit. See Van Anden v. State, No. 07-16-00180-CR, 2016 Tex.

App. LEXIS 13136, at *7-8 (Tex. App.—Amarillo Dec. 9, 2016, no pet.) (mem. op., not

designated for publication) (holding that because no one objected to the evidence and

the trial court did not condition its admission in any way, it was before the jury for all

purposes). So, any harm caused by the first officer’s comment was cured when the

second officer also injected into the trial, without objection, the topic of appellant’s

potential drug use. See Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003)

(stating that error in the admission of evidence is cured when the same evidence comes

in elsewhere without objection). 3

        Issue One – Double Jeopardy

        The next and final issue we address is the contention that the Fifth Amendment

prohibition against twice punishing someone for the same offense was violated. This

violation allegedly occurred when the State indicted appellant for and the jury convicted

him of both burglary under count one and theft under count two. We overrule the issue.

        Normally, a claim of double jeopardy must be preserved.                    One does this by

raising the matter “at or before the time the charge [is] submitted to the jury.” Gonzalez

v. State, 8 S.W.3d 640, 642 (Tex. Crim. App. 2000) (stating that “we agree with the

Court of Appeals that appellant had the burden to ‘preserve, in some fashion, a double


         3 Our consideration of the objectionable comment, the evidence of appellant’s guilt, and other

pertinent data in the record also leads us to conclude that the comment did not give rise to the type of
prejudice deemed incurable by an instruction to disregard. Thus, we would be unable to find that the trial
court erred in denying a mistrial even if the second officer withheld his comment at trial.

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jeopardy objection at or before the time the charge [was] submitted to the jury’”); Kalie v.

State, No. 09-11-00352-CR, 2012 Tex. App. LEXIS 5112, at *7-8 (Tex. App.—

Beaumont June 20, 2012, no pet.) (mem. op., not designated for publication). That was

not done here. Rather, appellant raised the claim via a motion for new trial after being

tried, convicted, and sentenced. So, he failed to preserve his complaint. Yet, there is an

exception to the preservation rule described in Gonzalez.

       As said in Ex parte Denton, 399 S.W.3d 540 (Tex. Crim. App. 2013), “a double-

jeopardy claim may be raised for the first time on appeal or on collateral attack if two

conditions are met: 1) the undisputed facts show that the double-jeopardy violation is

clearly apparent on the face of the record; and 2) when enforcement of the usual rules

of procedural default serves no legitimate state interest.” Id. at 544-45. The court

further explained that the claim is apparent on the face of the record if its resolution

does not require additional proceedings for the purpose of introducing more evidence to

support it. Id. Yet, our Court of Criminal Appeals cautioned, in Langs v. State, 183

S.W.3d 680 (Tex. Crim. App. 2006), that the fact a jury’s verdict “could have relied on a

theory that would violate the Double Jeopardy Clause, is not sufficient to show a

constitutional violation is ‘clearly apparent on the face of the record.’”      Id. at 687

(emphasis in original). That is the situation here, as we will explain.

       There are three distinct types of double jeopardy claims. The first encompasses

a second prosecution for the same offense after an acquittal while the second and third

involve another prosecution for the same offense after a conviction and multiple

punishments for the same offense, respectively. Bigon v. State, 252 S.W.3d 360, 369




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(Tex. Crim. App. 2008). Appellant attempts to place his convictions under count one

and two within the latter of the three types of jeopardy.

       He observes that authority generally prevents an accused charged with burglary

under § 30.02(a)(3) of the Penal Code from being punished for both the burglary and

the commission of the underlying offense on which the burglary was dependent.

Admittedly, the proposition has the support of authority. See, e.g., Duran v. State, 492

S.W.3d 741, 745 (Tex. Crim. App. 2016) (holding that a defendant may not be punished

for both the underlying felony and burglary if the burglary allegation is that the defendant

entered a home and then committed the underlying felony); Langs, 183 S.W.3d at 686

(holding the same).     So, because the State charged appellant via count one with

burglary by entering the habitation of Mrs. Boren and attempting to or committing a

“theft” and via count two with theft of Mrs. Boren’s “Bushmaster rifle” taken during the

burglary, he allegedly was being punished twice for the same offense per Duran and

Lang. That is where the argument begins to falter, though.

       The gravamen of theft is the ownership and deprivation of “specific property.”

Byrd v. State, 336 S.W.3d 242, 257 (Tex. Crim. App. 2011) (emphasis added). This is

why the jury charge in a case of theft must not only name the owner of the property

taken but also describe the property; such information is “necessary both to give the

defendant notice of the charged offense and to protect him against double jeopardy.”

Id.   Consequently, the combination of those two elements (i.e. ownership and specific

property) generally determines the unit of prosecution.     Johnson v. State, 364 S.W.3d

292, 297 (Tex. Crim. App. 2012) (stating that “[t]heft has two gravamina: the property

and ownership” and while “[t]hese elements alone do not always define the allowable



                                             9
unit of prosecution for theft (property can be jointly owned) . . . the allowable unit of

prosecution can at least be derived from the combination of these elements”). So,

“different property taken from different persons are different thefts,” Johnson, 364

S.W.3d at 297, even if the property were taken from the different owners during the

same incident.

      For instance, in Iglehart v. State, 837 S.W.2d 122 (Tex. Crim. App. 1992), the

defendant was being tried for misdemeanor theft of property belonging to Robert

LaVaye and felony theft of property belonging to Valerie LaVaye.          Moreover, the

property was taken during the same burglary of the LaVaye home. Id. at 124-25. Given

these circumstances, the defendant asserted that his constitutional protection against

double jeopardy was being violated due to the multiple prosecutions. The Court of

Criminal Appeals disagreed. It did so because the misdemeanor prosecution required

proof that Iglehart “appropriated a typewriter and pistol with the intent to deprive the

owner, Robert LaVaye, of said property” while “the felony theft prosecution would

require proof that appellant appropriated a fur coat and certain stereo equipment with

the intent to deprive the owner, Valerie LaVaye, of said property.” Id. at 128. “Each

offense requires the State to prove facts not essential to the other prosecution, namely

the items stolen and the ownership thereof.” Id. “[T]he theft from Valerie LaVaye could

be successfully prosecuted without the need to prove that her father’s separate property

was taken during the same transaction.” Id. So, appellant was not being punished

twice for the same offense, for purposes of double jeopardy. Id.

      Applying Iglehart and Johnson here leads us to conclude that the double

jeopardy claim of appellant is not clear from the record. This is so because the unit of



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prosecution described in the theft charge memorialized in count two was the

Bushmaster rifle allegedly owned by Mrs. Boren. Yet, as discussed above, the record

illustrates that appellant took more than that rifle. While he committed one burglary, the

latter involved the taking of multiple items of property (e.g., ipad, class ring, two

firearms, tools and miscellaneous jewelry) from different owners of those items (e.g.,

Mr. Boren and his ipad and tool kit and Mrs. Boren and her class ring).                                  More

importantly, neither the indictment nor the jury charge described the specific property

taken or its owner when alluding to the theft elemental to the burglary charged in count

one. So, the jury was not obligated to find that the “theft” mentioned in count one

encompassed the Bushmaster rifle of Mrs. Boren. It could well have found appellant

guilty of burglary because he stole Mr. Boren’s ipad or tools or some other property of

Mrs. Boren. 4 And, given that his ipad and tools formed a separate unit of prosecution,

appellant could have been prosecuted and convicted of stealing both Mr. Boren’s ipad

and Mrs, Boren’s rifle without implicating double jeopardy. See Iglehart v. State, supra.

        Simply put, the elements of the theft in count two may not have been the

elements of the theft in count one, and the appellate record does not clarify the matter.

Maybe the jury found that appellant took Mrs. Boren’s rifle for purposes of both thefts.

Maybe they found that he took Mr. Boren’s ipad or tools for purposes of the theft in

count one. We do not know. At the very least, additional proceedings would be needed

to determine the basis of the jury’s finding of theft under count one, assuming of course

that such proceedings could even take place.                     Consequently, appellant’s claim of


         4 Indeed, the trial court included in its jury charge and instruction on the lesser included offense of

mere theft immediately after the application paragraph on burglary. Consideration of the lesser offense
was conditioned on the jury finding appellant “not guilty” of burglary, and the unit of prosecution described
in it consisted of Mrs. Boren and her diamond bracelet.

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jeopardy is not apparent on the face of the record for purposes of allowing us to address

it under Denton. In other words, it was not sufficiently preserved for review.

       Having overruled each of appellant’s issues, we affirm the three judgments

executed by the trial court.



                                                        Brian Quinn
                                                        Chief Justice




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