Opinion
No. 07-20-00054--CR
11-10-2020
RAY DANIEL GERHARDT, APPELLANT v. STATE OF TEXAS, APPELLEE
On Appeal from the 64th District Court of Hale County, Texas
Trial Court No. A20941-1810 , Honorable Robert W. Kincaid, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and PARKER and DOSS, JJ.
Ray Daniel Gerhardt appeals his conviction for burglary of a habitation through one issue. He contends that the evidence was insufficient to establish that he was a party to the offense. We affirm.
Statute provides that one "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). If those circumstances apply to an individual, he is considered a party to the offense. Furthermore, the State, through its indictment, accused appellant of "intentionally and knowingly enter[ing] a habitation, without the effective consent of [S.R.], the owner thereof, and attempt[ing] to commit or committ[ing] theft of property, to-wit: a firearm, owned by [S.R.]." After the close of evidence during the guilt phase of the trial, the court instructed the jury that:
Now, if you believe from the evidence . . . that on or about May 8, 2018, in Hale County, Texas, a person did then and there intentionally or knowingly enter a habitation, without the effective consent of [S.R.], the owner thereof, and attempted to commit or committed theft of property, to wit: a firearm, owned by [S.R.], and that the defendant, Ray Daniel Gerhardt, did then and there, acting with intent to promote or assist the commission of the offense, if any, aided, directed, encouraged, or attempted to aid the other person to commit the offense, if any, by his own actions and conduct during the commission of said offense, if any, then you will find the defendant, Ray Daniel Gerhardt, guilty of the offense of burglary of a habitation as charged in the indictment.
As can be seen from the charge, appellant was being tried as a party to burglary. And, prior to the foregoing instruction being given, the jury had before it evidence that: 1) S.R. was gone when a person in a gray hoodie walked through her backyard toward the back porch around 1:07 p.m.; 2) about six minutes later (around 1:13 p.m.) appellant's image was captured in the side yard of the house; 3) another image showed him approach a short fence by the rear alley; 4) at 1:13:31 a security camera at the rear of the house captured him walking toward the same porch to which the gray-hooded person walked minutes earlier; 5) appellant wore a cap and sunglasses at the time; 6) his gait appeared direct and unhesitating; 7) as he approached the porch, he spoke the name "Steve" several times; 8) "Steve" was his brother's name; 9) upon arriving at the porch he turned toward it and outside the camera's view; 10) at 1:14:12, the camera captured appellant leaving the porch and walking in the direction from which he came; and 11) shortly before 1:17, the hooded individual exited from the back porch with a case in hand and left in the same direction as did appellant minutes earlier.
Other evidence included appellant's admission, at trial, that he not only knew the occupants but also knew they were not home. So too did he attempt to explain his presence in the area by first stating that he intended to visit a nearby post office. Thereafter, he said he happened to be looking for his family dog named "Stevie Shorts," which dog was purportedly named, in part, after his brother "Steve." Allegedly, the reference to "Steve" captured in the video was him calling for "Stevie," though the name caught on the audio portion of the video was not "Stevie." Further questioning of appellant resulted in the dog's name being changed to "Stevie Bucks." So too did appellant volunteer his criminal history, which consisted of multiple convictions, including one for burglarizing a building.
No limiting instruction accompanied this particular testimony. Thus, the evidence of his prior burglary conviction became part of the general evidence of the case and susceptible for use as proof to the full extent of its rational persuasive power. See Garcia v. State, 887 S.W.2d 862, 878 (Tex. Crim. App. 1994) (en banc) (stating that "once evidence is received without a proper limiting instruction, it becomes part of the general evidence in the case and may be used as proof to the full extent of its rational persuasive power"); Cole v. State, 46 S.W.3d 427, 432 (Tex. App.—Fort Worth 2001, pet. ref'd) (stating the same).
The police officer investigating the incident also testified. Among other things, he said (without objection) that he had suspected appellant and his brother to be the burglars all along, approached them shortly after the incident, never heard anyone say anything about searching for a dog when discussing the burglary, knew of the dog, and never heard the dog being called "Stevie."
The pertinent standard of review is that discussed in Metcalf v. State, 597 S.W.3d 847 (Tex. Crim. App. 2020). Under it, the evidence is sufficient to support conviction if it permits a rational jury to find each element of the crime beyond reasonable doubt. Id. at 855. Not only must we view that evidence in a light most favorable to the verdict, but also may the jury draw reasonable inferences from it. Id. That jury is also free to judge the credibility of the witnesses and assign whatever weight they choose to their testimony. Id.
Given this standard of review and from the timing of the incident, appellant's presence as it occurred, his walking about the environs of the house as it occurred, his knowledge that the occupants were not home, the individual within the home exiting it within minutes of appellant uttering "Steve" and approaching the back porch, the inconsistencies within appellant's explanation for being in the area, his potential attempt at deception by explaining that he was calling for his dog "Stevie" when it was rather clear that the name he uttered was "Steve," and his involvement in another burglary, the jurors could have rationally inferred, beyond reasonable doubt, that appellant acted as lookout while another entered the home. See Francis v. State, No. 07-12-00238-CR, 2013 Tex. App. LEXIS 11659, at *5 (Tex. App.—Amarillo Sept. 12, 2013, pet. ref'd) (mem. op., not designated for publication) (noting that evidence of deceit or evasion can be considered by a factfinder as consciousness of guilt). A lookout, like the actual burglar, is criminally responsible for burglary under the law of parties. See Rollerson v. State, 227 S.W.3d 718, 726 (Tex. Crim. App. 2007) (so stating).
We overrule the sole issue before us and affirm the judgment.
Brian Quinn
Chief Justice Do not publish.