A presumption is a legal inference that a fact exists if the facts giving rise to the presumption~.an inference is a conclusion

Actuary "Ezekial 25:17 - The path of the righteous man is beset on all sides by the inequites of the selfish and the tyranny of evil men. Blessed is he that shepherds the weak from the valley of darkness for he is truly his brother's keeper, and the finder of lost children. And I will strike down upon thee with great vengeance and furious anger those who attempt to poison and destroy my brothers, and you will know my name is the Lord when I lay my vengeance upon thee."
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NUMBER 13-06-295-CR


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG



EMERICO GARCIA, II, Appellant,


v.


THE STATE OF TEXAS , Appellee.

On appeal from the 105th District Court of Kleberg County, Texas.



MEMORANDUM OPINION


Before Justices Yañez, Rodriguez, and Garza

Memorandum Opinion by Justice Yañez

A jury found appellant, Emerico Garcia, II, guilty of burglary of a building under the law of parties. (1) The trial court assessed punishment at two years' imprisonment, suspended for five years. The court also imposed restitution, a fine of $1,000.00, and $318.00 in court costs. On appeal, appellant asserts that the evidence is legally and factually insufficient to support his conviction, and that he was denied his right to a unanimous verdict. The State did not file a brief. Because we conclude the evidence is legally insufficient to show appellant committed burglary of a building, we reverse the trial court's judgment and render a judgment of acquittal. (2)

I. Background

On April 21, 2006, appellant and Jose Jimenez, appellant's step-father, were both indicted on two counts of burglary of a building. As to appellant, the indictment alleged through two counts that on August 15, 2005, appellant entered a building that was not open to the public, with the intent to commit theft, and without the effective consent of the building's owner, Roger Polly. Appellant and Jimenez were tried together and were both found guilty. (3) As to count one, appellant was found guilty of burglary under the law of parties. He was found not guilty as to count two.

II. The Evidence

1. Testimony of Roger Polly

Appellant and Jimenez worked for Roger Polly at the time of the burglary. Items belonging to Polly were stolen from his "shed" and "Connex building." Roughly 50 videotapes were taken from the Connex building, while a battery charger and two grinders were taken from the shed. On the evening of August 15, 2005, Polly learned that these items had been stolen when an employee informed him that Victor Hernandez, who was also one of Polly's employees, had reported seeing Jimenez take "a bunch of stuff" out of the shed and Connex building. The next morning, Polly inspected the inside of the two buildings, whereupon he noticed that various items were missing. Polly then talked to Hernandez about what he had observed, and the two subsequently contacted law enforcement authorities.

2. Testimony of Victor Hernandez

On the morning of August 15, 2005, Hernandez, Jimenez, and appellant went to Polly's house to paint trailers. When they arrived at Polly's home, Jimenez parked his vehicle near the Connex building. Later that day, Hernandez and appellant walked to a nearby pond; from the pond, Hernandez saw Jimenez enter one of the two buildings and load two boxes into the trunk of his vehicle. He was not able to tell what, if anything, was contained within the two boxes. Hernandez never witnessed appellant take any items, nor did he witness appellant assist Jimenez in taking items.

3. Testimony of David Alberto Mendoza

David Alberto Mendoza is a deputy sheriff with the Kleberg County Sheriff's Office. After talking with Polly and Hernandez, Mendoza contacted appellant and asked if he would come to the sheriff's office to speak with him. Appellant met with Mendoza and provided him with a written statement, which stated the following:

Victor Hernandez had told me the [sic] Jose Jimenez had took [sic] a bag full of videotapes and had put them in the trunk of the car. Jose had told me and Victor that Mr. Polly was probably going to throw them away anyway. On August 18, 2005 is when I had went [sic] to go watch a video with Jose and from what I saw there was about close to a 100 video's [sic] there at the house. I was also there when Jose bought that tool set. Jose had also took [sic] a case of freeon [sic] cans to my grandfathers [sic] house. Victor had also told me that he also took a bag of videotapes also. When we were working at Mr. Polly's home Jose would tell me to watch to see if Mr. Polly was coming and he told me to whistle or throw a rock at the shed. Victor would also go in there with Jose to see what was in there. I had watched two videos with Jose and the movies where [sic] Pearl Harbor and an old western movie. Jose and Victor had taken the bags of videotapes days before and I knew that they were Mr. Polly's video's [sic] because Jose had told me. I Emerico H. Garcia II did not take anything from Mr. Polly's home.

I want to add that on the last day of work I had saw [sic] Jose with the paint pot and he put it in the trunk and we came home and he unloaded it and I saw that he put it behind his shed. There was a paint gun attached to the hoses and the pot it's self [sic].


After receiving appellant's statement, Mendoza went to Jimenez's home. (4) When he arrived at the home, Jimenez's wife (appellant's mother) consented to Mendoza entering the home. Mendoza recovered several videotapes belonging to Polly inside the home; no other items belonging to Polly, however, were ever recovered.

4. Additional Witness Testimony

David Longoria, a patrol lieutenant for the Kleberg County Sheriff's Office, testified that he observed appellant write his statement to Mendoza. According to Longoria, the statement was written voluntarily.

Jimenez testified that he did place two boxes into his trunk as witnessed by Hernandez, but that the boxes did not contain any items belonging to Polly. With regard to the videotapes found in his home, Jimenez alleged that the videotapes were given to him by Hernandez, who claimed to have found them in Polly's trash. Jimenez further stated that, according to appellant, appellant's statement to Mendoza was not written voluntarily.

Appellant testified that Mendoza told him what to write in his statement. Appellant further stated that when he refused to write the statement, Mendoza threatened to place him in jail.

III. Legal Sufficiency of the Evidence

In assessing the legal sufficiency of the evidence to support a criminal conviction, we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt. (5) The reviewing court must give deference to "the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." (6) In reviewing the sufficiency of the evidence, we should look at "events occurring before, during and after the commission of the offense and may rely on actions of the defendant which show an understanding and common design to do the prohibited act." (7) Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. (8) Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. (9) On appeal, the same standard of review is used for both circumstantial and direct evidence cases. (10)

IV. Discussion

For the jury to find appellant guilty under count one, the State had to prove beyond a reasonable doubt that (1) Jose Jimenez, (2) on or about August 15, 2005, (3) in Kleberg County, Texas, (4) did then and there, (5) with the intent to commit theft, (6) enter (7) a building not then open to the public, (8) without the effective consent of (9) Roger Polly, the owner thereof, and (10) appellant, (11) did then and there (12) with the intent to promote or assist the commission of the offense, (13) solicit, encourage, direct, aid or attempt to aid Jose Jimenez (14) to commit the offense of burglary of a building. After reviewing all the evidence in the light most favorable to the verdict, we find that there is no evidence to support the contention that appellant solicited, encouraged, directed, aided, or attempted to aid Jose Jimenez in committing burglary.

The only witness who attempts to implicate appellant for the offense charged is Mendoza, and this is done through his presentation of appellant's written statement. The statement largely reveals that appellant was aware that Hernandez and Jimenez had stolen items from Polly; it further reveals that appellant may have been present during these thefts. Appellant's mere presence and knowledge of the crime, however, is insufficient to support his conviction for the crime. (11)

The only evidence supporting appellant's guilt under a party theory is the following excerpt from appellant's statement: "When we were working at Mr. Polly's home Jose would tell me to watch to see if Mr. Polly was coming and he told me to whistle or throw a rock at the shed." This excerpt, however, does not establish that appellant actually stood watch and alerted Jimenez to the presence of others; it simply indicates that appellant was asked to do so, without any indication as to whether he actually complied. We are thus confronted with the question as to whether the jury could reasonably conclude that appellant complied with Jimenez's requests.

The Texas Court of Criminal Appeals recently addressed the proper use of "inference stacking" in criminal legal sufficiency review. In Hooper v. State, the court stated:

Under Jackson v. Virginia, courts of appeals assessing legal sufficiency are to consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt.

Under the Jackson test, we permit juries to draw multiple reasonable inferences as long as each inference is supported by the evidence presented at trial. However, juries are not permitted to come to conclusions based on mere speculation or factually unsupported inferences or presumptions. To correctly apply the Jackson standard, it is vital that courts of appeals understand the difference between a reasonable inference supported by the evidence at trial, speculation, and a presumption. A presumption is a legal inference that a fact exists if the facts giving rise to the presumption are proven beyond a reasonable doubt. . . . In contrast, an inference is a conclusion reached by considering other facts and deducing a logical consequence from them. Speculation is mere theorizing or guessing about the possible meaning of facts and evidence presented. A conclusion reached by speculation may not be completely unreasonable, but it is not sufficiently based on facts or evidence to support a finding beyond a reasonable doubt.

As stated above, juries are permitted to draw multiple reasonable inferences from the evidence (direct or circumstantial), but they are not permitted to draw conclusions based on speculation. . . . (12)


In the instant case, concluding that appellant aided Jimenez in committing burglary would be predicated upon factually unsupported inferences or presumptions. The testimony of Polly, Hernandez, Jimenez, and appellant does not provide any support for such a conclusion. Therefore, concluding that appellant complied with Jimenez's requests would be based on mere speculation--"mere theorizing or guessing about the possible meaning of facts and evidence presented." (13) Because the jury could not, on speculation alone, find--beyond a reasonable doubt--that appellant solicited, encouraged, directed, aided or attempted to aid Jimenez in committing burglary, we find that the evidence is legally insufficient to support appellant's conviction. Accordingly, we sustain appellant's first issue.

V. Conclusion

We reverse the judgment of the trial court and render a judgment of acquittal.




LINDA REYNA YAÑEZ,

Justice




Do not publish. Tex. R. App. P. 47.2(b).


Memorandum opinion delivered and filed

this the 2nd day of August, 2007.

1. Tex. Penal Code Ann. § 30.02(a)(1) (Vernon 2003).

2. Because we conclude that the evidence is legally insufficient to sustain appellant's conviction, we need not address appellant's remaining issues. See Tex. R. App. P. 47.1.

3. The propriety of Jimenez's conviction is not an issue before this Court.

4. Testimony at trial appears to reveal that Jimenez and appellant did not live at the same location.

5. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim. App. 2006); Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004).

6. Jackson, 443 U.S. at 318-19.

7. Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985).

8. See Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993) ("It is not necessary that every fact point directly and independently to the defendant's guilt; it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances."); Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994); Alexander v. State, 740 S.W.2d 749, 758 (Tex. Crim. App. 1987).

9. Guevara, 152 S.W.3d at 49.

10. Id.

11. Emmett v. State, 654 S.W.2d 48, 49 (Tex. Crim. App. 1983) (holding that one is not "an accomplice witness merely because he knew of the crime but failed to disclose it or even concealed it"); Brown v. State, 640 S.W.2d 275, 279 (Tex. Crim. App. 1982) (holding that "mere presence at the scene of a crime is insufficient to make a witness an accomplice"); Russell v. State, 598 S.W.2d 238, 249 (Tex. Crim. App. 1980); Arney v. State, 580 S.W.2d 836, 839 (Tex. Crim. App. 1979), abrogated in part on other grounds by Giesberg v. State, 984 S.W.2d 245, 247-48 (Tex. Crim. App. 1998).

12. Hooper v. State, 214 S.W.3d 9, 15-16 (Tex. Crim. App. 2007) (emphasis added; citations and footnotes omitted).

13. Id. at 16.

The Child’s Experience With Trauma~ the length of exposure is also extended by repeated images on television, regardless of their location.

Actuary "Ezekial 25:17 - The path of the righteous man is beset on all sides by the inequites of the selfish and the tyranny of evil men. Blessed is he that shepherds the weak from the valley of darkness for he is truly his brother's keeper, and the finder of lost children. And I will strike down upon thee with great vengeance and furious anger those who attempt to poison and destroy my brothers, and you will know my name is the Lord when I lay my vengeance upon thee."
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Identifying Seriously Traumatized Children:
Tips for Parents and Educators
National Association of School Psychologists

Events such as the Oklahoma City bombing, terrorist attacks in New York and Washington, DC, and even natural disasters such as tornadoes and floods place everyone at risk for some degree of trauma reaction. It is normal and expected that most children will experience some symptoms of acute distress—shock, crying, anger, confusion, fear, sadness, grief and pessimism. Depending on circumstances, particularly the additional trauma of loss of family members, most children will experience a gradual lessening of these symptoms over the days and weeks following the event and will be able to resume normal routines and activities with little change in performance. However, a large-scale crisis event places a significant number of children are at risk for severe stress reactions.

It is important to recognize that severe psychological distress is not simply a consequence of experiencing a threatening and/or frightening event; it is also a consequence of how a child experiences the event, coupled with his or her own unique vulnerabilities. If a child you are teaching or caring for has had experiences and risk factors such as those described below, you may need to consider a referral to a mental health professional such as a school psychologist or a private practitioner.
The Child’s Experience With Trauma

How traumatic is the event for a given child? The degree of psychological distress is associated with several factors:

1. Exposure. The closer a child is to the location of a threatening and/or frightening event, and the longer the exposure, the greater the likelihood of severe distress. Thus children living near, or whose parents work at or near, the site terrorist attacks, a school shooting, or a severe tornado are at greater risk than children living far away. However, for many children, the length of exposure is also extended by repeated images on television, regardless of their location.

2. Relationships. Having relationships with the victims of a disaster (i.e., those who were killed, injured, and/or threatened) is strongly associated with psychological distress. The stronger the child’s relationships with the victims, the greater the likelihood of severe distress. Children who lost a caregiver are most at risk.

3. Initial reactions. How children first respond to trauma will greatly influence how effectively they deal with stress in the aftermath. Those who display more severe reactions (e.g., become hysterical or panic) are at greater risk for the type of distress that will require mental health assistance.

4. Perceived threat. The child’s subjective understanding of the traumatic event can be more important than the event itself. Simply stated, severely distressed children will report perceiving the event as extremely threatening and/or frightening. Among the factors influencing children’s threat perceptions are the reactions of significant adult caregivers. Events that initially are not perceived as threatening and/or frightening may become so after observing the panic reactions of parents or teachers. In addition, it is important to keep in mind that children may not view a traumatic event as threatening because they are too developmentally immature to understand the potential danger. Conversely, unusually bright children may be more vulnerable to stress because they understand the magnitude of a disaster.

Personal Factors Related to Severe Distress

Personal experiences and characteristics can place children at risk for severe stress reactions following traumatic events. These include the following

1. Family factors. Children who are not living with a nuclear family member, have been exposed to family violence, have a family history of mental illness, and/or have caregivers who are severely distressed by the disaster are more likely themselves to be severely distressed.

2. Social factors. Children who must face a disaster without supportive and nurturing friends or relatives suffer more than those who have at lease one source of such support.

3. Mental health. The child who had mental health problems (such as depression or anxiety disorders) before experiencing a disaster will be more likely to be severely distressed by a traumatic event.

4. Developmental level. Although young children, in some respects, may be protected from the emotional impact of traumatic events (because they don’t recognize the threat), once they perceive a situation as threatening, younger children are more likely to experience severe stress reactions than are older children.

5. Previous disaster experience. Children who have experienced previous threatening and/or frightening events are more likely to experience severe reactions to a subsequent disaster event severe psychological distress.

Symptoms of Severe Stress Disorders

The most severely distressed children are at risk for developing conditions known as Acute Stress Disorder (ASD) or Posttraumatic Stress Disorder (PTSD). Only a trained mental health professional can diagnose ASD and/or PTSD, but there are symptoms that parents, teachers, and caregivers can look out for in high-risk children. Symptoms for ASD and PTSD are similar and include:

1. Re-experiencing of the trauma during play or dreams. For example, children may: repeatedly act out what happened when playing with toys; have many distressing dreams about the trauma; be distressed when exposed to events that resemble the trauma event or at the anniversary of the event; act or feel as if the event is happening again.

2. Avoidance of reminders of the trauma and general numbness to all emotional topics. For example, children may avoid all activities that remind them of the trauma; withdraw from other people; have difficulty feeling positive emotions.

3. Increased "arousal" symptoms. For example, children may have difficulty falling or staying asleep; be irritable or quick to anger; have difficulty concentrating; startle more easily.

ASD is distinguished from PTSD primarily in terms of duration. Symptoms of ASD occur within four weeks of the traumatic event, but then go away. If a youngster is diagnosed with ASD and the symptoms continue beyond a month, your child’s mental health professional may consider changing the diagnosis to PTSD.
Know the Signs and Get Help if Necessary

Parents and other significant adults can help reduce potentially severe psychological effects of a traumatic event by being observant of children who might be at greater risk and getting them help immediately. Knowledge of the factors that can contribute to severe psychological distress (e.g., closeness to the disaster site, familiarity with disaster victims, initial reactions, threat perceptions and personal vulnerabilities) can help adults distinguish those children who are likely to manage their distress more or less independently from those who are likely to have difficulties that may require mental health assistance.

The mental health service providers who are part of the school system—school psychologists, social workers and counselors—can help teachers, administrators and parents identify children in need of extra help and can also help identify appropriate referral resources in the community. Distinguishing “normal” from extreme reactions to trauma requires training and any concern about a child should be referred to a mental health professional.

For further information about the signs and symptoms of AST and PTSD in children and adolescents, please refer to the National Center for PTSD at the following website: http://www.ncptsd.org/facts/specific/fs_children.html or the National Association of School Psychologists www.nasponline.org

Adapted from “Identifying Psychological Trauma Victims,” by Stephen E. Brock . In Best Practices in School Crisis Prevention and Intervention, edited by S. E. Brock, P. J. Lazarus, and S. J. Jimerson (2001), National Association of School Psychologists. Modified from the article posted on the NASP website in September 2001.

© 2002, National Association of School Psychologists, 4340 East West Highway, Suite 402, Bethesda, MD 20814, (301) 657-0270, Fax (301) 657-0275; www.nasponline.org

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