By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law

2001 Case Summaries     2000 Case Summaries     1999 Case Summaries

School law enforcement officer had reasonable suspicion to stop student carrying woman’s jewelry [In re B.F.] (00-4-19).

On November 12, 2000, the Houston First District Court of Appeals held that a school law enforcement officer had reasonable suspicion to stop a student in the halls whom he saw carrying ladies jewelry; accomplice corroboration in burglary adjudication hearing was sufficient.

¶ 00-4-19. In the Matter of B.F., UNPUBLISHED, No. 01-98-01393-CV, 2000 WL 1641123, 2000 Tex.App.Lexis ___ (Tex.App.--Houston [1st Dist.] 11/2/00)[Texas Juvenile Law (5th Edition 2000)].

Facts: In three points of error, B.F., a juvenile, contests the trial court's denial of his motion to suppress evidence and the jury's determination that he engaged in delinquent conduct when he burglarized a home. We affirm.

On April 20, 1998, the LeFiles family discovered someone had broken into and vandalized their home in Sugar Land, Texas. The burglars cut the electricity to the house to disable the burglar alarm. They slashed the water beds in two bedrooms with a knife, and threw clothing, electronics, and other personal items in the bedrooms into the water on the leaking beds. In the kitchen, dining room, and living areas, the burglars threw the family's possessions onto the floor and broke many items. Jewelry, a video recorder, a stereo, and other items were stolen. Several witnesses stated the home had been "trashed."

Significantly, the bedroom of the LeFiles' middle-school- age son was left relatively undamaged. Also, the family dog had been locked in a bedroom that the family used as a computer room.

Deputy St. Hilaire and Deputy Kapche of the Fort Bend County Sheriff's Department investigated the burglary. Several facts suggested to them that one or more juveniles had committed the burglary. The burglars had entered the home through a dog door in the master bedroom, an opening too small for an adult. Fingerprints that the officers found at the scene were from small hands. Candy had been taken from a dish in the living room and the wrappers left behind. Although some valuable jewelry had been taken, a significant amount of jewelry that an adult burglar would have identified as valuable was not. Conversely, some jewelry that was not valuable, such as charms and Mickey Mouse earrings, was taken. Also, in the officers' experience, an adult burglar would not have spent time vandalizing the home.

The deputies also hypothesized that the burglars knew the family. Only someone who had been in the home would have known there was a dog door in the master bedroom. The family dog, a large labrador retriever, was not friendly to strangers; whoever had committed the burglary had been able to subdue the dog and put him in the computer room. Finally, the fact that the son's room was the least damaged indicated the perpetrators may have known him.

Two days after the burglary, Officer Harvey of the Fort Bend I.S.D. Police Department stopped the appellant in the hall at Marcario Garcia Middle School around 5:15 p.m. Officer Harvey had stopped B.F., a student at the school, on several occasions for being in the building after hours and for violating other school rules. Officer Harvey noticed that B.F. was holding some jewelry, and asked to see it. B.F. handed the jewelry, a ladies' tennis bracelet with 60 diamonds and a ladies' gold class ring (B.F. is male), to the officer. Because the jewelry was not the type that a child of B.F.'s age would normally wear or have at school, Officer Harvey concluded that a teacher had lost the items or that they had been stolen. Based on this conclusion, he confiscated the jewelry and told B.F. to go home. Officer Harvey contacted the Fort Bend County Sheriff's Department the next day and learned there had been a burglary at the LeFiles' home recently. Mrs. LeFiles identified the jewelry, and Officer Harvey then took B.F. into custody.

At trial, T.S. testified about his and B.F.'s role in the burglary. B.F., M.W., J.S. and T.S. all skipped school on April 20. The four boys knew each other from the neighborhood, and all except J.S. attended Garcia Middle School. After T.S. and M.W. went to J.S.'s house, all three walked to B.F.'s home where they planned the burglary. T.S. testified that he and M.W. acted as lookouts while J.S. and B.F. jumped the fence into the LeFiles' back yard. J.S. and B.F. cut the electricity to the home and entered through the dog door. They reappeared over the fence 30 to 45 minutes later with several garbage bags full of electronics and jewelry. The four boys returned to B.F.'s home where they split the proceeds of the burglary. T.S. testified that he, M.W. and J.S. then returned to J.S.'s house.

T.S., who testified pursuant to a plea agreement, testified that B.F. had been "open" about his role in the burglary when he was at school the next day and that B.F. took some jewelry from the burglary to school to sell to other students. T.S.'s trial testimony, however, conflicted with an initial statement he made to the police in which he did not implicate B.F. Testimony from three other students at Garcia Middle School also conflicted regarding whether B.F. had brought jewelry from the burglary to school or was merely present when M.W. was showing it in the cafeteria. K.E., a classmate, testified either B.F. or M.W. had dumped jewelry onto a table in the school cafeteria during breakfast the day after the robbery; he was not certain which boy had the jewelry. M.W. said "we" had burglarized a home. Although B.F., who was sitting with K.E. and M.W., did not say that he had, K.E. took B.F.'s silence to mean that B.F. had taken part in the burglary. In contrast, J.G., another classmate, testified M.W. brought the jewelry, and M.W. said he had committed a burglary, but B.F., who was sitting with them, did not indicate verbally or otherwise that he had a part in the crime. B.D., another Garcia Middle School student, testified M.W. brought the jewelry to school and, although B.F. was present, B.F. did not say he had participated in the burglary. B.D. testified M.W. said that T.S. had been involved.

The State filed a petition alleging B.F. had engaged in delinquent conduct by burglarizing a habitation. In response, B.F. filed a motion to suppress the jewelry Officer Harvey seized on April 22 and the statements B.F. made to Officer Harvey, arguing that the search and detention were unconstitutional because Officer Harvey did not have reason to believe B.F. had committed a crime. The trial court denied the motion to suppress the jewelry and granted the motion to suppress the statements.

The jury found B.F. had engaged in delinquent conduct. The court entered a judgment of delinquency and placed B.F. on formal probation for one year.

Held: Affirmed.

Opinion Text: In point of error one, B.F. argues the trial court improperly denied his motion to suppress the jewelry Officer Harvey seized from him on April 22, 1998. Specifically, B.F. argues Officer Harvey did not have a reasonable suspicion that he had committed a crime and the seizure was therefore improper under the Fourth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 9 of the Texas Constitution. The State argues Officer Harvey's conduct was reasonable because the jewelry was in his "plain view."

With respect to the trial court's findings of facts, we "view the evidence in the light most favorable to [its] ruling," and afford almost total deference to findings supported by the record. Loserth v. State, 963 S.W.2d 770, 773-74 (Tex.Crim.App.1998); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). The standard of review on a trial court's ruling on a motion to suppress is whether the trial court clearly abused its discretion. Maddox v. State, 682 S.W.2d 563, 564 (Tex.Crim.App.1985); Nichols v. State, 886 S.W.2d 324, 325 (Tex.App.--Houston [1st Dist.] 1994, pet. ref'd). However, when resolution of the suppression issue does not turn on a witness's credibility or demeanor, the trial court's determination of the applicable law, as well as its application of appropriate law to the facts it has found, is reviewed de novo. Maddox, 682 S.W.2d at 564; Nichols, 886 S.W.2d at 325. Because the parties do not dispute the facts surrounding Officer Harvey's seizure of the jewelry, we review the trial court's determination de novo.

The plain view exception to the warrant requirement applies when: (1) the officer is in a proper position to view the crime or is lawfully on the premises; and (2) the fact that the officer has discovered evidence of a crime is immediately apparent. Joseph v. State, 807 S.W.2d 303, 308 (Tex.Crim.App.1991); Nichols, 886 S.W.2d at 325. The second prong does not require the officer to "know" that certain items are evidence of a crime. Nichols, 886 S.W.2d at 325.

It is uncontroverted that Officer Harvey was lawfully on the premises of Garcia Middle School when he met B.F. in the hall. Therefore, our only inquiry is whether it was readily apparent to Officer Harvey that he had discovered evidence of a crime.

There must be probable cause to believe the property is associated with some criminal activity. Id. However, an officer may rely on his training and experience to draw inferences and make deductions that might well elude an untrained person. Texas v. Brown, 460 U.S. 730, 746, 103 S.Ct. 1535, 1545 (1983); Joseph, 807 S.W.2d at 308.

In Nichols, the officer stopped the defendant for running a stop sign. 807 S.W.2d at 325. The defendant's driver's license indicated he was 19 years old, below the legal drinking age. Id. The officer smelled alcohol and saw an empty beer can on the back seat. Id. He also saw a metal pipe sticking up between the driver's seat and the console. Id. He examined the pipe, smelled marijuana on it, and saw marijuana residue in it. Id. We held that the officer had probable cause to seize the pipe. Id. It was in plain view, and his reasonable belief that it was contraband was sufficient. Id.

Likewise, Officer Harvey formed a reasonable belief that the jewelry was stolen. He had been the Fort Bend I.S.D. officer at Garcia Middle School for two and a half years. He testified he was familiar with the students, and with B.F. specifically. When he stopped B.F., B.F. was in the building after hours, which was a violation of school rules. Officer Harvey saw the jewelry in B.F.'s hand. He knew the jewelry was not the type that middle school students normally had. He also knew it was not the type of jewelry that boys B.F.'s age normally wear. B.F. was not wearing the jewelry; he was holding it. Officer Harvey did not find B.F.'s explanation about the source of the jewelry to be credible, and he knew several burglaries had occurred in the neighborhood around the school. Officer Harvey was entitled to rely on his training and experience as the officer assigned to the school to conclude the jewelry was either lost by or stolen from an adult, and was in all likelihood contraband. Because the items were in his plain view, we hold Officer Harvey did not violate the appellant's rights under the Fourth, Fifth, and Fourteenth Amendments to the U.S. Constitution or Article One, Section 9 of the Texas Constitution.

We overrule point of error one.

Corroboration

In point of error two, B.F. asserts the jury's findings of "true" to the charges contained in the judgment must be reversed because the testimony of an accomplice witness, T.S., was not properly or sufficiently corroborated.

Texas Family Code section 54.03(e) states:

Tex. Fam.Code Ann. § 54.03(e) (Vernon 1996 & Supp.2000).

To test the sufficiency of the corroborating evidence, we ignore the accomplice witness's testimony and then examine the remaining evidence to determine if there is other inculpatory evidence to connect the defendant with the offense. Hernandez v. State, 939 S.W.2d 173, 176 (Tex.Crim.App.1997); Lopez v. State, 960 S.W.2d 948, 950 (Tex.App.--Houston [1st Dist.] 1998, pet. ref'd). The non-accomplice evidence need not be sufficient in itself to establish the accused's guilt beyond a reasonable doubt. Hernandez, 939 S.W.2d at 176. It is not necessary for the non-accomplice evidence to directly link the accused to the commission of the offense. Id. Instead, the accomplice witness rule is satisfied if there is some non-accomplice evidence which tends to connect the accused to the commission of the offense alleged in the indictment. Id. Accomplice testimony need not be corroborated on every element of the offense. Warren v. State, 514 S.W.2d 458, 463 (Tex.Crim.App.1974); Lopez, 960 S.W.2d at 950. "Apparently insignificant incriminating circumstances may sometimes afford satisfactory evidence of corroboration." Munoz v. State, 853 S.W.2d 558, 559 (Tex.Crim.App.1993); Lopez, 960 S.W.2d at 951.

Here, there is sufficient non-accomplice evidence to support the verdict. The deputies who investigated the burglary concluded that one or more juveniles who knew the family had committed the offense. B.F. had been in the LeFiles home on many occasions and was familiar with the family dog and the location of the dog door. The investigating officers concluded the perpetrator knew the LeFiles' son, and therefore did not damage his bedroom. B.F. had been friends with the son for several years. B.F. was not in school on the day of the burglary. Two days after the burglary, Officer Harvey confiscated two pieces of jewelry from the appellant that he later determined had been taken from the LeFiles home. At least two other students at B.F.'s school placed B.F. with M.W., another accomplice, and the jewelry the day after the burglary. This evidence tends to connect B.F. to the offense, and is sufficient to corroborate T.S.'s testimony.

We overrule point of error two.

Sufficiency Of The Evidence

In point of error three, B.F. argues the State did not present sufficient evidence upon which the jury's finding of "true" or upon which the jury's judgment could be based.

The rules of civil procedure govern juvenile delinquency cases. Tex. Fam.Code Ann. § 51.17(a) (Vernon 1991); In re M.R., 858 S.W.2d 365, 365 (Tex.1993); In re S.D.W., 811 S.W.2d 739, 749 (Tex.App.--Houston [1st Dist.] 1991, no pet.). Rule 324(b) provides that to preserve a factual insufficiency point of error, an appellant must have filed a motion for new trial complaining of the insufficiency. S.D.W., 811 S.W.2d at 739; Tex.R. Civ. P. 324(b) (1998). B.F. did not file a motion for new trial. For that reason, he did not preserve the factual sufficiency point of error for review. However, in the interest of justice we will consider B.F.'s point of error.

In his brief, B.F. did not specify whether he challenged the jury's finding because it was legally insufficient or factually insufficient. His request that we render a judgment of acquittal suggests the former. Nonetheless, we will evaluate the jury's verdict under both standards.

A. Legal Sufficiency

To support a conviction for burglary, the State must prove beyond a reasonable doubt that B.F., without the effective consent of the owner, entered a habitation with intent to commit a felony or theft. See Tex. Penal Code Ann. § 30.02(a) (Vernon 1994).

In juvenile cases, a reviewing court applies the criminal legal sufficiency standard of review. See In re E.P., 963 S.W.2d 191, 193 (Tex.App.--Austin 1998, no writ). A court reviewing the sufficiency of the evidence to support a guilty verdict views the evidence in the light most favorable to the verdict. Garrett v. State, 851 S.W.2d 853, 857 (Tex.Crim.App.1993); S.D.W., 811 S.W.2d at 749. The critical inquiry is whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. S.D.W., 811 S.W.2d at 749. We do not reevaluate the weight and credibility of the evidence, but only ensure that the jury reached a rational decision. See Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App.1993); Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988). This standard applies to both direct and circumstantial evidence cases. See Chambers v. State, 711 S.W.2d 240, 245 (Tex.Crim.App.1986).

Here, we cannot say that the jury was irrational when it concluded beyond a reasonable doubt that B.F. committed the offense. While the evidence regarding whether other students saw B.F. with jewelry from the burglary conflicts, there is sufficient evidence to support the jury's answer of "true" to the charge against him.

B. Factual Sufficiency

In reviewing the factual sufficiency of the evidence to support a conviction, we must look to all the evidence. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996). We do not look at the evidence in the light most favorable to the verdict. Id. Our review is not unfettered, for we must give "appropriate deference" to the fact finder. Id. at 136. We may not impinge upon the fact finder's role as the sole judge of the weight and credibility of witness testimony. Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App.1997). The jury, as fact finder, was the judge of the facts proved and of reasonable inferences to be drawn therefrom. Kirby v. Chapman, 917 S.W.2d 902, 914 (Tex.App.--Fort Worth 1996, no pet.). We may set aside a verdict for factual insufficiency only when that verdict is so against the great weight and preponderance of the evidence so as to be clearly wrong and unjust. See Clewis, 922 S.W.2d at 134-35. This standard affords the appropriate deference to the jury's verdict and prevents the reviewing court from substituting its judgment for that of the jury. Santellan, 939 S.W.2d at 164. If there is sufficient competent evidence of probative force to support the trial court's finding, a factual sufficiency challenge cannot succeed. D.R.H. v. State, 966 S.W.2d 618, 622 (Tex.App.--Houston [14th Dist.] 1998, no pet.).

Based on the evidence discussed above, the jury's determination that the allegations against B.F. were true is not against the great weight and preponderance of the evidence. We overrule point of error three.

2001 Case Summaries     2000 Case Summaries     1999 Case Summaries