### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00341- CR

Timot hy Jerom e Troupe, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 27TH JUDICI AL DISTRICT NO. 669 04, H ONO RAB LE MARTH A J. TRUDO , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury found the appellant, Timothy J erome Troupe, g uilty of burg lary of a habitation and sentenced him to ten y ear s in prison. See Tex. Penal C ode § 30.02(a ) (burg lary ). The charg e authorized the jury to convict Troupe of acti n g ei t h er alone or as a party to the offe nse. See id. §§ 7.01 (par

ties to offe nses), .02 (cr iminal responsibility for conduct of another ). Troupe contends in one issue on appea l that the evidenc e is insufficient to support the jury ’s verdic t of g uilt. We will aff irm the conviction bec ause w e conc lude that the evide nce is suff icient to support the ver dict.

BACK GR OUND J oshua and Amber Gadlin, both active- duty members of the milit ary , left their duplex

on the morning of J uly 8, 2010, at about 5:45 a.m. to attend phy sical training (PT). Amber hid the 1

We will refer

to the Gadlins by

their first name s for c larity

. 1spare key to the ir duplex in the mailbox

. When the Gadlins wer e leaving their home, they noticed

a per son talking on a

cell phone a

nd seate d on a picnic ta

ble closer to their neig hbor’s door. Amber re t u rned home from PT ear lier than J oshua beca use she had a doctor’s appointment that morning

. When she arr ived home at about 6:45 a.m., she found the front door wide open and the key that had been hidden in the mailbox in the door lock. She went inside and found
t h at t h eir television was missing and called the police beca use she rea liz ed that they had been burg larized. She then waited outside for the police and for J oshua to return home. Af t er J oshua
returne d, they

rea liz ed his ce ll phone and their la ptop were also missing. When Offic er Plank arr ived, J oshua g ave him a descr iption of the man that they had

seen sitti ng on the picnic table when they left for PT. I n addition, the Gadlins told Offic er Plank that they had rea liz ed that they could trac k the location of J oshua’s cell phone beca us e both their cell phones had a

family -loca tor applica tion that enable d eac h of t hem t o use GP S trac king to identify the location of the other’s phone. Offic er Plank looked at Amber’ s cell phone and rea liz ed that the other phone was within a mile of the Gadlins’ home. The GPS did not show the o t h er p h o ne moving. I nstead, it had to be updated, and eac h time it was updated, it showed the location to which the phone ha d moved within a radius of about 100 fee t or less. Offic er Plank a sked the Gadlins to continue updating the phone’ s location and to beg in driving toward it, a nd he followe d. Ba sed on the speed with which the phone’s location chang ed, Offic er Plank believed that the person with the missing phone was in a car . Offic er Plank stated that the are as in which they wer e driving wer e high

narc otic are as. Whil e they wer e driving , the Gadlins saw a red Honda and noticed that the driver of the vehicle was Troupe, whom they knew and had spoken to a few times beca use his g irlfriend had

2lived acr oss the s tree t from them. They knew him by the ni ckname “Tru

. ” Am b er could s ee that

someone else was in the Honda with Troupe, but that person wa s s l u mped down in the passenge r seat with his head dow n.

The Gadlins g ave A mb e r’s phone to Offic er Plank when they wer e closer to the stolen phone’s location, and Offic er P lank trac ked the missing phone to the parking lot of a near by ap ar tment complex. Offic er Pl ank parked around t he corner so that he would not be seen, and he beg an walking to the location of the GPS signa l. He saw a man who matched the descr iption of the

man that the Gadlins had seen sitti ng on the picnic table outside their home ear lier that morning

. The Gadlins had followed Of

fice r Plank. Amber ide ntified the man and pointed out tha t he had on the

same ve ry distinctive shoes that she had notice d when he was sitting on the pic nic table. Offic er Plank approa ched the man and deter mined that the man was Edwar d J eff ries. J eff ries had the Gadlins’ missing cell phone in his pocket, so Offic er Plank arr ested him for burg lary of a habitation. Whil e Offic er Plank was arr esting J eff ries, J oshua saw Troupe peeking out of some

n e a r b y b u s h e s a

t th e m. Wh e n Jo s h

u a p o in te d a t h im a n d s a id to A mb e r , “ T h e r e ’ s T r u , ” T r o u p e s ta r te d running , even though no one was chasing him at that point. Amber beg an chasing him beca use she thought he must have had something to do with it, o r h e woul d not have started running awa y . J oshua aler

ted Offic er Plank to Troupe’ s prese nce, say ing, “The re g oes his partne r rig ht there ,” and Offic er Plank saw Troupe, who was wea ring a red shirt, runnin g aw ay . J oshua beg an following Troupe a nd Amber, a

nd as soon as Of

fice r Plank ha d J eff

ries handcuf

fed, he aler

ted other office rs that he nee ded assistanc e pursuing Troupe.

Troupe was running behind houses and jumping fenc es. At one point, Amber caug ht up to him, and Troupe said to her, “Ma’ am, I didn’t take any thing. Ma’a m, I didn’t take any thing.”

3But no one had told him that any thing had been stolen at this point, s o Am b er as k ed him how he knew any thing had been t ak en . He just kept repe ating that he didn’t take any thing. Amber had g rabbe d him in a choke hold, but he wig g led out of it, and when he did, his shirt came off and he ran

awa y ag ain. After that, J oshua interce pted him, and then another police office r, Detec tive J oe Smit h,

ar ri ved and handcuf

fed Troupe. Offic er Pl ank had been following the chase in his patrol car. He could not run af

ter Tr oupe because he was transporting J eff ries. At two differ ent t imes, he y elled to T roupe, “Stop, police

. You’re under arr est,” but ne ver state d what cr ime he was g oing to a rre st Troupe for. After Detec tive Smit h appre hended Troupe, Offic er Plank advised Troupe that he was placing him under arr est. Be fore Offic er Plank told him the crime for which he was being arr ested, Troupe stated, “I didn’t brea k into no house.” Offic er Plank te stified that he had not told the other responding office rs what T ro upe’s offense was, so none of them could have told him why he was being arr ested. The re d Honda that the Gadlins had seen Troupe driving earlier was in the pa rking lot of the apar

tment c omplex wher e J eff ries was arr ested and wher e Troupe had been hiding in the bushes bef

ore he ran. The Gadlins identified the c ar to the police office rs as the one that they had

seen Troupe driving ear lier. Also, J eff ries had previously told Offic er Plank that he would find a red Honda at t h e apar

tment complex that would have some stolen proper ty in it from the burg lary

. He had also talked to Offic er Pl ank abo u t T ro u p e’ s involvement in the burglar y with him. When Offic er Plank first advised J eff ri es that he was under arr est for burg lary of a habitation, J eff ries stated that he was addicted to cra ck and neede d help, but that he did not brea k into “th at h o u s e.” A f te r T r o u p e w a s s p o tt e d a

n d h a d b e g

u n r u nn in g a w a y , Je f f r ie s to ld O f

f ic e r Pl a n k w h il e O f

f ic e r Pl a n k was putting him in the back of the patrol ca r that Troupe was the one who broke into the house.

4W h en the police sear ched the red Honda, they found proper ty belong ing to the Ga d l i ns in it, including a radio, a car stereo, the laptop, and some piece s of jewelr y . The poli ce deter mined that the Honda w as re g istered to J ennife r Alexander. A lexander testified that Tr oupe, whom she knew throug h her brother, had been at her house on J uly 7 for a party for her brother. She left her house the evening of J uly 7 and did not return until ear ly in the morning of J uly 8. She had loaned her car to T roupe that morning beca use he told her he neede d to borrow it to g et to work by 7:20 a.m. W h en t h e p o l i ce came to her house, they told her that her car had been involved in a burg lary of a habitation and that they had a repor t of some stolen proper

ty at her house. The Gadlins’ television was found at her house, but Alexander denied knowing how it arr ived at her house. She

s ai d s h e had not noticed it when she came in ear ly on the morning of J uly 8 beca use some ot h er people wer e in the proce ss of moving into her home the night befor e, so she was not surprised to see items she did not rec og nize. She had seen J eff ries around the neig hborhood, but did not know him. He had approa ched her in the past to panhandle and to tell her that he had merc handise for sale, but she neve r boug ht any

thing f rom him. She testified that she did not buy the television from him. I n Troupe’ s written statement to Detec tive Smit h, Troupe indicated th at h e was walking to work and an individual in a milit ary uniform approa ched him and started beating him up for no rea son. He did not state that he knew the person or that his g irlfriend lived acr oss the street from the person. J eff

ries later g ave Detec tive Smit h an oral statement in which J eff ries stated that he broke into the Gadlins’ house first, but then left to g et Troupe to help him with transporta tion and
to g et the proper

ty out of the house. J eff

ries t o l d De t ec t i v e Smit h that he and Troupe loaded the proper ty into the car

and discussed ta

king the proper

ty to sell it.

5At trial, J eff ries testified to a differ ent version of events. He testified that he had
enter ed the Gadlins’ home, remove d the proper ty and stored it behind the back of the vaca nt duplex next door. He then wa lked to an apa rtment wher e he knew some pe ople and a sked if they wanted
to buy a television. A woman there boug ht it, and she asked Troupe to take J eff ries in her car to pick it up. J eff

ries testi fied that he tol d Troupe that he had stolen the television. When they arr ived at the Gadlins’ house, J eff

ries car ried the television from behind the neig hboring duplex to the car , and Troupe helped J eff

ries put it in the car . After they took the television back to the woman, she boug ht it. Then Troupe took J eff ries to g et something to eat and was taking him to a friend’ s apar tment in the complex where the police f ound them. 2 T roupe was indicted for the offe nse of burg lary of a habitation. The char ge authorized the jury to convict Troupe acting either alone or as a party to the offe nse. See id. §§ 7.01 (par ties to offe nses), .02 (cr iminal responsibility for conduct of another ). The jury found Troupe g uilty of the off ense of burg lary of a ha bitation, “as cha

rg ed in the indictment.”

DISCUSSIO N Due proce ss require s the State to prove bey ond a re asonable doubt ever y element of the crime char g ed. Jack son v. Virginia , 443 U.S. 307, 316 (1979); see also Brooks v. State , 323 S.W .3d 893, 912 (Tex. Cri m . Ap p . 2 0 1 0 ) (dete rmining that Jack son standard “is the only standard that a revie wing court should apply ” when exam i n i n g sufficie ncy of evidenc e). When considering the sufficie ncy of the evidenc e, we view all the evidenc e in the light most favor able to

B y th e ti me o f T r o u

p e ’ s tr ia l, Je f

f r ie s h a d ju d ic ia ll y a d

mi tt e d to c o mm is s io n o f th e b u r g la r y . 2 6the verdic t to deter mine whether “any rational trier of fac t could have found the essential elements of the crime bey ond a re as onable doubt.” Jack son , 443 U.S. at 319; Brooks , 323 S.W .3d at 899. Under this standard, it is the fac tfind er’s duty “to resolve conflicts in the testimony , to weig h the evidenc e, and to draw rea sonable infere nces from basic fac ts to ultimate fac ts.” Jack son , 443 U.S.
at 319. When analy

zing suffic i en cy , we then “dete rmine whether the nece ssary infere nces are

rea sonable ba sed upon the c ombined and cumulative f orce of all the e vidence when view ed in t he light most favor able to the verdic t.” Hooper v. State , 214 S.W .3d 9, 16-17 (Tex. Crim. App. 2007).

We presume that the fac tfinder resolved any conflicting infere nces supported by the

rec ord in fa v o r of the prosec ution and there fore defe r to that deter mination. Clayton v. State , 235 S.W .3d 772, 778 (Tex. Crim. App. 2007). We must defe r to the ju ry ’s deter mination of the witnesses’ cre dibilit y and the weig ht to be g iven their testimony

. Brooks , 323 S.W .3d at 899. We

assume that the trier of fa ct re s o l ved conflicts in the testimony , weig hed the evidenc e, and drew rea sonable infere nces from basic fac ts to ultimate fac ts in a manner that supports the verdic t. Jack son , 443 U.S. at 319; Laster v. S t a t e , 275 S.W .3d 512, 522 (Tex. Crim. App. 2009). “Our role on appea l is restric ted to g uarding ag ainst the rar e occur renc e when a fac tfinder does not act rationally [; ]

. . . . we will uphold the ver dict unless a rational fac tfinder must have had reasonable doubt as to any

essential ele ment.” Laster , 275 S.W .3d at 517-18. We apply the same standard o f revie w to both direc t and circ umstantial evidenc e

case s. Id. We must consider all the evidenc e in the rec ord, whether direc t or circ umstantial, proper ly or improper ly

admitted, or subm itted by the prosecution or defense. Clayton , 235 S.W .3d at 778. Circumstantial evidenc e is as p ro bative as direc t evidenc e when establishing an actor ’s g uilt, and circ umstantial evidence alone c an be suf ficient to establish g uilt. Hooper , 214 S.W .3d at 13.

7I n a sufficie ncy revie w, the essential elements of the offen s e ar e t h ose of a

hy pothetically corr ect jury char g e for the case —one that acc urate ly sets out the law and adequately d es cr i b es the offe nse for which the defe ndant was tried without incre asing the State’s burden o f proof or restric ting the State’s theorie s of liability

. Id. at 14. To support a conviction for burg lary of a habitation, the State must prove that a person enter ed a habitation without the eff ective consent of the owne r i n order to commit or attempt to commit a fe lony , theft, or a ssault. Tex. P enal Code § 30.02(a) (3). I n this case , the char g e authorized the jury t o convict Troupe either as a principal

or a party

. When the trial court’s char g e authorizes the jury to convict on more than one theory , the ver dict of g uilt will be upheld if the evidenc e is sufficie nt on any of the theor ies. See H

ooper , 214 S.W .3d at 14.

Viewing the evidenc e in the light most favor able to the verdic t, we find that the evidenc e is sufficie nt to support Troupe’ s conviction for burg lary of a habitatio n. The jury hear d evidenc e of a number of circ umstances from which it could infer Troupe’ s g uilt. First, flig ht is a circ umstance indicating g uilt. Hardesty v. Stat e , 6 5 6 S.W .2d 73, 77-78 (Tex. Crim. App. 1983). Troupe was hi ding in the bus hes and fled the scene when he was spott ed. He led the Gadlins and police on a leng thy foot chase behind houses and jumped fenc es while tr y i n g to avoid police appre hension. After Amber had him in a choke hold, he esca ped and ran awa

y ag ain. Second, the unexplained possession of rec ently stolen proper ty permits an infere nce that Troupe is the person who committed the burg lary

. See Rollerson v. State , 227 S.W .3d 718, 725 (Tex. Crim. App. 2007). The Gadlins testified that the burg lary occur red betwee n 5:45 a.m. and 6:20 a.m. on J uly 8. Shortly afte r 8:00 a.m., Troupe was arr ested. Troupe never offe red any explanation for the stolen proper ty

8found in the back of the car that he had been seen driving just befor e his arr est. Third, inconsistent

statements and implausible explanations to the police are probative of wrong ful conduct and are also circ umstances of g uilt. Guev ara v. State , 152 S.W .3d 45, 50 (Tex. Crim. App. 2004). Troupe repe atedly denied involvement in a bu rgl ar y , fi rst when he was appre hended by Amber and then by Offic er Plank, be fore any one acc used him of the crime. At the time of his a rre st, Tr oupe stated that he had been walking to work when a person in milit ary uniform had attacked h i m wi t h o u t provoca ti o n , d es p ite the fac t that he and the Gadlins knew eac h other (which he omitted from his statement). I n sum, the State prese nted evidenc e that Troupe (1) was driving the car containing the stolen proper

ty shortly afte r t he burg lary , (2) fled from police when spotted, (3) denied involvement in a burg lary befor e any acc usation was made, and (4) asser ted t h at he had been attacke d without provoca tion by an unknown p er s on in milit ary uniform even though the Gadlins had met him befor e and knew him by name. We conclude that a rational jury could have found all
t h e el ements of burg lary proved bey ond a rea sonable doubt based on the totality of the evidenc e. See Guev ara , 152 S.W .3d at 52 (holding that ration al jury could have found elements of offe nse proved be y ond a re asonable doubt based on totality of circ umstantial evidence ). I n addition, two of J eff

ries’s statements further support the jury ’s verdic t. The State 3 put on evidenc e that J eff

ries had g iven two differ ent versions of events to the police befor e testify ing
to a third version at trial. Offic er Plank testified that J eff ries first told him that Troupe was the one

The char g e informed the jury that J eff ries was an acc omplice and instructed the jury on the 3 acc omplice-testimony require ments. Troupe has not raised an issue on appea l rela ted to the State’s use of a ccomplice testimony

. 9who broke into the house. Detec tive Smit h testified th at s h ortly afte r his arr est J eff ries told him that he h ad l ef

t t h e Gadlins’ house afte r enter ing it the first time to g et Troupe to help him with transporta tion and g etting the proper ty from the house. He and Troupe then drove back to the house, loaded the proper

ty in the car , and discussed taking the proper ty to sell it. At trial, J eff

ries testified that Troupe helped him transport the proper ty (that J eff

ries told Troupe was stolen) afte r Troupe had been a sked to dr ive J eff

ries to g et the television by the woman who boug ht it. Alex ander testified that she did not know J eff ries, did not buy the television from him, and loaned her car to Troupe so that he could g o to work. We must presume that the jury resolved the conflicting testimony in favor of its verdic t and believed J eff ries’s first or second version of events—that Troupe either broke into the house or helped J eff

ries g et the proper

ty out of the house. See Jack son , 443 U.S. at 319; Laster , 275 S.W .3d at 517. Even if we disreg ard J eff ries’s statements, howeve r, the totality of t h e o t h er evidenc e is sufficie nt to support Troupe’s c onviction. 4

The State offe red sufficie nt circ umst an t ial evidenc e for the jury to infer bey ond a

rea sonable do u

b t th a t Troupe committed the burg lary

. Reviewing the evidenc e under the appropr iate standard, we conclude the evidenc e is leg ally sufficie nt to support Troupe’ s conviction. We overr ule Troupe’ s sole issue.

Troupe relies on J eff

ries’s prese nce to arg ue that the evidenc e was insufficient to convict 4 him as a party

—he asser

ts that J eff

ries’s testimony at trial shows that they did not share a common purpose or desig n befor e or contempora neously with th e b urg lary

. The mere prese nce of another party , howeve r, do es n o t p reclude our evalua tion of the circ umstantial evidenc e that provides a sufficie nt basis s t an d i n g al o n e to convict Troupe as a principal actor

. We do not rea ch Troupe’ s arg ument that the evidenc e is insufficient to convict him as a party beca use we have conclude d that th e e v id e n c e is s u f

f ic ie n t to c o n v ic t T r o u

p e a s a p r in c ip a l a c to r . S

e e H o o p e r v . S ta te , 2 1 4 S. W. 3 d

9 , 14 (Tex. Crim. Ap p . 2 0 0 7 ) (c onviction will be upheld if sufficie nt evidenc e supports any one of alterna tive theories in jury char g e); see also Tex. R. App. P. 47.1 (cour t of appea ls must hand down written opinion that is a s brief as prac ticable but tha t a ddresse s ever y issue raised and nece ssary to final disposition of appeal)

. 10CONCLUSION Having deter

mined that the evidenc e is sufficie nt to support Troupe’ s conviction, we aff irm the trial cour

t’s judgme nt.

__________________________________________ David Pury ear , J ustice Be fore J ustices Pury ear , Goodwin and F ield Affir med Filed: Jul y

18, 2013 Do Not Publish

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