1 John T. Boyd, Chief Ju stice (Re t.), Seven th Court of Appeal s, sittin g by assi gnment.

Tex. Gov ’t Code A nn. §75.0 02(a)(1) (Vernon S upp. 200 4). NO. 07-03-0332-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL E AUGUST 16, 2005

______________________________ MELINDA ANN MULLINS, APPELLANT

v. THE STATE OF TEXAS, APPELLE E

_________________________________ FROM THE 64 TH DISTRICT COURT OF HALE COUNTY; NO. B14944-0305; HON. ROBERT W. KINKAID, JR., PRESIDING

_______________________________ Before QUINN, C.J., REAVIS, J., and BOYD, S.J. 1 In this appeal, appellant Melinda Ann Mullins challenges her conviction of theft from the person, as well as the resulting jury-assessed punishment of 18 months imprisonment in a state jail facility. In doing so, she presents two points for our decision. She asks us to determine whether 1) the evidence was sufficient to find ap pellant guilty of the crime of theft f r om the person where the purse in question was taken from a laundry folding table notwithin the immed iate reach of the victim and where there wasno marked risk of fright2

or injury to the victim; and 2) the evidence was sufficient to showthat appellant was a pa rty to the crime when she was outside of the laundromat, though she knew the thief’s intention butdid not

encourage or discourage the theft, and left with the thief from the laundromat and permitted him to go into her home. Answering both question s in the aff irmative, we affirm thejudgment of the tri al court. The na ture of ap pellant’ s argumen ts requir e us to re cite the pertinen t parts of th e evidence in some det ail. On the e vening of April 30, 2003, Elena Molina , her sister, and children were at the laundromat at 12 th Street and Columbia in Plainview doi ng laundr y. Molina was putting her clothes in the dryer when a ppellant and James Tu rk entered th e laundrom at, boughta Dr. Pepper from a vending machine, and went back outside to smoke
a cigarette. Molina had not known either of them before t hat e vening. The pai r were outside the laundromat for about 20 minutes. Molina had brought with her a purse that contained about $1,200 in cash. She had placed the purse on a folding table within an arm’s le ngth of her. Turk re-entered the laundry mat, snatched Molina’s purse, and ran. Molina attempted to c at ch Turk and retrieve her pu rse but was unable to catch him. Thereafter, with the assistance of the police, Molina recovered her purse with everything except about $50 to $150. Gilbert Gonzales testified that on the evening i n questi on he wa s in the front yard of his mother’s house which was located ab outa half block from the laundromat. He saw appellant

and Turk walk toward the laundromat. Later, as he was drivin g away from hi s mother’s house, he saw appellant and Turk run quickly from thelaundromat. He thought he saw th e man carr

ying some thing li ke a bag and appe llant wa s runnin g alongs ide him. After Gonzales saw appellant and Turk

running from the scene, he saw Molina outside the3

laundromatusing her cell phone. She told Gonzales that the fleeing pair had stolen her purse. Sophia Jaramillo, a Plainview police officer, testified that on the evening in question, she responded to a call about a theft from the laundromat. She was told that the susp ects
w ere running down thestreet an d she wa s given adescript ion of th e pair. S he took off along the stree t to see i f she cou ld find t he suspe cts. After receivi ng inform a tion from a c o uple of other witnesse s, Jaramil lo, toget her with police s ergeant B alderas, went to appellant’s residence. As they appr o ached her residence, appellant, appearing out of breath, appeared from behind a fence. She was dressed i n the black shorts that had been describe d as her at

ti re by the victim. J aramillo said she

could n ot tell i f appell ant came from insi de or outside of t he house

. When told by Jaramillo about the purse theft, the officer said thatappellant acted as if she knew nothing about it. Appellant told the officers that Turk was in her house and the officersasked her to call him out. Appellant stuck her head in thefront doo r and tol d Turk to come out. Initial ly, howe ver, Turk did not do so, and Jaramill o went to the back

door to preventTurk from escaping that way. As she did so, the officer observed Turk looking out the back bedroom window. Jaramillo surmised that Turk was either trying to get out of the house or trying to hide something. When Turk ultimately came out of the house, he was
wea ring clothes that answered the description of the ones the victim said the man wh o snatched her purse

was wea ring. Turk, appearing to be nervous and sweaty, was queried about the pursetheft and told the officers he knew nothing

. Appellant then gave the officers permission to search her4

house and went in with Balderas whil e Turk and Jaramillo remained outside. As they did so, Jaramillo observed that Turk continued to be nervous a nd fidgety. Balderas found ap pellant’ s purse u nder a ma ttre ss in the back bedroom of appellant’s residen ce . Jaramillo opined that appellant did n ot seem to be surprised the purse was found in her home. AsBalderas came out of the house carrying the purse, Turk began to run, but was successf ully pur sued by J aramillo

. After being subdued, Turk was read his Miranda rights. When interrogated by the officers, Turk denied taking the purse and blamed appella nt. He averred that appellant had hidden money from the purse on the porch and, Jaramillo said, Balderas found $100 o n the porch

. Although no money was found on ap pell ant, the officers found $300 in Turk’s wallet and $100 on top of the refrigera tor. Turk was taken to the Hale County jail. After he was removed from the p atrol car , an additional sum of money was found in the car. Appellant was also detaine d and taken to the police department where she gave awritten s tatement. In the statement, appellant said that she went to the laundromat with Turk to get a Dr. Pepper. After they went outside, she said, Turk told her he was going back to steal a purse, that he did so, and they went to her hous e. She denied tha t she had anything to do with the taking of the purse. She said she was returning home when Turk came running up beside her and “told [her] to run” and he “hid behind [ a] garagehouse.” Appellant also averred that Turk hid the purse in her house. As we have noted ab ove, in each of her points, appellant argues the evidence is both legally and fact ua lly insufficient to sustain her conviction. The stand ards by which such contenti ons are d etermined are by no w axiom atic. In considering a legal sufficiency5

challenge, an appellate court must examine the evi dence in a light most favorable to the verdictto determine whether any rational trier of fact cou ld have found the essential elementsof the offense beyond a reasona ble doub t. See Jack son v. Vi rginia, 443 U.S. 307, 318-19, 99 S.Ct. 2 781, 61 L .Ed.2d 56 0 (1979); Whitaker v. Sta te , 977 S.W.2d 595, 598 (Tex. Cr im. App. 199 8). In reviewing a factual sufficiency question, we view the evidence withoutthe prism of in the light most favorable to theverdict and only set aside that verdict i f the evi dence is so contra ryto the overwhelming weight of the evidence as to be clearly wron g and un just Id.; Clew

is v. Sta te , 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Theft

from the person as proscribed by section 31.03(e)(4)(B) of the Texas P enal Code seeks to punish conduct that involves the risk of injury inherent in taking pr operty from a per son. See Earl s v. State , 707 S.W.2d 82, 86 (Tex. Crim. App. 1986). Actual touching during the act is not required in order to satisf y the stat utory requ irements. Id. at 85. For example, in Mack v. St ate , 465 S.W. 2 d 941 (T ex. Crim. App. 1971), a purse snatche d from a sh opping cart while the victim was distracted and turned away from the purse, but who had her hand on the cart, was h eld s uffici ent to justify a conviction under the statute. Id. at 941-42

. In Mack, the court was considering the precursor of the present statute, but its application is applicable to the current statute which is essentially the same. In considering whether appellant’s conduct was within the purview of the statute, we examine the court’s decision in Farrell v. State, 837 S.W.2 d 395 (Tex. App.-- Dallas 1 992), aff’d, 864 S.W.2d 501 (Tex. Crim. App. 1993). In that case, the victim’s wal let had also been placed on a shopping cart, but she was two or three feet from the cart, admitted that she was not within arm’s reach of the cart, her b ack was to the cart when the wallet was6

taken, and she did not discover the theft until several minutes later. Under those circums tances, the Farrell court concluded the wallet was not taken “from her per son ” within the purvi ew of thestatute. Id. at 398. E n route to its deci sion, thecourt

noted the intentof the sta tute in ma king the ftfrom the person a felony regardless of the valueof the property taken and that the wallet was not taken “from her person, h er grasp, or from her immediate

possessi on.” Id. Und er those circumstances, the court concluded that the circ umstances of the taking did not involve “the risk of i njury inherent in taking p roperty from a per

son” nece ssary to ju stify a co nviction under th e statute. Id. In the instant case, the evidence showed that Molina was w ithin an arm’s grasp of the purse when taken, she had watched Turk wal k through the buil ding and circle b ack to where she was folding clothes, she witnessed him take the purse from the table, and she made an attempt to catch him and retrieve her purse. Under these circumstances, the risk of injury incident

to the ta king was

sufficie nt to sati sfythe statu tory requi rements an d justify the jury finding of theft from the person. Appellant’s first point is overruled. Reiterated, in her second point, appellant asserts the evid ence is legally and factuallyinsuffic ien t to support a finding that appellant was a p arty to the theft. Section 7.02 of the Texas Penal Code describes the circumstances by which an individual may be held responsi ble for th e crimina l conduc t of a nother. See Tex. Pen. Code Ann. § 7.02 (Vernon 2003). As relevant here, the statute provides that a person i s criminally responsible for anoth er’s cond uct if “ac ting wit h intent to

promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the othe r person to commit theoffense.” Id. § 7.02(a )(2).7

Standing alone, proof that an a ccu sed was personally present at the scene of the crime or assisted the primary a ctor in ma king his getaway is insu fficient. Scott v. S tate , 946 S.W.2d 166, 168 (Tex. App.–Austin 1997, pet. ref’d). Theevidence must show that at the time of the inciden t, the p arties we re acting together , with ea ch contri buting s ome part towards the exe cution o f the commo n purpose
. Brooks v. State , 580 S.W.2d 825, 831 (Tex. Crim. App. 1979). Evidence is legally sufficient to convict under the la w of partie s when the defendant is physically present at the commission of the offense and encourages its commission byacts, wor ds, or oth er agreem ent. Barnes v. State, 56 S.W.3d 221, 238 (Tex. App.–Fort Worth 2001, pet. ref’d). Whether an accused participated as a party to an offense may be determined by examining the events o ccurring before, during, and after the commission of

the offense and by the actions of the accused that sh ow an understanding and co mmon design to commit t he offens e. Beier v. State , 687 S.W. 2d 2, 4 (T ex. Crim

. App. 1985). Flight from the scene is a circumstance from which an inference of guilt may be drawn. Cantrell

v. State , 731 S.W.2d 84, 92 (Tex. Crim. App. 1987). In determining the sufficiencyof the evidence to show an accused’s intent and when faced with a record that supportsconflicting inferences, the revie wing court must presume, even if it does not
a ff irmativelyappear in the record, that the trier of fact resolved any such co nflict in favor of the prosecution and must defer to that re solution

. Matson v. State , 819 S.W.2d 839, 846 (Tex. Cri m. App. 19 91). Reviewed, the evid ence shows that a ppellan t accompa nied Tur k when h e went to the lau ndromat, we nt into th e buildi ng but di d not atte mpt to was h clothe s, bought a Dr. Pepper from the v ending m achine a nd then went outsi de to smoke. Atthe time they were in th e buildi ng, Molin a had he r purse on the tabl e within arm’s rea ch. In he r sta tement ,8

albeitwith a denial that she had anything to do with the crime, appellant admitted that Turk told her he was going back inside to steal the purse

. Appell ant remai ned outsi de whil e Turk re-entered the building, snatched Molina’s purse, and ran. Although sh e said in her statement that she had begun to walk home before Turk stole the purse, Gonzalestestified that he saw both appellant and Turk running from the scene. Moreover, the record shows that Turk had taken refuge i n appell ant’s ho use subs equent to running from the scene of the crime. Considering all of these factors, the jury could reasonably have concluded that appellant

knew of Turk’s i ntent tosteal the purse, that she deliberately stayed outside the building as a lookout, and that she ran with him a nd gave him refuge in her house after the theft. While other conclusions could bedrawn from the evidence, we cannot say that the jury’s resolution of the fact questions presented in this record was outsid e of their classic discretion to determine and resolve factual questions, and that the fin ding of guiltwas not sufficiently supported by the record. Accordingly, appellant’s second point is overruled. In sum, all of appellant’s points are overruled and the judgment of the trial court is affirmed. John T. Boyd Senior Justice Do not publish.