Affirmed and Memorandum Opinion filed August 1, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00618-CR

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FREDERICK CRUMBLEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Cause No. 1,001,437

M E M O R A N D U M   O P I N I O N

            Appellant Frederick Crumbley was found guilty by a jury of burglary of a building with intent to commit theft.  The trial court assessed appellant’s punishment, enhanced by two prior convictions, at ten years’ confinement in the Texas Department of Criminal Justice, Institutional Division.  We affirm.

On appeal, appellant raises the following issues:  (1) the evidence is legally and factually insufficient to show that appellant, as a principal, entered the building; (2) the evidence is legally and factually insufficient to show that appellant, under the law of parties, committed any act with the intent to promote the alleged offense; and (3) appellant’s sentence of ten years’ confinement violates the federal and state constitutional protections against cruel and unusual punishment. 

Factual and Procedural Background

            Shortly after midnight on September 20, 2004, Officer R. Gannon of the Houston Police Department was dispatched to Junior’s Wheel FX, a retail wheel and tire business located on Uvalde Street in Harris County, Texas.  When Officer Gannon arrived, he saw that the gate to the business had been smashed in, the building’s garage door had been rammed and torn off, and a black Ford Explorer was backed up to the building where the garage door had been.  Several wheel rims were loaded into the back of the Explorer.  As he approached, Officer Gannon saw two men, one of whom was appellant.  One man ran into the wheel shop, while appellant ran around to the side of the building in between the building and a fence.  Officer Gannon ran around the other side of the fence in an effort to intercept appellant.  Appellant did not obey Officer Gannon’s commands to stop; he instead ran into a stack of tires.  Officer Gannon climbed over the fence and caught appellant in the stack of tires and brought him back out.  When the officer apprehended appellant, they were inside the fenced-in area.  Appellant told Officer Gannon that a third person was involved, but no other suspects were located during a search of the area.

            Officer J. B. Colburn, another officer who arrived just after Officer Gannon, saw the events unfold from a different vantage point.  As he arrived, he saw the two men standing at the back of Explorer underneath the overhang of the wheel shop.  According to Officer Colburn, he could see that the men, one of whom he identified as appellant, were “actually inside the building, directly behind the Ford Explorer.”  Officer Colburn pursued and caught the man who ran into the building.  A third officer, Officer C. Bailey, also responded to the call at the wheel shop.  He too saw the Explorer backed up to the business and saw Officer Gannon chase after and eventually apprehend appellant.  Officer Bailey then assisted Officer Colburn in arresting the other man inside the building, who was later identified as Jakhar Amos. 

            At trial, Officers Gannon, Colburn, and Bailey testified for the State.  Edgar Ramirez, the owner of the business, also testified.  He described the damage to his building and testified that several rims had been taken.  He also testified that he did not know appellant and had never given him, or anyone else, permission to enter the building or take any rims.

            Appellant testified in his defense.  He testified that he was walking toward the wheel shop on the way to his home and saw the officers there.  When Officer Gannon approached him, he was not on the premises of the wheel shop.  Appellant stated that when he started to walk away from the officer, a struggle involving the three testifying officers and another officer ensued.  According to appellant, the officers struck him several times and, at one point, kicked him in the eye before they were able to handcuff him.  Appellant denied ever being in the back of the Ford Explorer or inside the garage door area of the business, and denied committing the charged offense. 

            On cross-examination, appellant could not recall speaking to another officer, Officer Robinson, or telling him that he had been acting as a lookout.  In rebuttal, the State called Officer Robinson, who testified that he questioned appellant about the burglary.  According Officer Robinson, appellant refused to give a written statement, but did say that he was at the wheel shop acting as a lookout.

            The jury charge authorized the jury to find appellant guilty as a principal or as a party to the offense committed by Jakhar Amos.  After being so charged, the jury returned a general verdict finding appellant guilty of burglary.

Analysis of Appellant’s Issues

I.        The Legal and Factual Sufficiency of the Evidence that Appellant, as a Principal, Entered the Building

            A.      Standards of Review

            In a legal sufficiency challenge, we employ the familiar standard of viewing the evidence in the light most favorable to the verdict.  King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).  If any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt, we will affirm.  Id. 

            We also employ familiar standards of review to analyze a factual sufficiency challenge:  reviewing all of the evidence to determine whether the jury was “rationally justified in finding guilt beyond a reasonable doubt.”  Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).  We view the evidence in a neutral light, without the prism of the light most favorable to the verdict.  Id. at 481.  The evidence may be factually insufficient in one of two ways:  (1) though legally sufficient, it may be too weak to support a finding of guilt beyond a reasonable doubt; and (2) when balanced against the evidence supporting the verdict, the contrary evidence may be so strong that the beyond-a-reasonable-doubt standard could not have been met.  Id. at 484–85.  As an appellate court, we defer to the jury’s role as fact finder, particularly in areas of witness credibility, demeanor, and the weight to be given conflicting testimony.  Id. at 481 (“Deference is given to the jury verdict, as well as to determinations involving the credibility and demeanor of witnesses.”); Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000) (“Unless the available record clearly reveals a different result is appropriate, an appellate court must defer to the jury’s determination concerning what weight to give contradictory testimonial evidence because resolution often turns on an evaluation of credibility and demeanor, and those jurors were in attendance when the testimony was delivered.”). 

          B.      Analysis of Appellant’s Arguments

            When, as here, the trial court’s charge authorizes the jury to convict the defendant as a primary actor or as a party, the jury returns a general verdict, and the evidence is sufficient to support a guilty finding under any of the allegations submitted, the verdict will be upheld.  See Rabbani v. State, 847 S.W.2d 555, 558 (Tex. Crim. App. 1992); Barnes v. State, 62 S.W.3d 288, 299 (Tex. App.—Austin 2001, pet. ref’d).        

A person commits the offense of burglary of a building if, without the effective consent of the owner, the person enters a building, or any portion of a building, not then open to the public, with intent to commit a felony, theft, or an assault.  See Tex. Pen. Code § 30.02(a)(1).  In his first and second issues, appellant contends the evidence is legally and factually insufficient to show that he, as a principal, entered the building.  Specifically, appellant argues the record contains no evidence that he ever entered the building.  According to appellant, Officer Gannon observed him outside of the building and merely speculated that he might have been inside, and Officers Colburn and Bailey only saw him outside the building.  Appellant also argues that no testimony or other evidence links him to the rims found inside the Ford Explorer.  We disagree with appellant’s characterization of the record.

            While Officers Gannon and Bailey only saw appellant outside the building, Officer Colburn testified that he saw appellant from a different vantage point.  He testified that appellant and the other suspect “were actually inside the building, directly behind the Ford Explorer.”  Officer Colburn further testified that the Explorer was “up against the building” and would have been touching the garage door had it not been pushed in, and, therefore, in order get behind the Explorer, it was necessary to enter the building.  Viewing the evidence in the light most favorable to the verdict, we conclude it is legally sufficient to support appellant’s conviction as a principal.  See King, 29 S.W.3d at 562.  The only contrary evidence presented was appellant’s testimony.  The jury, as fact finder, could have chosen to believe the testimony of Officer Colburn over appellant’s testimony.  We defer to the jury in areas of witness credibility, demeanor, and the weight to be given conflicting testimony.  See Zuniga, 144 S.W.3d at 481; Johnson, 23 S.W.3d at 8.  Considering all of the evidence in a neutral light, including the testimony and the physical evidence at the scene, we also conclude the evidence is factually sufficient to support appellant’s conviction.  See Zuniga, 144 S.W.3d at 484–85.

            We therefore overrule appellant’s first and second issues.

II.       The Legal and Factual Sufficiency of the Evidence that Appellant, Under the Law of Parties, Committed Any Act with the Intent to Promote the Alleged Offense

            In his third and fourth issues, appellant contends the evidence is legally and factually insufficient, under the law of parties, to prove that he committed any act with the intent to promote the alleged offense.  We apply the same standard of review discussed above to appellant’s contentions.

            A person is criminally responsible as a party to an offense if the offense is committed by the conduct of another for which he is criminally responsible.  Tex. Pen. Code § 7.01(a).  A person 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. Pen. Code § 7.02(a)(2).  Appellant contends there is no convincing evidence that he acted with the intent to aid, assist, or encourage another to commit the alleged offense of burglary.  Specifically, he argues that Officer Gannon’s testimony that he first observed appellant behind the Ford Explorer is not credible if appellant was allegedly acting as a lookout, and appellant’s testimony that he was walking down the street when the police first approached him and was never near the building was more credible than the other testimony presented at trial.  Additionally, appellant again argues that the record fails to establish that he ever actually entered the building.  At best, appellant contends, the evidence only shows that appellant knew that an offense was being committed on the property.  We disagree.

            Appellant does not dispute that the building was broken into and that Amos was arrested inside the building.  One officer saw appellant inside the building, and the other two officers who did not see him inside saw him directly outside the building.  Appellant ran when he saw the police.  When appellant was apprehended, he informed the police that a third individual was involved.  Appellant later told Officer Robinson that he was acting as a lookout.  This evidence is legally sufficient to demonstrate appellant’s intent to aid, assist, or encourage another to commit the burglary.  Although appellant contends his contrary testimony was more credible than that of the officers, we reiterate that the credibility of the witnesses and the weight to be given conflicting testimony is the jury’s responsibility, and we defer to the jury’s resolution of conflicts in the evidence.  On this record, we find that the evidence is both legally and factually sufficient to support a finding that appellant was guilty of burglary as a party. 

            We overrule appellant’s third and fourth issues.

III.      Whether Appellant’s Sentence Violates Federal and State Constitutional Protections Against Cruel and Unusual Sentences

            In his fifth and sixth issues, appellant contends the trial court erred in assessing appellant’s punishment, enhanced with two prior felonies, at ten years’ confinement because the sentence violates his federal and state constitutional rights against cruel and unusual punishment.  See U.S. Const. amends. VIII, XIV; Tex. Const. art. I, § 13; see also Tex. Code Crim. Proc. art. 1.09.  Appellant acknowledges that his sentence is within the statutory range, but argues that the sentence is unconstitutionally disproportionate because of the appellant’s limited participation in the alleged offense.  The State responds that appellant has not preserved his complaint, and, alternatively, that the sentence is not cruel and unusual.  We agree.

            Appellant did not object to the sentence as violating his constitutional rights at the time it was announced.  Nor did he raise these arguments in a post-trial motion.  The constitutional right to be free from cruel and unusual punishment may be waived, as here.  See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996); Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995); Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d).  Therefore, the arguments are not preserved for review. 

Moreover, because appellant’s sentence fell within the statutory range, and because the record lacks any evidence of disparity between it and other sentences levied in like crimes, appellant’s punishment is not disproportionate and does not violate the federal and state constitutional prohibitions of cruel and unusual punishment.  See Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Cooks v. State, 5 S.W.3d 292, 298–99 (Tex. App.—Houston [14th Dist.] 1999, no pet.); see also Solem v. Helm, 463 U.S. 277, 291–92 (1983); Baldridge v. State, 77 S.W.3d 890, 893 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d).  We overrule appellant’s fifth and sixth issues.

Conclusion

            We affirm the trial court’s judgment.

                                                                        /s/        Margaret Garner Mirabal

                                                                                    Senior Justice

Judgment rendered and Memorandum Opinion filed August 1, 2006.

Panel consists of Justice Hudson and Senior Justices Mirabal and Amidei.

Do Not Publish — Tex. R. App. P. 47.2(b).

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Senior Justices Margaret Mirabal and Maurice Amidei sitting by assignment.