Opinion
No. 10-02-152-CR.
Opinion delivered and filed June 11, 2003. DO NOT PUBLISH.
From the 54th District Court, McLennan County, Texas, Trial Court # 2001-931-C.
Before Chief Justice Davis, Justice Vance, and Justice Gray
MEMORANDUM OPINION
Jeffrey Stansell appeals from a conviction and fourteen-year sentence for burglary of a habitation. Stansell alleges in his sole point that the trial court erroneously instructed the jury on the law of parties because the evidence was insufficient to establish that he had knowledge of his accomplice's unlawful intent. We overrule the point and affirm the judgment. On July 21, 2002, Raul Roque came home to find either Stansell or his unidentified accomplice carrying items out of Roque's garage and loading them in Stansell's truck. Stansell drove away, passing Roque, with his unidentified accomplice in the passenger seat. Stansell's truck stalled and Roque caught up within six blocks. Roque confronted Stansell and the unidentified accomplice by asking them why they were in his house. Stansell remained silent. The unidentified accomplice took the items out of Stansell's truck, put them into Roque's truck, apologized, and walked away. Roque called the police on his cellular phone. Stansell restarted the truck with some difficulty and drove three blocks before the truck stalled again. Roque flagged down an officer. Stansell abandoned the truck and fled on foot. Stansell contends that the unidentified accomplice took the stolen items from Roque's garage and the State failed to present sufficient evidence that Stansell knew of the unidentified accomplice's unlawful intent. We disagree. When the record contains evidence which would support the conclusion that the accused committed the offense in concert with someone else, it is proper to instruct the jury on the law of parties. Galvan v. State, 598 S.W.2d 624, 629 (Tex.Crim.App. 1979); Sanchez v. State, 813 S.W.2d 610, 612 (Tex.App.-Houston [1st Dist.] 1991, pet ref'd). A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. Tex. Pen. Code Ann. § 7.01(a) (Vernon 1994); Foster v. State, 25 S.W.3d 792, 796 (Tex.App.-Waco 2000, pet. ref'd). 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 Ann. § 7.02(a)(2) (Vernon 1994). A trial court errs if it submits a theory of liability in the jury charge that is not supported by sufficient evidence. Collier v. State, 999 S.W.2d 779, 787 (Tex.Crim.App. 1999); Foster, 25 S.W.3d at 796. To determine whether a defendant is a party to the offense, we may look to events that occurred before, during and after the commission of the offense. Beardsley v. State, 738 S.W.2d 681, 684 (Tex.Crim.App. 1987); Foster, 25 S.W.3d at 796. Participation in an offense may be inferred from the circumstances and need not be shown by direct evidence. Beardsley, 738 S.W.2d at 684; Foster, 25 S.W.3d at 796; Armstead v. State, 977 S.W.2d 791, 797 (Tex.App.-Fort Worth 1998, pet. ref'd). Evidence in the record supports a law of parties instruction because Stansell was the getaway driver. Stansell drove the truck to Roque's house. Either Stansell or the unidentified accomplice entered Roque's garage without permission, took items from Roque's garage, and then placed them in the bed of the truck. Then Stansell drove the truck away from Roque's house with the unidentified accomplice in the passenger seat. A getaway driver is a party to an offense committed by the conduct of another. Thompson v. State, 697 S.W.2d 413, 417 (Tex.Crim.App. 1985 ); Brewer v. State, 852 S.W.2d 643, 647 (Tex.App.-Dallas 1993, pet. ref'd); Banda v. State, 758 S.W.2d 902, 904 (Tex.App.-Corpus Christi 1988, no pet.); Webber v. State, 757 S.W.2d 51, 55-56 (Tex.App.-Houston [14th Dist.] 1988, pet ref'd). Stansell's pre-arrest silence also supports a law of parties instruction. Roque pulled up next to Stansell's truck and asked him why he was in Roque's house. Stansell remained silent and did not deny that he was in Roque's house. Stansell's silence prior to arrest when confronted by Roque is some evidence of participation in the offense. Waldo v. State, 746 S.W.2d 750, 755 (Tex.Crim.App. 1988); Young v. State, 803 S.W.2d 335, 338 (Tex.App.-Waco 1990), vacated on other grounds, 830 S.W.2d 122 (Tex.Crim.App. 1992). Finally, evidence of Stansell's flight supports guilt and a law of parties instruction. Bigby v. State, 892 S.W.2d 864, 884 (Tex.Crim.App. 1994); Bradley v. State, 48 S.W.3d 437, 442 (Tex.App.-Waco 2001, pet. ref'd). Roque testified that Stansell fled. When Roque called the police, Stansell started his stalled truck and drove away, but a few blocks later, it stalled again. Roque flagged down a passing officer and told the officer that Stansell had tried to take his property. Before the officer headed for Stansell, Stansell abandoned the truck and walked away. After searching, the officer could not find Stansell. We hold that the State introduced sufficient evidence supporting an instruction on the law of parties. Accordingly, we overrule Stansell's sole point. We affirm the judgment. Affirmed.