Facts:

John Doe (Doe) came from Louisiana to find work but did not succeed in finding any. While in Tyler, Doe occupied his time with Mark Massie (Massie). According to Doe, on March 24, 2006, Doe, who had been consuming alcohol and was either intoxicated or hung-over, was riding with Massie in Massie's silver Pontiac. Massie stopped at the 1st Baptist Church Annex, left Doe in the vehicle, and returned carrying three electric guitars.

Massie then drove with Doe to several pawn shops and music stores to pawn the guitars. Massie told Doe he had forgotten his identification and asked Doe to try to pawn the guitars. Doe agreed, and when he was asked for identification, Doe produced his own drivers license.

At the first shop, the proprietor suspected the guitars had been stolen, photographed two of the guitars, and refused to take the guitars. As Doe walked away, the shop owner heard Doe tell Massie the store would not buy the guitars. Massie then said something like, "It's okay, Mike Mott will buy them." Doe was only able to pawn one guitar.

Issue:

Did Doe commit burglary of a building?

Short Answer:

No. Doe did not enter the building or take the guitars, and the State does not have any evidence that he did. Further, Doe cannot be convicted pursuant to section 7.02 of the Penal Code because he neither intended Massie to burglarize the Church Annex nor solicited, encouraged, directed, aided, or attempted to aid Massie to burglarize the annex.

Discussion:

To commit the offense of burglary, Doe must have "without the effective consent of the owner . . . enter[ed] [the annex] . . . and commit[ed] . . . a theft. . . ." Tex. Pen. Code Ann. § 30.02 (Vernon 2003). While Doe admits to being at the scene while the burglary occurred, he never entered the annex, and the State does not have any evidence proving Doe did: There was no sign of forced entry, and the police did not find any fingerprints on the scene. Instead, Doe remained in Massie's car while Massie went into the annex and returned with the three guitars. Because Doe never entered the annex, he did not commit burglary of a building. The State will point out Doe tried to pawn the guitars and the guitars were stolen from within the annex. But it is difficult to conceive why Doe would admit to being on the scene, to trying to pawn the guitars, and then lie about not going inside the annex.

Even though he did not enter the annex, Doe still may be found guilty pursuant to section 7.02 of the Penal Code. To be convicted, Doe must, with the intent that Massie burglarize the church annex, have solicited, encouraged, directed, aided, or attempted to aid Massie to burglarize the annex. Further, mere presence is not sufficient to satisfy the requirements of section 7.02, and even knowing about a crime and failing to conceal it to the authorities is not enough either. Medina v. State, 7 S.W.3d 633, 641 (Tex. Crim. App. 1999) (citing Blake v. State, 971 S.W.2d 451, 454-55 (Tex. Crim. App. 1998); Smith v. State, 721 S.W2d 844, 851 (Tex. Crim. App. 1986). Doe was merely present as he sat in Massie's care while Massie burglarized the annex. And Doe was not driving the vehicle and cannot be considered the getaway car driver. And there is no evidence he was acting as a lookout either. Instead, Doe was incapacitated, either intoxicated or hung-over, and was sitting in the car while Massie entered the annex for reasons unknown to Doe. Doe's assistance came after Massie burglarized the annex when he attempted to pawn the guitarsCguitars he did not know had been stolen, and at worst, he merely concealed Massie's suspicious activities at the annex. But concealment after the fact is not enough to satisfy section 7.02 of the Penal Code. Id. And there is no evidence that Doe solicited, encouraged, directed, aided, or attempted to aid Massie during the burglary.

Conclusion:

John Doe did not enter the annex and cannot be convicted for burglary of a building because of his own actions. And he cannot be convicted pursuant to section of 7.02 of the Penal Code because he did not intend for Massie to commit burglary, nor did he solicit, encourage, direct, aid, or attempt to aid Massie during the commission of the burglary of the annex.