Bobby Jack West, Jr. v. State, 07-16-00195-CR

Background

Home of S. and Mr. Boren was burglarized; multiple items taken including an AR-15 Bushmaster rifle, a 9mm handgun, tools, an iPad, and jewelry.
Witness saw two males and a female in the Boren backyard; witness later identified appellant (West) as one of the males carrying a long black gun case and two small cases.
Police found West in the passenger seat of a car near a nearby house; his clothing matched the witness description and a camouflage cap was found nearby.
Officers recovered Boren property on or near the car and in a nearby house (long gun case with Bushmaster rifle, small case with 9mm, tool kit, diamond bracelet found in West’s pocket, iPad and jewelry in the house where others hid).
West was indicted on burglary of a habitation (entering to commit theft), theft of the Bushmaster rifle, and felon in possession of a firearm; convicted on all counts; one indictment count was abandoned pretrial.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (West)	Held
Sufficiency—burglary (Issue 3)	Evidence shows West participated in breaking/entry and removal of stolen property; guilty as party to burglary.	Insufficient evidence he burglarized the habitation.	Affirmed: sufficient evidence to convict as party to burglary.
Sufficiency—felon in possession (Issue 4)	West was identified carrying gun case; firearms found near him; possession proved.	No direct link between West and the firearms.	Affirmed: evidence permitted conviction for felon-in-possession.
Mistrial for officer comment about narcotics (Issue 2)	Any harm cured: court sustained objection and instructed jurors to disregard; second officer testified about possible narcotics without objection.	Comment was inflammatory; instruction insufficient—mistrial required.	Denied: no reversible error; any harm cured and same evidence came in without objection.
Double jeopardy—convicted of burglary and theft (Issue 1)	Charging/theft conviction for the Bushmaster duplicates the burglary allegation (burglary premised on committing theft).	Multiple theft units could exist; burglary count did not specify which item/owner; record not clear on the jury’s basis.	Denied (not preserved): double-jeopardy claim is not clearly apparent on the face of the record and requires further proceedings; conviction affirmed.

Key Cases Cited

Powell v. State, 194 S.W.3d 503 (Tex. Crim. App. 2006) (defendant may be guilty of habitation burglary as a party even if he did not personally enter)
Valle v. State, 109 S.W.3d 500 (Tex. Crim. App. 2003) (error in admission cured when same evidence admitted elsewhere without objection)
Ex parte Denton, 399 S.W.3d 540 (Tex. Crim. App. 2013) (double-jeopardy claim may be raised on appeal if violation is clearly apparent on face of record and procedural default serves no legitimate state interest)
Duran v. State, 492 S.W.3d 741 (Tex. Crim. App. 2016) (a defendant may not be punished for both burglary and the underlying offense when burglary allegation is entry plus commission of that same underlying felony)
Langs v. State, 183 S.W.3d 680 (Tex. Crim. App. 2006) (jury verdict that could rest on a theory violating double jeopardy is not enough to make the violation clearly apparent on the record)
Byrd v. State, 336 S.W.3d 242 (Tex. Crim. App. 2011) (theft gravamen is ownership plus specific property; those elements protect against double jeopardy)
Johnson v. State, 364 S.W.3d 292 (Tex. Crim. App. 2012) (unit of prosecution for theft derives from combination of property and ownership)
Iglehart v. State, 837 S.W.2d 122 (Tex. Crim. App. 1992) (thefts of different items or different owners during same burglary are distinct theft offenses)
Gonzalez v. State, 8 S.W.3d 640 (Tex. Crim. App. 2000) (defendant must ordinarily preserve double-jeopardy objections before jury charge submitted)
Bigon v. State, 252 S.W.3d 360 (Tex. Crim. App. 2008) (describes the three types of double-jeopardy claims)