Immer Jonathan A/K/A Immer Perez A/K/A Immer Najera v. State
11-14-00321-CR
| Tex. App. | Nov 30, 2016Background
- Early morning May 19, 2013: Higginbotham Brothers warehouse in Brownwood was burglarized; main gate lock cut with bolt cutters, warehouse lock missing, forklift hot-wired, two vehicles and 12 pallets of roofing shingles stolen (value > $100,000).
- Later that morning Officer Elting observed a silver Nissan Xterra speeding and a flatbed semi-truck carrying shingles traveling closely behind; the truck lacked headlights and was later found apparently hot-wired and abandoned in Rising Star.
- The Xterra was stopped near the officer’s residence; occupants were driver Alfonso Hernandez, front passenger Immer Jonathan (Appellant), and rear passenger Jose Hernandez (who had scratches and signs consistent with running through brush).
- Searches: Xterra contained a Home Depot receipt for 24-inch HK Porter bolt cutters, a handwritten list of business addresses (including Higginbotham’s), bolt cutters, and construction business cards; the stolen truck contained a matching pair of 24-inch HK Porter bolt cutters and boot prints matching Appellant’s boots.
- Appellant and companions produced foreign IDs, no valid driver’s licenses; CBP placed immigration holds and they were arrested. Trial convicted Appellant of: engaging in organized criminal activity, theft (> $100,000 < $200,000), burglary of a building, and unauthorized use of a vehicle; sentences ordered concurrent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Motion to suppress evidence from Xterra | Officer Elting lacked reasonable suspicion and unlawfully prolonged detention, so evidence should be suppressed | Stop was supported by (speeding, proximity to truck, suspicious conduct); continued detention justified by investigatory leads and lack of valid driver’s license | Denied—stop and continued detention were reasonable under Terry and objective facts supported continued investigation |
| 2. Sufficiency for unauthorized use of a vehicle | State failed to prove Appellant operated the stolen truck | State argued liability under law of parties for assisting/acting with intent to promote the offense | Affirmed—sufficient evidence under parties theory (traveling together, matching bolt cutters/receipt, boot prints) |
| 3. Sufficiency for burglary of a building | No direct evidence Appellant entered the building or possessed stolen property | State relied on circumstantial evidence and parties liability showing participation in burglary | Affirmed—sufficient circumstantial evidence and parties liability supported conviction |
| 4. Sufficiency for theft (> $100k < $200k) | No evidence Appellant used the forklift, loaded shingles, or drove truck | State relied on law of parties and preparations/evidence linking Appellant to theft plan | Affirmed—sufficient evidence under parties theory to prove theft |
| 5. Sufficiency for engaging in organized criminal activity | State failed to show continuity/intent to carry on criminal enterprise; only a single act | State pointed to planning evidence (list of addresses including prior burglarized sites, purchased bolt cutters, coordinated conduct) | Affirmed—evidence showed intent to form a group to carry on continued criminal activities (Nguyen standard) |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for reviewing sufficiency of the evidence)
- Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (application of Jackson standard in Texas)
- Nguyen v. State, 1 S.W.3d 694 (Tex. Crim. App. 1999) (continuity/intent element for organized criminal activity requires more than an ad hoc act)
- Terry v. Ohio, 392 U.S. 1 (1968) (reasonable suspicion standard for investigative stops)
- Kothe v. State, 152 S.W.3d 54 (Tex. Crim. App. 2004) (traffic-stop investigation not resolved until officer confirms driver has valid license)