Opinion
No. 04-08-00226-CR
Delivered and Filed: January 14, 2009.
Appealed the County Court at Law No. 4, Bexar County, Texas, Trial Court No. 206448, Honorable Sarah Garrahan-Moulder, Judge Presiding.
Affirmed.
Sitting: KAREN ANGELINI, Justice, REBECCA SIMMONS, Justice, STEVEN C. HILBIG, Justice.
OPINION
Lavonne Byrd appeals her conviction for misdemeanor theft, arguing the evidence is legally insufficient to support the jury's verdict. We affirm the trial court's judgment.
BACKGROUND
The State charged that Byrd "with intent to deprive the owner, Mike Morales, of property, namely: THREE (3) PAIRS OF PANTS, and ONE (1) DVD, did unlawfully, without the effective consent of the owner, appropriate said property." The charge was based on an alleged shoplifting incident at a Wal-Mart in San Antonio. The parties agree the State did not present any evidence proving Mike Morales was the owner of the property. Rather, the State presented evidence that Wal-Mart was the owner. Byrd argues the State was required to prove the person named as owner in the charging instrument was the actual owner of the property and because it did not so prove, the evidence is legally insufficient to support the conviction.
In its brief, the State points out that a police report lists Mike Morales as the Manager/Owner of the property. However, the State acknowledges the exhibit was never admitted into evidence.
STANDARD OF REVIEW
Byrd raises legal sufficiency challenges under both the federal and state constitutions. We review a federal due process challenge to the legal sufficiency of the evidence by determining whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Prible v. State, 175 S.W.3d 724, 729-30 (Tex.Crim.App.), cert. denied, 546 U.S. 962 (2005). In our review, we measure the evidentiary sufficiency against the "substantive elements of the offense as defined by state law." Fuller v. State, 73 S.W.3d 250, 252 (Tex.Crim.App. 2002) (quoting Jackson v. Virginia, 443 U.S. 307, 324 fn. 16 (1979)). However, when legal sufficiency is challenged under state law, we measure the evidentiary sufficiency against "the elements of the offense as defined by the hypothetically correct jury charge for the case." Fuller, 73 S.W.3d at 252 (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997)); see Gollihar v. State, 46 S.W.3d 243 (Tex.Crim.App. 2001).
FEDERAL DUE PROCESS — SUBSTANTIVE ELEMENTS OF THE OFFENSE
Section 31.03 of the Texas Penal Code provides in relevant part:
(a) A person commits an offense if he unlawfully appropriates property with the intent to deprive the owner of the property.
(b) Appropriation is unlawful if:
(1) it is without the owner's effective consent[.]
TEX. PENAL CODE ANN. § 31.03(a), (b) (Vernon Supp. 2008). The essential elements of theft are (1) a person (2) with intent to deprive the owner of property (3) unlawfully appropriates property. Ex parte Luna, 784 S.W.2d 369, 371 (Tex.Crim.App. 1990). Although the State must prove there is an owner from whom the property was unlawfully appropriated, the owner's name is not a "substantive element" of the theft statute. See id.; see also Fuller, 73 S.W.3d at 253 (holding name of victim is not a substantive element of offense of injury to elderly individual). Because the property owner's name is not a substantive element, the State's failure to prove the name alleged in the information does not render the evidence legally insufficient under Jackson v. Virginia.
As pointed out in Fuller, "[s]tate law does not define the victim's name as a substantive element of the offense by, for example, defining the offense as `injury to an elderly individual named Olen. M. Fuller.'" Id. Similarly, the theft statute does not define the offense as unlawfully appropriating property owned by Mike Morales.
The dissent cites Freeman v. State, 707 S.W.2d 597 (Tex.Crim.App. 1986) and Ward v. State, 829 S.W.2d 787 (Tex.Crim.App. 1992), overruled on other grounds, Riney v. State, 28 S.W.3d 561 (Tex.Crim.App. 2000), to support its conclusion that the name of the owner is a substantive element of the offense of theft. In each of these cases the State was required to prove the owner of property was the person named in the charging instrument. Freeman, 707 S.W.2d at 603; Ward, 829 S.W.2d at 795. However, both cases predate Malik, Gollihar, and Fuller and neither opinion discusses or decides whether the name of the owner of the property is a substantive element of the offense of theft. Instead, the cases appear to simply apply the now-discredited rule that the State is obliged to prove all the allegations in the charging instrument. See, e.g., Ortega v. State, 668 S.W.2d 701 (Tex.Crim.App. 1983), overruled by Gollihar, 46 S.W.3d at 251-56; Weaver v. State, 551 S.W.2d 419 (Tex.Crim.App. 1977), overruled by Gollihar, 46 S.W.3d at 256-57.
In Ward, the State had attempted to amend a burglary indictment to change the name of the property owner.829 S.W.2d at 788. The court of criminal appeals, while discussing whether the appellant had preserved a complaint about a "pleading defect of form or substance within the indictment under Art. 1.14," recited that "the State moved to amend a matter of substance in the indictment." Id. at 795. The dissent suggests the court thus concluded the identity of the property owner was a substantive element of the charged offense. We disagree. The court was unequivocally discussing pleadings, not substantive elements, and referred to the proposed amendment as being one of "substance" rather than one of "form." Id.
The dissent accurately cites Freeman as stating it is "axiomatic" that the charging instrument in a theft case must name the owner of the property. See Freeman, 707 S.W.2d at 603. However, the opinion goes on to say that the article in the code of criminal procedure regarding allegations of ownership in the charging instrument "is a rule of pleading, . . . and is not a part of the definition of the offense of theft." Id.
STATE DUE PROCESS — ELEMENTS OF A HYPOTHETICALLY CORRECT CHARGE
Under the state due process analysis, Byrd's claim is viewed as a variance issue — the trial evidence is different or varies from the allegations in the charging instrument. See Fuller, 73 S.W.3d at 253; Gollihar v. State, 46 S.W.3d 243, 246-47 (Tex.Crim.App. 2001). In determining whether the trial evidence is legally insufficient, only a material variance requires reversal because only a material variance prejudices a defendant's substantial rights. Fuller, 73 S.W.3d at 253. "Allegations giving rise to immaterial variances may be disregarded in the hypothetically correct charge, but allegations giving rise to material variances must be included." Gollihar, 46 S.W.3d at 257; see Fuller, 73 S.W.3d at 253. We decide if the variance is material by determining "whether the indictment, as written, informed the defendant of the charge against him sufficiently to allow him to prepare an adequate defense at trial, and whether prosecution under the deficiently drafted indictment would subject the defendant to the risk of being prosecuted later for the same crime." Gollihar, 46 S.W.3d at 257 ( quoting U.S. v. Sprick, 233 F.3d 845, 853 (5th Cir. 2000) (footnotes omitted)).
Byrd does not complain the failure to prove the name of the owner as alleged in the information prejudiced her defense. The State presented evidence that a group of women, in a coordinated effort, stole merchandise from Wal-Mart. Byrd's defense was she did not knowingly take any property. Given this defense, the variance between the allegation of ownership and proof of ownership could not and did not prejudice her defense. The dissent treats this prong of the materiality inquiry as solely an issue of notice — Byrd relied on the promise the State made that it would prove Mike Morales was the owner of the property. However, this lack of "notice" is not relevant under Gollihar unless it resulted in a failure to inform Byrd of the charge "sufficiently to allow [her] to prepare an adequate defense." Gollihar, 46 S.W.3d at 257. While the dissent apparently claims the variance prevented Byrd from preparing her defense, Byrd does not. We hold the information informed Byrd of the charge against her sufficiently to allow her to prepare her defense.
As the court in Gollihar recognized, there is a difference between claiming a variance under a legal sufficiency claim and claiming lack of notice:
Our holding today would not preclude an appellant from raising a purely "lack of notice" claim that is not tied to a legal sufficiency of the evidence. An appellant may want to raise avariance/insufficiency claim, as described above, as well as a purely notice claim.
Gollihar, 46 S.W.3d at 257 n. 24.
Nor does the variance prevent the application of double jeopardy to this case. The gravamen of the offense of theft is the taking of the property, not the person from whom the property was taken. See Alaniz v. State, 147 Tex. Crim. 1, 177 S.W.2d 965, 967 (1944). The State is precluded from further prosecuting Byrd for theft of the property encompassed by the information. See U.S. v. Apodaca, 843 F.2d 421, 430 n. 3 (10th Cir.) (noting that entire record, not just indictment, may be considered in determining whether double jeopardy precludes subsequent prosecution), cert. denied, 488 U.S. 932 (1988).
We hold the variance was not material. While the State was required to prove Byrd took the named property without the effective consent of the owner, in this case the owner's name was not required to be included in a hypothetically correct jury charge.
PROOF OF OWNERSHIP
Having determined the property owner's name was not a substantive element of the charged offense and was not required in a hypothetically correct charge, we review the evidence in the light most favorable to the verdict to determine if the State proved Byrd committed theft.
Mr. Ricardo Salinas, a loss prevention officer employed by Wal-Mart, testified he saw two women meet up with Byrd, who was pushing a shopping cart with a baby carrier on it. Salinas stated the two women took clothes and threw them under a blanket covering the carrier while Byrd acted as a lookout. He testified he also saw the women hand Byrd store merchandise, which she then placed under the blanket. Byrd was detained outside the store and numerous items from the store were found in her possession. After Salinas identified the property found in Byrd's possession and testified to its value, he stated the property "belonged" to Wal-Mart and Wal-Mart did not give consent to Byrd to take the property. Salinas also testified Byrd "basically admitted to the theft" and she intended to deprive Wal-Mart of its property.
We hold this evidence is legally sufficient to support the jury's verdict that Byrd appropriated property from its owner without the owner's effective consent. The evidence is therefore legally sufficient, under both state and federal due process, to support the judgment.
The trial court's judgment is affirmed.
DISSENTING OPINION
Although I agree with the majority that the issue in question is what constitutes the essential elements of theft, I disagree with the majority's conclusion that proof of Morales's ownership is neither a substantive nor essential element of theft. Accordingly, I respectfully dissent.
The indictment and the jury charge named Mike Morales as the owner of the stolen property. All parties agree that a variance existed between the jury charge identifying Morales as the owner and the proof at trial which failed to identify Morales or his connection to the stolen merchandise. The majority finds the variance immaterial. I believe the variance is fatal under both federal and state standards.
STANDARD OF REVIEW
As the majority correctly sets forth, the federal due process standard is determined by measuring the evidentiary sufficiency against the "`substantive elements of the criminal offense as defined by state law.'" Fuller v. State, 73 S.W.3d 250, 252 (Tex.Crim.App. 2002) (quoting Jackson v. Virginia, 443 U.S. 307, 324 n. 16 (1979)). Under such, our analysis in conducting a legal sufficiency review requires examining the evidence in the light most favorable to the verdict, and asking whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319; accord McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App. 1997). The standard of review is the same whether the evidence is direct, circumstantial, or both. Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999).
When a legal sufficiency claim based on a variance between the indictment and proof is challenged under state law, however, Gollihar v. State, 46 S.W.3d 243, 257 (Tex.Crim.App. 2001), requires an appellate court first determine if the variance is material and prejudices the appellant's substantial rights. Only if the variance is found to be material may an appellate court render the evidence insufficient. Id. Accordingly, only material variances must be included in the hypothetically correct jury charge against which the sufficiency of the evidence is analyzed. Id.
The question this court must address is whether the owner's name is a substantive and essential element of the criminal offense as defined by state law. Jackson, 443 U.S. at 319; Gollihar, 46 S.W.3d at 257. We must, therefore, analyze the elements of theft under state law.
THEFT
A person commits theft if he or she unlawfully appropriates property with the intent to deprive the owner of the property. See TEX. PENAL CODE ANN. § 31.03(a) (Vernon Supp. 2008). The name of the property owner must be alleged in the charging instrument. TEX. CODE CRIM. PROC. ANN. art. 21.09 (Vernon 1989); see also Freeman v. State, 707 S.W.2d 597, 602 (Tex.Crim.App. 1986) ("It is now axiomatic that the name of the title owner of the property or the lawful possessor of the property from whom it was unlawfully taken must be alleged in the charging instrument."). An "owner" is a person who "has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor." TEX. PENAL CODE ANN. § 1.07(a)(35) (Vernon Supp. 2008). "Possession" is defined as "actual care, custody, control, or management." Id. § 1.07(a)(39). "Proof of ownership may be made by circumstantial evidence." Villani v. State, 116 S.W.3 297, 306 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd).
Article 21.09 of the Texas Code of Criminal Procedure requires that when known, "personal property alleged in an indictment shall be identified by name, kind, number, and ownership ." TEX. CODE CRIM. PROC. ANN. art. 21.09 (Vernon 1989) (emphasis added); see also Gollihar, 46 S.W.3d at 258 (distinguishing the model number of a go-cart with article 21.09's "number" requirement referring to quantity). Yet, when the owner of the stolen property is a corporation, it is the preferable pleading practice to allege "special ownership" in a natural person acting for the corporation. State v. Bartee, 894 S.W.2d 34, 44 (Tex.App.-San Antonio 1994, no pet.) (analyzing Texas Code of Criminal Procedure article 21.08's requirement that "[w]here one person owns the property, and another person has the possession of the same, the ownership thereof may be alleged to be in either"). Although this court has repeatedly held that the type of ownership need not be set forth in the indictment, we have never held that the element of ownership need not be proven. Bartee, 894 S.W.2d at 45 ("Any valid form of ownership may be alleged. The State is not required to explain in a theft indictment why a particular person (or entity) was named as owner of the property taken.").
I agree with the State, that the Byrd information complies with the pleading practice recommended by this court in Bartee by identifying Mike Morales as the owner of the property. Id. at 44-45. Although there is no evidence in the record regarding Morales, the State contends that Morales was the manager of the Wal-Mart and is, therefore, an owner under the statute. The case law is replete with examples of different types of employees named as an owner of the company's merchandise for purposes of the theft statute if, at the time the offense is committed, the employee had a greater right to possession than the accused. Freeman, 707 S.W.2d at 603 (security guard); Jackson v. State, No. 02-07-209-CR, 2008 WL 4053028, at *7 (Tex.App.-Fort Worth Aug. 29, 2008, no pet.) (automobile sales person); Villani, 116 S.W.3 at 306 (fraud investigator); Williams v. State, No. 05-02-01185-CR, 2003 WL 1958026, at *1 (Tex.App.-Dallas Apr. 28, 2003, no pet.) (part-time undercover security officer). As a manager, Morales would in fact be an appropriate owner. Here, there is simply no evidence that Morales was the store manager or connected to Wal-Mart in any way. The State did not simply misidentify Morales in the information or the jury charge; instead, the State simply failed to offer any evidence regarding Morales at the trial.
A. Jackson v. Virginia
The federal due process standard is governed by Jackson v. Virginia whereby this court need not determine whether the information incorrectly identified Morales, but must determine whether the State's failure to offer any evidence of Morales's identity amounted to an evidentiary insufficiency with regard to a substantive element. Jackson, 443 U.S. at 319. Relying on Gollihar and Fuller, the majority concludes an owner's name is not a substantive element of theft. But these cases involved a minor discrepancy in the description of the stolen property and the given name of the victim, respectively. See Gollihar, 46 S.W.3d at 244 (incorrect model number of stolen go-cart); Fuller, 73 S.W.3d at 251 (victim alleged in indictment as "Olen M. Fuller" but identified as "Buddy Fuller" at trial); see also Stevens v. State, 891 S.W.2d 649, 650 (Tex.Crim.App. 1995) (indictment alleged pseudonym for victim's legal name, but trial evidence used the victim's legal name). Here, the State alleged a completely different owner, not simply an incorrect or incomplete first name of the correct owner.
In determining whether the owner's name is a substantive element, the case of Ward v. State is informative. Ward v. State, 829 S.W.2d 787, 795 (Tex.Crim.App. 1992), overruled on other grounds by Riney v. State, 28 S.W.3d 561 (Tex.Crim.App. 2000) ( Riney overruled Ward to the extent that physical interlineation of the original indictment is the exclusive means of effecting an amendment to the indictment). In Ward, the State attempted to amend the indictment on the day of trial to change the owner's name from "Seth Haller" to "Steve Scott." Id. In finding that the trial court incorrectly amended the indictment, the Court of Criminal Appeals held "the State's proof that the owner of the burglarized building was Steve Scott was insufficient to prove the owner was Seth Haller as alleged in the indictment. The evidence is therefore insufficient to support appellant's conviction." Id. The court further concluded that the misidentification of the building-owner-complainant in the indictment went to a substantive element of the charged offense, namely the consent of the owner. Id. The materiality of the owner's name has been acknowledged as far back as 1919.
A name may be more or less material in an indictment, according to the facts therein set forth, and when used to designate ownership as in theft or the assaulted party, in those pleadings where the name is material and occurs but once, or where same represents a substantial element of the offense charged, as is the case in each of the authorities cited by appellant in support of this contention, a misnomer might be fatal, unless the same was idem sonans. . . .
Hardin v. State, 85 Tex. Crim. 220, 226, 211 S.W. 233, 236 (1919). This case is no different. The information alleged Morales was the true owner and the State proved Wal-Mart was the true owner. The identification of the owner, and the lack of consent thereof, is a substantive element of theft.
Examining the evidence in the light most favorable to the verdict, a rational trier of fact could not have found, beyond a reasonable doubt, that Byrd, "with intent to deprive the owner, Mike Morales, of the property . . . did unlawfully, without the effective consent of the owner, appropriate said property." See Jackson, 443 U.S. at 319; McDuff, 939 S.W.2d at 614. Accordingly, the State's failure to prove the name alleged in the indictment renders the evidence legally insufficient under Jackson v. Virginia.
B. Gollihar v. State
The majority analyzes the variance under Gollihar and holds the evidence is sufficient. I disagree. Even under the state standard set forth in Gollihar, the evidence in the present case is legally insufficient. The Gollihar court's analysis rests on the holding in Malik that a Jackson review ought to be limited to "essential elements" of the offense. See Gollihar, 46 S.W.3d at 256 (citing Malik v. State, 953 S.W.2d 234, 236 (Tex.Crim.App. 1997)). Malik made clear that the sufficiency of the evidence is no longer measured by the jury charge actually given in a case. Instead, the
sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Such a charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. This standard can uniformly be applied to all trials, whether to the bench or to the jury, whether or not the indictment is facially complete, and regardless of the specific wording of the jury charge actually given.
Malik, 953 S.W.2d at 240 (footnote omitted); see also Gollihar, 46 S.W.3d at 257. Moreover, only allegations giving rise to material variances must be included in the hypothetically correct jury charge. Gollihar, 46 S.W.3d at 257. We must, therefore, determine whether the variance in question is material.
We review a material variance by examining "whether the indictment, as written, informed the defendant of the charge against him sufficiently to allow him to prepare an adequate defense at trial, and whether prosecution under the deficiently drafted indictment would subject the defendant to the risk of being prosecuted later for the same crime." Id. at 248 (footnotes omitted) (quoting United States v. Sprick, 233 F.3d 845, 853 (5th Cir. 2000)). I note at the outset that the information in this case was not deficient and that the jury charge correctly mirrored the information. However, an analysis under Gollihar follows.
1. Ability to Prepare an Adequate Defense
The majority contends that Byrd's failure to raise lack of notice in her defense negates the first part of the Gollihar test. I disagree. The State is required to prove each and every element of the charged offense; the defense need not bring insufficiencies in the evidence to the attention of the State. TEX. PENAL CODE ANN. § 2.01 (Vernon 2003). The information alleged that Morales was the owner of the merchandise. See Fuller, 73 S.W.3d at 257 (Keller, P.J., concurring) ("Unlike the go-cart model number in Gollihar, at least part of the complainant's name is required by law to be in the indictment."). The defense, therefore, had notice with regard to Morales. The information is completely silent with regard to any notice of Wal-Mart's ownership. Thus, the information was insufficient to inform Byrd that she was charged with unlawful appropriation of property belonging to Wal-Mart. See Ward, 829 S.W.2d at 794 ("It is well-established in this state that the notice must come from the face of the charging instrument.").
2. Double Jeopardy
Admittedly, I agree that double jeopardy has attached based on the facts alleged under the information in the present case. The "same evidence test" looks at whether retrial would involve the same witnesses, testimony, and evidence as were used in the previous prosecution. Hendrix v. State, 150 S.W.3d 839, 855 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd) (Hudson, J., concurring)) (citing Byrd v. State, 90 Tex. Crim. 418, 422, 235 S.W. 891, 893 (1921) (holding that where only one transaction is involved, only one conviction can result)). Because the State's key witness, Officer Esquivel, could have testified that Morales was the owner of the property in question, only one conviction could be obtained. But this does not end the analysis. Although Gollihar requires the appellate court to consider both notice and lack of double jeopardy, the test does not require both to make the variance material. See Gollihar, 46 S.W.3d at 257 ((citing Feeny v. State, 62 Tex. Crim. 585, 138 S.W. 135, 138 (1911) (op. on reh'g)) (adopting the Fifth Circuit test: "A variance is not now regarded as material unless it is such as might mislead the defense, or might expose the accused to the danger of being put twice in jeopardy for the same offense." (emphasis added)). Thus, even though jeopardy has presumably attached, I believe under the rule adopted in Gollihar, the evidence presented at trial was a material variance from the allegations within the jury charge.
3. Analysis
Because the variance is material, the hypothetically correct jury charge must include the name of the owner. See Wilson v. State, No. 05-06-00788-CR, 2007 WL 2193347, at *3 (Tex.App.-Dallas Aug. 1, 2007, pet. ref'd) (citing Gollihar, 46 S.W.3d at 257) ("Thus, in Gollihar's terminology, the variance in Ward was material and fatal to the conviction."). Even assuming the majority is correct, that the State was not required to allege the name of the owner, "when the State alleges unnecessary matters that are descriptive of the essential elements of the crime, the State must prove the descriptive matters as alleged." Brown v. State, 212 S.W.3d 851, 860 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd), see also Gollihar, 46 S.W.3d at 253 ("But the Court is clearly not willing to allow the hypothetically correct jury charge to wholly re-write the indictment to charge a different offense."). The State was, therefore, required to prove that Morales was the owner of the property. After a thorough review, I note that the record is completely silent regarding Morales. There is no testimony regarding who Morales is, his employment with Wal-Mart, any description of his responsibilities with Wal-Mart, or that he possessed a greater right to the property than did Byrd. Although the State may have proved that the property was owned by Wal-Mart, the State failed to prove that Mike Morales was the owner of the property, or more specifically that Mike Morales had a greater right to possession of the property than did Byrd. As such, the evidence is legally insufficient under the standard set forth in Gollihar.
What is particularly troubling in this case is the potential for abuse under the majority's opinion. Part of the proof necessary to establish theft is that there was an unlawful appropriation, which is defined as "without the owner's effective consent." The State cannot meet its burden of establishing lack of the owner's consent if the owner need not be identified. More importantly, the defense cannot prepare if it does not know whose consent was not obtained. Furthermore, the majority's holding that the name of the owner is not a substantive element of theft can only lead to absurd results. By not requiring the State to name the owner, the State need only prove that a person possessed property. Any name could be inserted in the charging instrument as the owner. As the appellant points out, the State could allege anyone, including a fictitious person or even Buddha as the owner because such identity would not have to be proven beyond a reasonable doubt. The defendant would be left trying to prepare a defense without knowing precisely whom the State contends failed to give effective consent.
CONCLUSION
Because the owner's name is a substantive element of the offense of theft, a rational trier of fact could not have found the essential elements of the offense beyond a reasonable doubt as required by Jackson v. Virginia. Additionally, because the variance between the charging instrument and the proof at trial was a material variance, and must therefore be included in a hypothetically correct jury charge, the evidence is legally insufficient under Gollihar v. State. As such, I respectfully dissent.