Opinion
No. 11-18-00123-CR
05-07-2020
CECILIA TORRES MAGANA, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 2 Midland County, Texas
Trial Court Cause No. 158216
MEMORANDUM OPINION
The jury convicted Appellant, Cecilia Torres Magana, of theft, and the trial court assessed her punishment at confinement for 180 days in the Midland County Jail, a fine of $500, and $1,330 in restitution. See TEX. PENAL CODE ANN. § 31.03 (West 2019). The trial court, however, suspended the imposition of the sentence and placed Appellant on community supervision for a term of twelve months. In two issues on appeal, Appellant argues that (1) the evidence presented at trial was insufficient to support her conviction and (2) the jury charge contained reversible error. We affirm.
Background Facts
Adan Atayde's parents purchased a parcel of land from a man named San Powell, who allegedly sold the property on behalf of AHN Corporation. The rightful ownership of the real property was heavily discussed at trial. Adan's parents purchased the property from Powell for Adan and his two brothers to utilize. In July 2016, Adan and his wife, Marisela Atayde, placed a mobile home on the property.
There is a dispute as to whether the man's name is San Powell or Sam Powell. For consistency with the record, we will refer to him as San Powell.
In September 2016, Adan and Marisela were in the process of moving their possessions onto the property but did not reside there. On September 15, 2016, Adan and Marisela went to the property to deposit some of their belongings. Upon their arrival, they noticed that the property was roped off with "no trespassing" ribbon and that there was a sign on the door that read, "property of A&N Finance." Marisela took pictures of the sign and ribbon and sent the pictures to Miranda Chavez, an investigator with the Midland County Sheriff's Department.
Appellant, a real estate agent, testified at trial that, in August 2016, AHN Corporation still owned the property in fee simple and that she had signed a listing agreement with AHN Corporation to sell the real estate. When Appellant went to the property preparing to sell it, she found several "squatters" living on the land. At that point, Appellant told the owner of AHN Corporation, Angel Nabarrette, about the presence of squatters. Pursuant to Nabarrette's instructions, Appellant interviewed the squatters and told them to contact the Texas Real Estate Commission or law enforcement for assistance with the property ownership discrepancy; however, none of the squatters left as a result of the interviews. Accordingly, on September 15, 2016, Appellant placed the "no trespassing" ribbon and sign on the door of the Ataydes' mobile home, as well as the homes of the other squatters.
It is uncontroverted that AHN Corporation was the rightful owner of the real property as evidenced by a warranty deed. Adan Atayde's parents appear to have been the victims of real estate fraud involving San Powell.
On September 18, 2016, the Ataydes were again dropping off personal property at their mobile home. While there, they saw Appellant and her husband, Jaime Magana, loading the Ataydes' personal property into the Maganas' pickup. Adan confronted the Maganas, who responded that the real property belonged to Nabarrette and that they were instructed to clear off the lot. Marisela then told Appellant that she was calling the sheriff. Appellant responded that she had already called the sheriff; however, when the officers from the sheriff's department arrived at the property, they stated that they never received a call from Appellant. Ultimately, the Maganas left without taking any of the Ataydes' personal property.
The next day, when the Ataydes returned to their mobile home, they noticed that some of their personal property was missing. Some, but not all, of the property was returned a day or so later. The missing property that the Ataydes never received back consisted of twenty turtle shells, a water pump, fifty T-posts, ten pieces of sheet metal, and ten "30-foot metal pipes." The value of the stolen property was approximately $1,330.
On September 20, 2016, Investigator Chavez went to Appellant's home to question her about the stolen property and to issue her a criminal trespass warning. During the interview, Appellant was rude and irritated. Further, Appellant admitted to taking the missing personal property from the Ataydes and insisted that she had every right to be on the real property.
Appellant was ultimately arrested and charged with the Class A misdemeanor offense of theft. At trial, during the charge conference, Appellant objected to the inclusion of the law of parties and the failure to include a definition of the term "knowingly." The jury convicted Appellant, and this appeal followed.
Evidentiary Sufficiency
In Appellant's first issue, she argues that the evidence presented at trial is insufficient to support her conviction for theft because the evidence was insufficient to overcome her mistake-of-fact defense. Specifically, Appellant claims that she did not have the requisite intent to commit theft because she made a reasonable mistake of fact. We disagree.
We review a sufficiency of the evidence issue under the standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288-89 (Tex. App.—Eastland 2010, pet. ref'd). Under the Jackson standard, we review all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). The trier of fact may believe all, some, or none of a witness's testimony because the factfinder is the sole judge of the weight and credibility of the witnesses. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Isham v. State, 258 S.W.3d 244, 248 (Tex. App.—Eastland 2008, pet. ref'd). We defer to the trier of fact's resolution of any conflicting inference raised by the evidence and presume that the trier of fact resolved such conflicts in favor of the verdict. Jackson, 443 U.S. at 326; Brooks, 323 S.W.3d at 899; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
Appellant argues that she did not have the requisite intent to commit theft. A person commits the offense of theft if she "unlawfully appropriates property with intent to deprive the owner of property." PENAL § 31.03(a). A person acts intentionally with respect to the nature of her conduct or a result of her conduct when it is her conscious objective or desire to engage in the conduct or cause the result. PENAL § 6.03(a) (West 2011). However, "[i]t is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense." PENAL § 8.02(a). The jury charge contained instructions on the defense of mistake of fact. Appellant contends that, because of her mistaken belief that she had a right to take the property, she did not possess the requisite intent required for the commission of theft.
The issue of intent in a theft case is a fact question for the jury to resolve. See State v. Fuller, 480 S.W.3d 812, 823 (Tex. App.—Texarkana 2015, pet. ref'd). Intent may be and often times is proved through circumstantial evidence. See Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004) ("Intent may also be inferred from circumstantial evidence such as acts, words, and the conduct of the appellant."); Lewis v. State, 715 S.W.2d 655, 657 (Tex. Crim. App. 1986) ("It is well settled that the intent to commit theft may be inferred from the circumstances."); Robles v. State, 664 S.W.2d 91, 94 (Tex. Crim. App. 1984).
In this case, prior to considering Appellant's mistake-of-fact defense, it appears that whether the elements of theft were satisfied was never in doubt. Marisela testified that she witnessed Appellant and Appellant's husband attempt to take the Ataydes' personal property and load it into the Maganas' pickup on September 18, 2016. Investigator Chavez further testified that Appellant admitted to taking the personal property from the Ataydes' mobile home.
Even when considering Appellant's mistake-of-fact defense, the result is the same. By definition, the mistake-of-fact defense must be based on a "reasonable belief about a matter of fact." PENAL 8.02(a). The defense is inapplicable where the "mistaken belief is not reasonable." See Gant v. State, 814 S.W.2d 444, 451-52 (Tex. App.—Austin 1991, no pet.); see also Thompson v. State, 236 S.W.3d 787, 800 (Tex. Crim. App. 2007) (recognizing that a "mistake must be reasonable for it to constitute a circumstance that exculpates the defendant of the offense charged"). The Penal Code defines a "reasonable belief" as one that is "held by an ordinary and prudent man in the same circumstances as the actor." PENAL § 1.07(a)(42) (West Supp. 2019). Unlike many other statutory defenses, a mistake-of-fact defense negates an element of the offense—the defendant's culpable mental state. See Celis v. State, 416 S.W.3d 419, 430-31 (Tex. Crim. App. 2013).
Here, Appellant testified that she was familiar with the real estate scam involving San Powell. Appellant further testified that she had been a real estate agent for a few years and that she had signed fifty-four real estate contracts with AHN Corporation. In her years of experience, Appellant stated that she had occasionally handled civil eviction cases and appeared to have a working knowledge of how evictions are supposed to be conducted. Moreover, during her testimony, Appellant exhibited that she understood that AHN Corporation's ownership of the real property did not affect any of the personal property on the premises. Appellant also admitted that she does not typically agree to sell a $200,000 tract of land for a $100 commission as she had agreed to do in this case.
Appellant's defense is further weakened by the discrepancy as to whether she called law enforcement during the conflict that occurred on September 18, 2016, outside the Ataydes' mobile home. Likewise, the timing of the theft does not bode well for the reasonableness of Appellant's mistake of fact considering the theft occurred a single day after having been confronted by the Ataydes and law enforcement. Considering all of these circumstantial factors together, a jury could have determined that Appellant did not make a reasonable mistake of fact and, instead, intended to deprive the Ataydes of their personal property.
Thus, we believe that a rational trier of fact could have found all the elements of theft beyond a reasonable doubt. Accordingly, the evidence is sufficient to support Appellant's conviction, and we overrule Appellant's first issue.
Jury Charge Error
In Appellant's second issue, she contends that the trial court erred when it instructed the jury on the law of parties and failed to define the term "knowingly." A review of alleged jury-charge error involves a two-step analysis. Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005); Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex. Crim. App. 1994). First, we must determine whether the charge contains any actual error; second, if there is actual error, we must determine whether the error resulted in sufficient harm to require reversal. Ngo, 175 S.W.3d at 743-44; Abdnor, 871 S.W.2d at 731-32. If the appellant preserved the error by timely objecting to the charge, an appellate court will reverse so long as the appellant demonstrates that she suffered some harm. Sakil v. State, 287 S.W.3d 23, 25-26 (Tex. Crim. App. 2009).
In this case, Appellant made a timely objection to both of the jury charge issues raised on appeal. Accordingly, any potential error must be reversed upon a showing by Appellant that she has suffered some harm. Id.
A trial court must charge the jury fully and affirmatively on the law applicable to the case. See TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). By contrast, a trial court is under no obligation to provide an instruction in a jury charge on matters not raised by the evidence. See Harris v. State, 645 S.W.2d 447, 456 (Tex. Crim. App. 1983). We will discuss the two allegations of jury charge error in turn.
Law of Parties
Under the law of parties, "[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." PENAL § 7.01(a). A person is criminally responsible for theft 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." PENAL § 7.02(a)(2). If there is sufficient evidence to support Appellant's guilt acting alone, any error in submitting an instruction on the law of parties is harmless. Black v. State, 723 S.W.2d 674, 675 (Tex. Crim. App. 1986).
In this case, there was evidence to support Appellant's guilt acting alone, as well as under the law of parties. As previously mentioned, Marisela testified that Appellant and Jaime Magana both attempted to steal personal property on September 18, 2016. Investigator Chavez further testified that Appellant confessed to having taken the personal property. At trial, Appellant testified that she did not take any of the property, insisting that her husband did it by himself because she was worried about the presence of snakes and scorpions. Nevertheless, Jaime Magana was seemingly under the direction of Appellant and completed laborious physical tasks on her behalf. Taken together, we find that the evidence in the case at bar was sufficient to convict Appellant either acting alone or as a party to the offense. Accordingly, it was not error to include the law-of-parties instruction in the court's charge.
Failure to Define "Knowingly"
Appellant's second allegation of jury charge error concerns the trial court's failure to define the term "knowingly." The Court of Criminal Appeals stated in Ex parte Smith:
By implication at least the Court has thus indicated that neither intentionally nor knowingly nor any other culpable mental state—as distinguished from specific intent to deprive of property—is a required element of the offense of theft defined by § 31.03(a) and (b)(1). Today we make explicit that which has heretofore been implicit in germane decisions.Ex parte Smith, 645 S.W.2d 310, 311 (Tex. Crim. App. 1983). Moreover, the jury charge in the present case did not even mention the words "knowing" or "knowingly." Consequently, the charge was not required to define "knowingly." The mens rea issue complained of in Appellant's second issue actually goes to Appellant's mistake-of-fact defense. A mistake-of-fact instruction, however, was included in the court's charge. Because the trial court was not required to define "knowingly" in its charge, we conclude that it was not error to exclude the definition. Therefore, we overrule Appellant's second issue.
This Court's Ruling
We affirm the judgment of the trial court.
KEITH STRETCHER
JUSTICE May 7, 2020 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J. Willson, J., not participating.
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.