Opinion
Nos. 05-03-00479-CR, 05-03-00480-CR.
Opinion issued February 23, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 194th Judicial District Court Dallas County, Texas, Trial Court Cause Nos. F01-02413-QM F02-71027-QM. Affirmed.
Before Justices WHITTINGTON, WRIGHT, and LANG.
OPINION
Dawda Mboob appeals his convictions for theft of property valued at $1500 or more but less than $20,000 and arson. After finding appellant guilty, the trial judge assessed punishment at two years' confinement for theft and eight years' confinement for arson. In four points of error, appellant claims the evidence is legally insufficient to support his convictions and the trial judge erred in allowing certain evidence and questioning one of the State's witnesses. We affirm the trial court's judgments.
Background
On October 8, 2001, Officer John Roberts was patrolling the area around Skillman Street and Eastridge Drive when he saw flames and heavy smoke coming from the Red Coleman liquor store. Roberts called the fire department who arrived a few minutes later. The following day, investigators determined the fire had been intentionally set. Appellant, the manager of the Red Coleman, was subsequently arrested and charged with theft and arson. After being convicted of both offenses, appellant filed this appeal.Legal Sufficiency of the Evidence
In his second and third points of error, appellant claims the evidence is legally insufficient to support his convictions. Under both points, appellant argues the evidence is insufficient because the State relied on circumstantial evidence to show appellant took the money in question and then set fire to the store. We disagree. When reviewing challenges to the legal sufficiency of the evidence, we apply well known standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Garcia v. State, 57 S.W.3d 436, 441 (Tex.Crim.App. 2001), cert. denied, 537 U.S. 1195 (2003). When reviewing a case comprised wholly of circumstantial evidence, the standard of review is the same as it is for reviewing cases in which direct evidence exists. Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999); Wilson v. State, 863 S.W.2d 59, 65 (Tex.Crim.App. 1993). Thus, we evaluate all of the evidence in the record, both direct and circumstantial, whether admissible or inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999); see Johnson v. State, 967 S.W.2d 410, 412 (Tex.Crim.App. 1998). Circumstantial evidence, by itself, may be enough to support the verdict. See Smith v. State, 965 S.W.2d 509, 515 (Tex.Crim. App. 1998). A person commits theft if he unlawfully appropriates property with intent to deprive the owner of property. Tex. Pen. Code Ann. § 31.03(a) (Vernon 2003). Appropriation of property is unlawful if it is without the owner's effective consent. Tex. Pen. Code Ann. § 31.03(b). "Property" includes money. Tex. Pen. Code Ann. § 31.01(5)(C). A person commits arson if he starts a fire with intent to destroy or damage any building, habitation, or vehicle knowing that it is within the limits of an incorporated city or town. Tex. Pen. Code Ann. § 28.02(a)(2)(A). Although appellant contends the evidence is legally insufficient to support his convictions for theft and arson, we disagree. During trial, Emmanuel Ward testified he was a cashier at Red Coleman's Liquor Store at 6102 Skillman Street in Dallas. He worked the evening shift from either 2:00 p.m. or 4:00 p.m. until the store closed at midnight. Ward testified appellant was his boss and that they "never" worked the same shift because appellant worked the first shift. According to Ward, the employees locked the door to the store about five minutes before closing. Although they would still sell to people in the store at that time, they would not allow anyone else in. Ward testified that on the evening of October 7, 2001, he was working with a female employee named Helen. They locked the door around 11:55 p.m. that night. Appellant arrived shortly thereafter and let himself in with a key. He went straight to the cash register and began counting the money. Appellant told Helen to go home and told Ward to take some juice products and other drinks to the cooler in the back of the store. Ward could not see appellant or the register from the cooler in the back. When Ward finished, appellant told him to clock out, set the alarm, and go home. Ward clocked out at 12:31 a.m. on October 8. They locked the door, and appellant drove Ward home. Appellant called Ward around 2:00 a.m. to tell him there was a fire in the building but not on the Red Coleman side. He claimed that a friend of his working security had called and told him of the fire. The following morning, Ward met Terry Wall, Ghezzai Medhanie, and appellant at the store and gave a statement. Ward further testified he and appellant both had keys to the store. However, Ward did not have a key to the safe; appellant had the only key to the safe. The only access to the store was through the front door. Although the store had a back door, it had "never been opened" since he worked there because they stored "Dr. Pepper and other stuff right at the back of that exit." Ward testified about the store policy regarding cash. The employees were not to keep more than $50 cash in the cash register at any time. When cash on hand exceeded that amount, the employees put the money in an envelope, sealed it, and placed the envelope in the slot on the top of the safe. The employee would indicate the amount of cash in the envelope and sign for the envelope. All the excess cash was in the safe. Ward testified that when he finished that night, appellant told him to set the alarm and leave. He did not smell any smoke or see any fire when he left. Captain Linda Osborn of the Dallas Fire Department arson division testified she investigated the fire at the Red Coleman Store. When she visited the site the morning after the fire, she told Terry Wall, the vice-president of Red Coleman, that after doing a brief visual examination of the scene, she was unsure of the cause of the fire. She told him to check the store safe to see if anything was missing. Wall had to wait to open the safe until he got the key from appellant and the safe could be connected to electricity. Wall called Osborn to tell her that when he opened the safe, he discovered "a few bills and odds and ends, phone cards . . . that had been burned inside the safe." Upon further investigation, Osborn determined that there were "three separate fires" that "did not have any connection with each other." Osborn testified she did not believe any of the fires were electrical in origin. The sample she took from the sink near the back of the store came back positive for gasoline. David Spence, the supervisor of the Trace Evidence Unit at the Southwestern Institute of Forensic Sciences, testified that a former employee, James Adams, tested the sample Osborn took from the sink. He detected traces of gasoline on the sink debris. Spence testified that gasoline was a flammable liquid and accelerant. Ghezzai Medhanie testified he is the supervisor of the Red Coleman store. On the night of the fire, he received a phone call from the alarm company telling him there was a fire next door to the store. About ten or fifteen minutes later, appellant called Medhanie and told him the store was on fire. Appellant said someone had called him at home and told him. When Medhanie arrived, appellant was already there. According to Medhanie, no one had broken into the store because the fireman had to cut the padlocks on the door to get in. The next day, he arrived at the store around 7:15 a.m. Appellant and Wall were there. Later that afternoon, Wall and Medhanie attempted to open the safe. Because appellant had the only key to the safe, they had to call him to come back to the store. When they opened the safe, they saw burned papers and little cash. They immediately called the police. According to Medhanie, the safe should have had $13,593.14 in cash. Instead, it contained $607.06. Medhanie also testified that between 11:57 p.m. and 12:05 a.m. that night, over $3,300 in money orders were sold according to the register tape found in the trash. Medhanie said the register tape should have been in the safe with the money. Wall, vice president and general manager of Red Coleman, testified he arrived at the store the morning after the fire. He was present when the safe was opened. Although he did not have a key to the safe, appellant did. The safe contained little money, some of which was burned. When he asked appellant what happened to the money, appellant said he did not know. Wall discovered the register tapes in the trash. He testified the tapes should have stayed on the roll and kept for the company's records. Wall also testified that there was something funny with the money orders. For days, there had been "a bunch of money orders made out to Red Coleman's — just Red Coleman's 59, and were put into the deposit every day. Every morning they were in this deposit which this is not a common thing." Wall testified that a store should never issue a money order to itself. Each money order was for $300, the maximum money order the store could issue. Wall contacted the bank and Travelers Express, the company who issued the money orders to the stores, to request copies of the money orders. He examined the money orders dated October 6, 2001, the day before the fire. The deposit for that day was $6000 short. The money orders issued that day did not show the name or address of the purchaser. Wall explained that a person buying a money order typically lists the recipient's name as well as the sender's own name and address. Wall then looked at the history of deposits for the store and discovered that, in each record he examined, the cash amount deposited was always short by "thousands of dollars." Wall concluded that someone was taking money out of the day's deposit and replacing it with money orders. According to Wall, appellant was responsible for the deposits and was the only person with a key to the safe. Viewed in the light most favorable to the judgment, the evidence shows appellant went to Red Coleman 59 around 11:55 p.m. on October 7, 2001, unlocked the front door, and went to the cash register. He told Ward to stock items in the back and Helen to go home. Ward did not see what appellant did the entire time he was near the register and safe. Numerous money orders were issued between 11:57 p.m. and 12:05 a.m., at a time when no customers were in the store. Appellant then told Ward to set the alarm and leave. Shortly thereafter, police discovered the store in flames. The following day, the safe was opened and over $13,000 was missing. The safe contained burned bills and papers. Appellant was the only person with a key to the safe. Wall examined deposits from the store and discovered thousands of dollars in money orders had been deposited, made out to Red Coleman 59, over the previous weeks. None of the money orders showed who purchased the money order, and it was against store policy to make money orders payable to the store. From these facts, we conclude a rational factfinder could conclude appellant committed theft by unlawfully appropriating property (i.e., money) with intent to deprive the owner of property and that he committed arson by starting a fire with intent to destroy or damage the Red Coleman building in Dallas. After viewing the evidence in the light most favorable to the verdict, we conclude the evidence is legally sufficient to support appellant's convictions for theft and arson. We overrule appellant's second and third points of error.Admission of Hearsay Evidence
In his first point of error, appellant claims the trial judge erred in admitting the State's exhibit number one. Appellant argues the State failed to lay the proper predicate for admitting the business record and, therefore, the evidence should not have been admitted. We disagree. We review a trial judge's decision to admit or exclude evidence under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App. 2001); Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). Absent an abuse of discretion, we do not disturb a trial judge's ruling on the admissibility of evidence. See Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App. 1994). Hearsay is a statement, other than one made by the declarant while testifying at trial, that is offered to prove the truth of the matter asserted. See Tex. R. Evid. 801(d); Bell v. State, 877 S.W.2d 21, 24 (Tex. App.-Dallas 1994, pet. ref'd). Hearsay is not admissible except as provided by statute or the rules of evidence or other rules prescribed pursuant to statutory authority. Tex. R. Evid. 802. Rule 803(6) provides that a statement is not excluded by the hearsay rule if it is:[a] memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, . . .Tex. R. Evid. 803(6) (emphasis added). The State called Terry Hardin, an evidence specialist with Unified Investigations and Sciences, Inc. (UIS). Hardin testified his job is to control access to evidence, collect evidence for the company's investigators, and set up third-party examinations of evidence. Hardin testified that, in each of UIS's cases, an investigator is assigned to the case and is in charge of investigating the scene of the crime. After concluding the investigation, the investigator uses his work product workbook, developed during the investigation, to determine the origin and cause of the occurrence. Thereafter, the investigator generates a report of his findings. Each report is assigned a specific UIS file number. In generating the report, the investigator relies on his notes that were made during the investigation. The notes and documentation on the reports are made at or sometime near the time the events occurred, and the reports are kept as part of UIS's daily records in Hardin's care and custody at UIS. Hardin testified that he did not conduct the arson investigation in this case; rather, a former employee, Timothy Hughes, was the investigator. The report the State offered into evidence was Hughes's investigation report. Following this testimony, appellant took Hardin on voir dire. During cross-examination, Hardin testified he had not visited the premises where the fire occurred and had not interviewed any of the people who participated in the investigation. He agreed that he had not talked to the police involved in the investigation or to appellant, Wall, or Ward. He also agreed when appellant asked if the person who had done so was Hughes. Appellant then objected that the document was "hearsay, not sufficiently reliable to be admitted as a business record." The judge overruled his objection and admitted the document. Although appellant assigns this ruling as error, we cannot agree. Hardin's testimony, during both direct and cross-examination, established (i) he was the custodian of the records at UIS, (ii) Hughes was the investigator assigned to the arson investigation in this case, (iii) Hughes spoke to the witnesses, police, and appellant regarding the fire, (iv) Hughes prepared an investigation report at or near the time of the investigation, (v) UIS investigators routinely made reports following their investigations, and (vi) UIS kept the reports in the course of its regular business. This testimony shows that the State adequately laid the predicate to allow the report to be admitted under rule 803(6), the business records exception to the hearsay rule. See King v. State, 953 S.W.2d 266, 270 (Tex.Crim. App. 1997) (holding testimony by motel owner sufficiency met predicate requirements of rule 803(6) even though motel owner conceded "he did not know specifically who filled out the portion of the registration card bearing appellant's name" when testimony also showed "(1) he owned the motel; (2) that the registration card was a standard form; (3) the forms are filled out — the top portion by the guest and the bottom portion by a motel employee — simultaneously with check-in; (4) he maintained the forms in the regular course of business; and (5) he is the custodian of the forms."); In re J.G., 112 S.W.3d 256, 262 (Tex. App.-Corpus Christi 2003, no pet.) (holding attendance records properly admitted in light of principal's testimony she was custodian of school records and that records were made at or near time of incidents that occurred and were made by someone with personal knowledge of event); Davis v. State, 104 S.W.3d 177, 179 (Tex. App.-Waco 2003, no pet.) (same); Reyes v. State, 48 S.W.3d 917, 921 (Tex. App.-Ft. Worth 2001, no pet.) (stating predicate witness does not have to be record's creator or have personal knowledge of contents of record; rather, witness need only have personal knowledge of manner in which records were prepared). Therefore, the trial judge did not abuse her discretion in admitting the record. We overrule appellant's first point.