Summary
In Noor, there was sufficient evidence to demonstrate that the defendant acted in a continuous course of conduct because each complainant testified that the defendant had contacted them through a third party, the defendant personally offered to sell them discounted merchandise, and the defendant only accepted cash payment.
Summary of this case from Agbeze v. StateOpinion
No. 01-02-01148-CR.
Opinion Issued April 8, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 182nd District Court, Harris County, Texas, Trial Court Cause No. 872281.
Panel consists of Justices TAFT, HANKS, and HIGLEY.
MEMORANDUM OPINION
A jury found appellant, Mumtaz Noor, guilty of aggregated theft of more than $100,000 but less than $200,000 and assessed punishment at confinement for seven years. On appeal, appellant contends the evidence was legally and factually insufficient to convict him of aggregated theft because it failed to show that (1) appellant appropriated money pursuant to one scheme or continuing course of conduct, or (2) the individual thefts constituted one crime. We affirm.
FACTS
Between April 29, 2000 and January 19, 2001, Mohammeed Asif Bawani, Sadru Noor Din, Tanveer Nasir Moosa, and Rahim Ali, complainants, were separately introduced through third parties to appellant. Appellant engaged in individual business negotiations with each of the four complainants, offering to sell them groceries and merchandise acquired from a grocery store that was closing down. Appellant agreed to sell the goods at a discount if payment was made in cash. After complainants accepted appellant's offer, appellant arranged for each complainant to meet him in front of a predetermined hotel or shopping center to complete the transaction. At the given location, appellant met with the individual complainant, received the specified amount of money, and asked the complainant to wait while he retrieved the merchandise. With each complainant, appellant walked into the hotel or shopping center with complainant's money and never returned. The transactions consisted of individual transferred amounts of $27,000, $30,000, $27,000 and $27,000, respectively. Each complainant reported the thefts to the police, provided a statement, and identified appellant from a police photo spread.SUFFICIENCY OF EVIDENCE
Appellant contends that the evidence was legally and factually insufficient to convict him of aggravated theft because it failed to show that (1) he appropriated money over $100,000 pursuant to one scheme or continuing course of conduct or (2) the individual thefts constituted one crime.A. Standard of Review
A legal sufficiency challenge requires us to determine whether, after viewing the evidence in light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Howley v. State, 943 S.W.2d 152, 155 (Tex. App.-Houston [1st Dist.] 1997, no pet.). We note that, as the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given to their testimony, the jury may believe or disbelieve all or any part of a witness's testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim.App. 1981) (stating that "a jury is entitled to accept one version of the facts and reject another or reject any of a witness's testimony"). In a factual sufficiency review, we examine all of the evidence neutrally and ask whether proof of guilt is so obviously weak as to undermine confidence in the jury's determination or so greatly outweighed by contrary proof as to indicate that a manifest injustice has occurred. See Zuliani v. State, 97 S.W.3d 589, 593-94 (Tex.Crim.App. 2003); King v. State, 29 S.W.3d 556, 563 (Tex.Crim.App. 2000). We must avoid substituting our judgment for that of the fact finder. King, 29 S.W.3d at 563. The fact finder is the sole judge of the weight and credibility of witness's testimony. Johnson, 23 S.W.3d at 7. In our review, we must consider the most important evidence that the appellant claims undermines the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).B. Aggregated Theft
Theft is defined as the appropriation of property, including money, with the intent to deprive the owner of the property and without the owner's effective consent. Tex. Penal Code Ann. § 31.03(a), (b)(1) (Vernon Supp. 2004). Consent is not effective if induced by deception. Tex. Penal Code Ann. § 31.01(3)(A) (Vernon Supp. 2004); Ellis v. State, 877 S.W.2d 380, 382 (Tex. App.-Houston [1st Dist.] 1994, writ ref'd). Deception can be creating a false impression or promising performance that is likely to affect the judgment of another in the transaction and that the actor does not intend to perform or knows will not be performed. Tex. Penal Code Ann. § 31.01(1)(A), (E). When the State shows that a defendant has committed multiple thefts over a period of time, the thefts may be considered one crime for punishment purposes if the State can also show that they were committed pursuant to one scheme or continuing course of conduct. Tex. Penal Code Ann. § 31.09 (Vernon 2003); Cupit v. State, 122 S.W.3d 243, 247 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd). Specifically, section 31.09 provides as follows:When amounts are obtained in violation of this chapter pursuant to one scheme or continuing course of conduct, whether from the same or several sources, the conduct may be considered as one offense and the amounts aggregated in determining the grade of the offense.Tex. Penal Code Ann. § 31.09. When section 31.09 is applicable, the aggregated theft is a single offense, with each individual theft constituting an element of the single offense of aggregated theft. Dickens v. State, 981 S.W.2d 186, 188 (Tex.Crim.App. 1998).