Opinion
No. 05-03-00756-CR
Opinion issued July 16, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F02-32349-NL. Affirmed as reformed.
Before Justices MOSELEY, BRIDGES, and LANG-MIERS.
OPINION
Marcelino Barnebas Rico appeals his theft conviction. The trial court convicted appellant and sentenced him to two years' confinement and a $1000 fine. In two issues, appellant argues the evidence is legally and factually insufficient to support his conviction. As reformed, we affirm the trial court's judgment. On September 21, 2002, Jorge Rios' 1990 Honda Accord was stolen. In November 2002, Grand Prairie police officer Alberto Martinez was called to a residence in Dallas county where three men were stripping a car in the back yard. Appellant, one of the men, identified himself as Eddie Rico and gave a birthdate that would have indicated he was thirty-four years old. However, when asked his age, appellant said he was thirty-two. Martinez determined appellant was giving conflicting information concerning his identity and arrested him for failure to identify himself. As Martinez led appellant to the patrol car, appellant asked if he could leave his keys at the house for someone to pick up his car, which was parked out front. Grand Prairie police officer Mitch Zempruch was called to the scene to investigate. Zempruch determined the car parked in front of the house was Rios' stolen Honda. Appellant was charged with theft and convicted, and this appeal followed. In two issues, appellant challenges the legal and factual sufficiency of the evidence supporting his conviction. When we review the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). In reviewing the factual sufficiency of the evidence, we are to view all of the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). We must determine whether a neutral review of all the evidence, both supporting and against the finding, demonstrates that the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, 2004 WL 840786 at *7 (Tex.Crim.App. April 21, 2004). Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also insufficient when contrary evidence is so strong that the beyond-a-reasonable doubt standard could not have been met. Id. The fact finder is entitled to judge the credibility of the witnesses and may choose to believe all, some or none of the testimony presented. Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1999). A person commits theft if he unlawfully appropriates property with the intent to deprive the owner of the property Tex. Pen. Code Ann. § 31.03(a) (Vernon Supp. 2004). "Appropriate" means to acquire or otherwise exercise control over property. Id. § 31.01(4)(B). Appropriation of property is unlawful if it is without the owner's effective consent or if the property is stolen and the actor appropriates it knowing it was stolen. Id. § 31.03(b). Participation in the initial acquisition of the property is not an element of the offense of theft. McClain v. State, 687 S.W.2d 350, 352-53 (Tex.Crim.App. 1985). Here, the evidence showed appellant was one of three men found stripping a car in the backyard of a residence. Appellant stated his car was parked in front of the residence. However, Zempruch determined the car in front of the residence was Rios' stolen Honda. The Honda's ignition had been modified so the car could be started without a key. Zempruch found the plate bearing the vehicle identification number (VIN) was not attached in the normal manner, and the VIN on the plate did not match the VIN on the Honda's firewall. Thus, although the VIN on the plate indicated the car belonged to appellant's brother, Marcelino Ernest Rico, the actual VIN on the firewall identified the Honda as belonging to Rios. An additional sticker containing vehicle identification numbers had also been removed from the door area. We conclude this evidence is legally and factually sufficient to show appellant appropriated Rios' Honda without Rios' consent and with intent to deprive Rios of the property.Tex. Pen. Code Ann. § 31.03(a) (Vernon Supp. 2004); King, 29 S.W.3d at 562; Zuniga, 2004 WL 840786 at *7. We overrule appellant's first and second issues. In a single cross-point, the State argues the trial court's judgment should be reformed to reflect the trial court's imposition of a $1000 fine. Although the trial court assessed a $1000 fine in open court at the time of sentencing, the written judgment does not reflect the imposition of the fine. Therefore, this Court should reform the trial court's judgment to include the fine. See Tamez v. State, 620 S.W.2d 586, 590 (Tex.Crim.App. 1981); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd). We sustain the State's cross-point. Accordingly, we reform the trial court's judgment to reflect a $1000 fine imposed against appellant. As reformed, we affirm the trial court's judgment.