Opinion
No. 05-08-01198-CR
Opinion issued September 10, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 380th Judicial District Court, Collin County, Texas, Trial Court Cause No. 380-82405-07.
Before Justices MORRIS, RICHTER, and LANG-MIERS.
OPINION
A jury convicted Mumar Asad Sayyed of theft of at least $20,000 but less than $100,000. Appellant, representing himself on appeal, now challenges the conviction in nineteen points of error. Concluding appellant's arguments are without merit, we affirm the trial court's judgment.
Factual Background
At nearly midnight, a Farmer's Branch police officer responded to a business alarm indicating a possible burglary at Stark Carpets in Dallas County, Texas. At the location, the officer found that a window in the back of the building had been pushed in or forced open. The officer called for a backup officer, then the two explored the location. When it appeared that items may have been stolen from the store, the officer requested that a police dispatcher contact an employee of the store to evaluate the scene. Priscilla Cronin, the store manager, arrived. She told the officers that when she left the store at 6:00 p.m. that day, everything was intact and there were no unsecured areas that would have allowed an intruder to enter the store. Cronin was able to determine that two computers had been taken from the store. She made plans to do a full inventory of the store's rugs and stated that she would call back if she found that other items were also missing. She blocked the broken window with two large pallets. She and the officers then left the store. To be sure the store was secure, the officer returned to check on it three other times in the early morning hours. At 5:45 in the morning, the officer saw the window had again been pushed open. Cronin returned to the store. At that time, she determined that another computer had been taken and a control box for a DVR that recorded the store's video surveillance had also been taken. A DVD of the surveillance of Stark Carpets from the night of the offense was admitted into evidence. The DVD shows a person trying to push in the window. A light colored van is also visible on the DVD. The person goes back and forth from the van. The person at the window is much heavier than appellant. It appears, however, that there is at least one more person present, probably the driver of the van. The date and time noted on the DVD is 4/28/07, 12:30 p.m., but it is obvious from the images that the recording was made at nighttime rather than daytime. Ali Pamenari testified that he was employed by the Stark Carpet Company as a sales representative at the time of the burglary. He has been in the business of selling rugs for twenty years. According to Pamenari, the Farmers Branch police department initially contacted him after the first burglary; he instructed the department to contact Cronin because she was the manager. Pamenari stated that the day after the burglary employees of the store conducted a full inventory of the store and discovered four rugs missing. Three of the rugs were Peshawar rugs from Pakistan, and the fourth was an extremely valuable Isfahan rug from Iran. The Isfahan rug was handmade and one-of-a-kind. It contained the signature of the rug's designer plus the date the rug was finished. According to Pamenari, due to the rug's quality, it weighed only approximately forty pounds and could be carried by one man. Pamenari testified that the retail value of the rug was between $130,000 and $150,000 and the net sales price of the rug was approximately $50,000. The Peshawar rugs were worth approximately $6,000 to $7,000 each. They each weighed between sixty-five and seventy pounds. In addition, four computers and scanners used for rug inventory were missing. Pamenari stated that each stolen scanner and docking station for the scanner was worth between $200 and $800. After the burglary, Pamenari contacted ten to fifteen oriental rug dealers in the Dallas Metroplex and gave them details of the stolen Isfahar rug. Two to three days later, a rug dealer in Frisco, Texas called Pamenari to say a Middle Eastern looking man driving a gold van had come by the Frisco store trying to sell the Isfahan rug. The next day, Ben Tavakolian, a carpet dealer at Benham Oriental Rug in Collin County, Texas called to say that a Middle Eastern man calling himself Mark had brought a large Isfahan rug to the store in his van and tried to sell it to him. According to Tavakolian, appellant came into his store and asked to speak to the owner. He told Tavakolian his name was Mark Master. He said his family was in the carpet business and, because his father had passed away, he was trying to salvage their rugs. Appellant showed Tavakolian the Isfahan rug, indicating to him that he knew it was valuable. Tavakolian could see that it was the Isfahan rug stolen from Stark Carpets. Appellant told Tavakolian he had received an offer of approximately $30,000 for the carpet, "but it was not enough for him." Tavakolian told appellant he did not wish to buy the carpet but he had a prospective buyer for it. Appellant allowed him to photograph the rug. Appellant then gave Tavakolian his phone number. Appellant was driving a Ford minivan in a "beigey gold color." One of Tavakolian's employees wrote down the van's license plate number as 970 JNH. After appellant left, Tavakolian got in contact with Pamenari, e-mailing photos of the rug to Pamenari. Pamenari confirmed that the rug was Stark's missing Isfahar rug, and he contacted Farmers Branch police. Tavakolian estimated the value of the rug to be over $100,000. The next day, following police requests, Tavakolian called appellant to tell him he had a potential buyer who wanted to see the rugs appellant had. Appellant agreed to come by the store with the rugs at approximately 4:00 that afternoon. Police arrived at the scene in advance, and Priscilla Cronin and a Farmers Branch plain-clothes detective waited inside the store to pose as the potential buyer and her companion. When appellant walked into the store, Tavakolian introduced Cronin as the potential buyer, and appellant went outside to get a rug to bring inside. Tavakolian asked appellant if he needed help bringing the rug inside, and appellant said that he had "brought his own help." As appellant left the store to retrieve the rug he hoped to sell, he saw an officer with a police raid jacket making contact with people near a gold minivan. Another officer, with his gun drawn, approached appellant and told him to put his hands up. Appellant immediately began to flee from the scene. He ignored the officer's cries of "Stop, police" and ran through the parking lot and across a road with dangerous traffic. Eventually, the officer stopped appellant at a restaurant across the road from the store. Uniformed officers arrived at the scene and took appellant to jail. While appellant was inside Benham Oriental Rugs, officers had approached a gold Ford Winstar minivan, with a license place of 970 JHN, in the store's parking lot. They found two teenagers inside it; neither was sitting in the van's driver's seat. The young men in the van were accompanied by three teenagers in a car parked next to the van. Each of the teenage boys told police they had been hired by appellant to help move the rugs in the van. Inside the van, officers found the missing rugs, plus scanners and scanner docking stations. In addition, after appellant's arrest, an officer found a pair of jeans in the van. Inside one of the pockets of the jeans, the officer found appellant's driver's license. An officer who observed the video of the break-in at Stark Carpets testified that, on a scale of one-to-ten, his certainty was 9.9 that the van involved in the Stark Carpets burglary was the same van at the scene of the attempted sale of the rug. One of the teenagers questioned at the scene testified against appellant at trial. The young man, Christian Womack, stated that he had worked with appellant at Surplus Floors. According to Womack, appellant called him on the day of the arrest saying he would pay Womack and his friends each one hundred dollars if they would help him unload some rugs. He did not tell Womack where he got the rugs, and Womack did not know the rugs were stolen. Appellant drove two of the teenagers to the scene in a minivan, and Womack drove the others in his car. Womack testified that appellant had always called himself "Mark" or "Jesus" in his presence. On cross-examination by appellant, Womack testified that appellant was involved in taking methamphetamine and cocaine. During a significant portion of the trial, appellant represented himself with an attorney nearby to advise him. When he cross-examined Pamenari, appellant asked him whether he had "a greater right to these rugs" than appellant on the date they were recovered. Pamenari responded "no." The trial judge commented, "Say, wait a minute," and Pamenari said he did not understand the question. The trial judge then told appellant to "ask him so he can understand it." Pamenari admitted he was not the owner of Stark Carpet or the stolen rugs. When appellant and the trial judge together asked Pamenari if he had a greater right to possession of the rugs than appellant on the day they were recovered, Pamenari said he did. Appellant then asked, "Why would you have the right to the possession of these rugs if they did not belong to you?" The trial judge instructed, "That is not a relevant question. Ask another question."Discussion
Appellant's complaints on appeal fall into different categories. We will therefore address the complaints by their categories, rather than in chronological order. We first address appellant's arguments alleging that the evidence against him is legally insufficient to support his conviction. In assessing the legal sufficiency of the evidence to support a criminal conviction, we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, 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, 318-19 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.). In his first two points of error, appellant complains about the value of the property stolen. He first argues that there is a material variance between the value alleged in the indictment and the value proved at trial. Next, appellant complains the State failed to prove the "essential element of value." He contends that proof at trial shows the value of the stolen property exceeded $100,000, so he therefore could not be convicted of the charged offense, which alleged that the value of the property was $20,000 or more but less than $100,000. An indictment's allegation of value is determinative only of the offense's classification as a felony or misdemeanor. See Sowders v. State, 693 S.W.2d 448, 450 (Tex. Crim. App. 1985). The State must simply prove that the amount stolen satisfies the jurisdictional requirement of the State's pleading. See id. Accordingly, the proof in this case of the value of the stolen property supported conviction for the charged third degree offense, but it did not permit conviction for a second degree offense. See Nitcholas v. State, 524 S.W.2d 689, 691 n. 1 (Tex. Crim. App. 1975). Appellant's complaint does not show the evidence against him is legally insufficient. We overrule his first two points of error. In appellant's fourth point of error, he complains the State failed to prove Ali Pamenari was the owner, acting on behalf of Stark Carpets, of the stolen items. As an employee of Stark Carpets, Pamenari had a greater right to possess the store's property than did appellant. See Deloney v. State, 734 S.W.2d 6, 10 (Tex. App.-Dallas 1987, pet. ref'd). The evidence is sufficient on this matter, and we therefore overrule appellant's fourth point of error. In his fifth point of error, he complains the evidence is legally insufficient to prove he knew the property in his possession was stolen. Appellant possessed the rugs a week after they were stolen. He drove them to the proposed sale in a van that most likely was also used in the original burglary. He lied to Tavakolian about how he came to possess the Isfahan rug, and the record contains no explanation for how he came to possess the scanners or scanner docking stations. Finally, when police approached appellant as he attempted to sell the Isfahan rug, he fled the scene, crossing through heavy traffic on a city street. Moreover, the jury was equally entitled to convict appellant if it unanimously believed that appellant committed the initial theft offense. We conclude the evidence is sufficient on this matter. We overrule appellant's fifth point of error. In his seventh and fourteenth points of error, appellant complains the evidence is legally insufficient to prove he was in "exclusive personal possession" of the stolen property. He contends that he did not personally possess the rugs when police finally caught him after his flight from the scene. Nevertheless, it was appellant who had offered the Isfahan rug for sale to Tavakolian. He drove the van to the scene and offered the teenagers money to move carpets for him. And the van that held the Isfahan carpet also contained jeans with appellant's driver's license in them. The jury was instructed on how the law of parties applied to the case. We conclude the evidence is sufficient on this matter. We overrule appellant's seventh and fourteenth points of error. Appellant raises a due process issue in his eleventh point of error, which we interpret as a challenge to the legal sufficiency of the evidence. See Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). He first complains that the value of the stolen property exceeded the $100,000 amount alleged in the indictment. We have already concluded this argument is meritless. He further complains there was variance between the owner of the property alleged in the indictment and the owner proved at trial. Appellant raises this same complaint in his third and nineteenth points of error, so we will address them now as well. Priscilla Cronin was originally alleged in the indictment as the stolen property's owner, but the indictment was amended before trial to change the name of the owner to Ali Pamenari. Appellant argues in these points of error that the indictment was not amended properly and therefore, based on the original indictment, there was a material variance between the owner of the stolen property as alleged in the indictment and the owner proved at trial. We will address his complaint about the amendment of the indictment more directly later in the opinion. His argument in this context is immaterial. Testimony in the case showed that both Cronin and Pamenari had greater rights to possess the items than did appellant. The evidence is legally sufficient on these matters. We overrule appellant's third, eleventh, and nineteenth points of error. In his thirteenth point of error, appellant complains the State failed to prove he committed both theft and receiving stolen property beyond a reasonable doubt. He contends the two offenses contradict one another, so he could not have both stolen the property and received the stolen property from himself. When alternate theories of committing the same offense are alleged in the conjunctive in the indictment, "it is proper for the jury to be charged in the disjunctive." Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991). The jury in appellant's case had to decide unanimously which form of theft appellant had committed before it convicted him. We conclude the evidence is legally sufficient on this matter. We overrule appellant's thirteenth point of error. Before we conclude our review of the sufficiency of the evidence in appellant's case, we will address his eighth point of error complaining the evidence against him is factually insufficient to prove he was in exclusive personal possession of the stolen property. We have already determined the evidence is legally sufficient on this matter. When considering the factual sufficiency of the evidence, we review the record in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. See Grotti v. State, 273 S.W.3d 273, 283 (Tex. Crim. App. 2008). Evidence may be factually insufficient in one of two ways: (1) when the evidence supporting the verdict is so weak that the verdict seems clearly wrong and manifestly unjust; or (2) when the supporting evidence is outweighed by the great weight and preponderance of the contrary evidence, rendering the verdict clearly wrong and manifestly unjust. Id. Although we may second-guess the jury to a limited degree, our factual-sufficiency review should still be deferential, with a high level of skepticism toward reversal. See id. Appellant argues that he never claimed ownership of the stolen property and was a quarter of a mile away from the van containing the stolen items when he was arrested. He claims he did not own the van and did not have keys to the van. In fact, appellant claimed to own at least the Isfahan rug when he offered it for sale. And his distance from the van containing the rugs and other stolen items was only so great because he fled from police when he saw them near the van in the store's parking lot. Appellant's driver's license was found in the van, and the teenagers at the scene claimed appellant had driven some of the them in the van for the purposes of having them move the rugs for him. We conclude the evidence is factually sufficient. We overrule appellant's eighth point of error. In his sixth point of error, appellant complains the State failed to prove venue in his case. He argues he should have been acquitted because the theft at Stark Carpets occurred in Dallas County rather than in Collin County. Appellant offered the Isfahan rug for sale in Collin County. He drove a van containing the other stolen items as well as the Isfahan rug to the Collin County rug store. Under the venue statute specific to theft, where property is stolen in one county and removed by the offender to another county, the offender may be prosecuted either in the county where he took the property or in any other county through or into which he may have removed it. Id. art. 13.08(a) (Vernon Supp. 2008). Under this statute, venue was proper in Collin County for both of the alleged theft offenses. See Jones v. State, 979 S.W.2d 652, 657 (Tex. Crim. App. 1998). Appellant's complaint is without merit. We overrule his sixth point of error. Appellant's next two points of error relate to his motion to quash the indictment. He complains in his ninth point of error that the indictment should have been quashed because it failed to describe the stolen property sufficiently. In his twelfth point of error, he complains the indictment should have been quashed because the State was permitted to charge him both with the theft offense and the receipt of stolen property offense. Appellant filed his motion to quash the indictment, and the trial court denied the motion, on the morning the jury was selected and sworn in his case. If a defendant does not object to an alleged error in an indictment before the date on which the trial on the merits commences, he waives and forfeits the right to object to the error and may not raise the objection on appeal. See Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005). A motion to quash the indictment filed on the day of trial "is too late." State v. Lohse, 881 S.W.2d 171, 171 (Tex. App.-Houston [1st Dist.] 1994, no pet.). By failing to file his motion before the date the jury was sworn, appellant has waived these complaints on appeal. See Sanchez v. State, 138 S.W.3d 324, 329 (Tex. Crim. App. 2004). We overrule appellant's ninth and twelfth points of error. Appellant's tenth and seventeenth points of error pertain to the jury charge in his case. In point of error ten, he complains the trial court erred in instructing the jury on the law of parties. In his seventeenth point of error, he complains the charge allowed the jury to find him guilty without specifying whether it was finding him guilty of ordinary theft or theft by receiving stolen property. At trial, appellant objected that the indictment had not alleged that he had acted as a party to either of the theft offenses alleged. When evidence at trial is sufficient to support both primary actor and party theories of criminal responsibility, the trial court does not err in including an instruction on the law of parties in the jury charge. See Ranson v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1996). In this case, evidence at trial showed appellant possessed recently stolen items in a van that was remarkably similar to the van used in the original burglary. We cannot conclude the trial court erred in including this instruction in the jury charge. We overrule appellant's tenth point of error. Appellant did not raise an objection at trial to the instruction in the jury charge permitting the jurors to convict him of either theft offense to which they unanimously agreed. Because the indictment charged appellant in the conjunctive with two different manner and means of committing the same theft of the rugs, scanners, and scanner docking stations, the trial court properly charged the jury in the disjunctive that it could convict appellant of either of the two offenses. See Kitchens, 823 S.W.2d at 258. The jury charge further instructed the jurors that they had to be unanimous in choosing which theory of the offense they found appellant had committed. The trial court did not err. We overrule appellant's seventeenth point of error. In his fifteenth point of error, appellant complains his arrest was illegal. He argues that the Farmer's Branch officer who apprehended and arrested him was out of his jurisdiction in Collin County. Appellant never raised this complaint in a motion to suppress or an objection at trial, nor did he attempt to get any ruling from the trial court on the legality of the arrest. Accordingly, he cannot now complain about it on appeal. See Tex. R. App. P. 33.1(a). We overrule appellant's fifteenth point of error. We next address appellant's complaint about the amendment of the indictment. In his sixteenth point of error, appellant complains that when the State was permitted to amend the indictment, he was not given ten days to respond. The State filed a motion to amend the indictment on March 17, 2008, several months before trial. On the date of jury selection, before the jury was sworn, the State re-urged the motion because — although the trial judge recalled that he had previously granted the motion — there was no notation in the record showing the order. The trial court granted the motion at that time, and the indictment was interlineated and amended. Appellant objected to the amendment only on the grounds that the new owner "has absolutely no right to the property." Article 28.10(a) of the code of criminal procedure provides that following the amendment of an indictment, "[o]n the request of the defendant, the court shall allow the defendant not less than 10 days, or a shorter period if requested by the defendant, to respond to the amended indictment or information." Tex. Code Crim. Proc. Ann. art. 28.10(a) (Vernon 2006). Because appellant did not request any time to respond to the amendment, he was not entitled to it. We overrule appellant's sixteenth point of error. In his eighteenth point of error, appellant complains the trial court was biased against him. In addition to participating in the questioning of Pamenari about whether Pamenari had a greater right to the stolen property than appellant, the trial judge also made comments with respect to the progression of the trial and instructed appellant as he attempted to conduct his own defense. In addition, he instructed the jurors about appellant's participation in the trial. After the first witness testified, the judge commented, "Ladies and gentlemen, I think I probably should explain to you, the defendant, under the Constitution of the United States of America, has the right to defend himself. This fellow has elected to defend himself in this case that's why he's asking these questions. So I'm going to ask you to be patient and listen carefully to the answers." Later in the trial, out of the presence of the jury, the judge said to appellant,Mr. Sayyed, you've elected to represent yourself in this case. And I decided — even though your attorney wanted to get out, you were ready to let him get out, I decided to keep him in for two reasons. One of them was for your good, because believe me, he can help you. You better listen to every word I say. The second reason is for my good, because he can make this trial go a lot more smoothly.
Let me tell you right now, you're killing yourself in front of this jury. You may think that you're rolling great, right?
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You're killing yourself. Now, if you continue to question all these witnesses yourself and do the same job that you did on the first witness you're going to be in big trouble. Do you understand?Appellant would not agree at that time to allow his attorney to question the State's witnesses because he felt the attorney would not be "thorough enough." When the prosecutor then asked the trial judge if they would be working that day past 5:00, the trial judge stated, "Yeah, I'll tell you what, as slow as he is, I think we better work as long as we can both days, as thorough as he is." When the trial court sustained the State's relevance objection after appellant asked Pamenari if he owned any of the stolen rugs, appellant argued, "Your Honor, if I may, the issue of ownership goes to the core of this case. The State must establish, as the law dictates that this man is the owner, or in the alternative, they need to at least establish that for 100 percent fact that he is —" At that point, the trial judge commented, "Since you brought up the law, let me tell you what the law is. All they have to establish is that he had the greater right to that rug than you did. That's all they have to establish and that is the law." On several occasions, the trial judge had to admonish appellant to save argument for the closing of evidence rather than for his cross-examination of witnesses. Appellant requested one hour to make his closing argument. The trial judge compromised and gave each side twenty-five minutes. At the conclusion of the proceedings, when appellant's attorney asked if he could be excused, the trial judge said, "Yes. Thank you very much. I know it was an ordeal." At no time during the proceedings did appellant ever object that the trial judge was biased against him. It is clear from the record the trial judge wanted to protect appellant's right to conduct his own defense but at the same time was concerned that appellant was doing damage to his case, confusing the jurors on the law applicable to the case, and getting the opportunity to insinuate his version of events into the proceedings without taking the stand as a witness until the punishment phase of trial. After reviewing the entire record, we conclude appellant waived his right to complain of any bias by the trial judge by failing to raise an objection at trial. See Blue v. State, 41 S.W.3d 129, 131(Tex. Crim. App. 2000). We overrule appellant's eighteenth point of error. We affirm the trial court's judgment.