Opinion
No. 05-02-00981-CR
Opinion issued August 12, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 380th Judicial District Court, Collin County, Texas, Trial Court Cause No. 380-81526-01. AFFIRMED
Before Justices MORRIS, WRIGHT, and MOSELEY.
OPINION
In this case, David Ralph Selver appeals his conviction for theft of property. He contends in two points of error that the evidence against him is legally and factually insufficient and that he was deprived of his right to a jury trial. We affirm the trial court's judgment.
Factual Background
On July 16, 2000, appellant reported to the Dallas Police Department that a man had robbed him of his car. He claimed that he was in a McDonald's parking lot in Dallas at approximately 10:30 that morning when the robbery occurred. He also claimed there were no witnesses to the robbery. That same day, appellant filed a claim with his insurance company. The insurance company issued two checks to appellant to settle his claim and paid $32,363.68 to Ford Motor Credit Company to pay off the car. The second of the two checks to appellant was issued on August 10, 2000. On July 19, 2000 the car was recovered by the Plano Police Department a few blocks from appellant's home. The officer who found the car testified that when he examined it, the car was locked and had sustained no visible damage. The car was then towed to an auto pound. On August 9, 2000, appellant picked up the car from the pound. Appellant did not tell the manager of the auto pound that he had filed an insurance claim on the car. When the insurance company tried to transfer the car's title in the fall of 2000, the transfer would not go through. An investigation revealed that the car was not listed as stolen according to the State of Texas's files. Jeff Lay, an investigator for the insurance company, then learned that the Plano Police Department had recovered the car. He also learned that an auto pound had released the car to appellant before the insurance company had begun the title transfer. Lay photographed the car on August 21, 2001. He did not observe any VCRs or TVs (or devices allowing for the placement of VCRs or TVs) in the car, and none are visible in the photographs, which were admitted into evidence. The total loss adjuster for the insurance company who alone handled appellant's claim testified that appellant told her there were two TV screens in the back of the car's headrests. The valuation of the car was increased based on this information. Appellant never told the total loss adjuster that he had recovered the car, nor did anyone else inform her the car had been found. On August 10, 2000, appellant visited the adjuster's office to drop off two power-of-attorney forms. Appellant could not receive his final payment for the car without submitting these signed forms, which would allow the insurance company to transfer the car's title. The signed forms, which were admitted into evidence, are not dated. The adjuster testified she had told appellant he had to let her know if the car was recovered. Appellant attempted to renew the car's registration on August 2, 2001. He drove the car to the Plano Police Department to discuss his difficulties with the renewal. He told an officer there that he had filed a claim with the insurance company for the car and received a check. He also told the officer that the insurance company wanted the car back, but he claimed the dispute was a "civil matter" that did not require police investigation. The officer arrested appellant at that time. After appellant's arrest, he spoke to another officer in the process of complaining about how his arrest had been handled. He told that officer that he did not think the insurance company had given him enough money for the car so he decided to keep it. In his defense, appellant called Janice Ames, a former employee of the insurance company, to testify on his behalf. Ames testified that she thought she remembered signing for hand delivery of a letter. She confirmed her signature was on a document titled "copy of return receipt hand delivered" from appellant to the adjuster that was dated September 21, 2000. She stated that she had not read the letter. According to Ames, if she had signed for a letter, she would have told the adjuster handling appellant's case to pick up the letter and would have held it until that adjuster got it. When asked if she remembered "this whole episode," Ames replied, "Not particularly." Appellant also called an owner of an auto repair shop to testify in his defense. The shop owner said he was acquainted with appellant because he is a "good customer." According to the shop owner, when the complained-of car was towed to his shop after appellant took it from the pound, the car was a mess, some wires were hanging out of the dash, and the two front tires were worn. The shop owner claimed he called the insurance adjuster to see if the insurance company would pay for the work to the car, but no one from the insurance company ever returned his calls. Ultimately, the shop owner claimed, he released the car to appellant after he settled the bill. The shop owner claimed he faxed the insurance company a letter detailing appellant's bill, but the letter he brought to court showed that it had been faxed to appellant. The shop owner claimed he had another copy that had been faxed to the insurance company at the shop, but this copy was never offered into evidence. The date on the letter is August 9, 2001, seven days after appellant was arrested and jailed. Nevertheless, the shop owner claimed he faxed the letter before he released the car to appellant. In addition, the shop owner testified that the car was parked in his parking lot for almost a year but he did not charge appellant storage fees. According to the shop owner, appellant never drove the car until August, 2001. The shop owner admitted appellant had told him the car belonged to the insurance company. He had no records from when the car appeared in his lot or when appellant picked up the car. He testified that there was never a mechanic's lien on the car. Appellant also testified in his defense. In his opinion, the car was his when he picked it up from the pound and is his now. According to him, he was "still in negotiations" over the car. He admitted that the loan for the car had been paid off by the insurance company. He intended to buy the car back from the insurance company once they settled on a fair value for it. Appellant introduced into evidence a letter from him to the insurance company dated July 2, 2001. He claimed he faxed the letter before he picked up the car from the shop. A fax confirmation slip attached to the letter indicates that it was received at the insurance company's fax number. The letter, however, contains no notation to confirm it was the document actually faxed by appellant. The letter states that the insurance company has failed to respond to "any phone calls, letters, or faxes." It goes on to state, "I now consider this vehicle to be abandoned, by the end of August I will be renewing my tag and I will claim the vehicle under abandonment." Appellant also claims in the letter that the auto shop had tried to "place a mechanical lein [sic] against the vehicle." Appellant admitted at trial, however, there was no mechanic's lien on the car. He claimed he lied about the lien in the letter to get the insurance adjuster's "attention." Additionally, the trial court admitted into evidence a letter from appellant to the insurance adjuster dated August 10, 2000. In that letter, appellant states that the car had been recovered and impounded and requests that the adjuster pay for the damages to the car and increase the car's valuation amount. He admits in the letter that he picked up the car from the pound on August 9, 2000. A fax confirmation with the letter shows that it was received by the insurance company, but the confirmation is titled "Fax History Report for KHALED BIRA." Although appellant had previously been named Yaser Hamzeh Alhemzewi, Usiral Humsi, and Hans Kinner, nothing in the record showed he was also known as Khaled Bira. This letter also contains no notation to confirm it was the document actually received by the insurance company. On September 21, 2000, appellant sent one of his employees to the insurance company's office with another letter. He told the employee, "Do not leave until they sign this piece of paper." The "copy of return receipt hand delivered" was admitted into evidence. On that document, a handwritten space titled "Received by" contains the signature of Janice Ames, the former employee of the insurance company whom appellant called as a witness. In the return receipt, appellant again claims the adjuster has failed to communicate with him. The document states, in part:This letter is to certify the hand delivery of such notice. . . .
This is a confirmed release that you have permission to pick up the vehicle with the key that was furnished with this hand delivered letter you will need. The vehicle is at Adams Central Automotive. . . . You have the only key to the vehicle, along with the remote control. You have known all along that I lived in Tulsa, Ok and you played that so you would not have to finish paying the claim on the vehicle. The vehicle has been used by parties not affiliated with me, and still you have done nothing.Appellant also states in the document that the insurance company still owes him for "the new battery, clean up of the vehicle, the towing charges against the vehicle, and storage fees, which is [sic] now in effect." Ames did not testify that she recalled receiving a key with a hand-delivered letter. Appellant admitted he had previously pleaded guilty to charges of using false information to obtain credit and possession of false identification. He admitted he used the car during 2000 and 2001 and that the employees of his limousine business also used the car when they got "overloaded." Appellant stated that the car originally had two TVs, which were not installed in the headrests. He claimed the first TV was in the back, mounted with brackets on the front and back, and the second was installed on the dashboard. He did not introduce any phone records into evidence to illustrate his contention that he had made numerous unreturned calls to the insurance adjuster.
Discussion
In his first point of error, appellant complains the evidence against him is legally and factually insufficient to support his conviction for theft of property. He specifically complains that he had, in fact, timely notified the insurance company that the car had been recovered and that Jeff Lay could not have been a "special owner" of the car. In a legal sufficiency review, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). In a factual sufficiency review, we determine whether a neutral review of all the evidence demonstrates the proof of guilt is so obviously weak as to undermine confidence in the jury's determination or, although adequate if taken alone, is greatly outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). The trial court, as fact finder in this case, was the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. See Jones v. State, 944 S.W.2d 642, 647-48 (Tex.Crim.App. 1996). The evidence in this case shows that appellant, after receiving payment for his claims with the insurance company and being notified the car had been paid off, continued to use the car for over a year without repurchasing the car from the insurance company. According to the State's witnesses, the insurance company did not learn that the car had been recovered until it began its own investigation. Appellant argues that his August 10, 2000 faxed letter and September 21, 2000 hand- delivered letter show he tried to inform the insurance company about the car's status. The total loss adjuster, however, claimed she never received either letter. We cannot determine from the face of the two letters whether they were actually received by the insurance company. The August 10, 2000 letter contains no notation showing it was actually faxed, aside from the separate confirmation page, and we cannot tell whether the copy of the document Janice Ames testified she signed for actually is a copy of the same letter she apparently took from appellant's employee when he delivered it to her. She testified specifically that she did not read the letter. Appellant argues that the shop owner's letter and multiple phone calls support his claim. But the August 10, 2000 letter introduced into evidence was faxed to appellant, rather than the insurance company, and no proof of the phone calls was offered into evidence. According to the insurance adjuster, appellant personally returned the power-of-attorney forms to her just one day after he recovered the car. Despite this fact, he never informed the adjuster that the car had been found. In the September 21, 2000 letter, appellant claims he is giving the claims adjuster the "only key" to the car. Yet it is undisputed that appellant and his employees persisted in using the car for almost a full year after that date. Witness credibility was obviously crucial to the guilt determination in appellant's case. Deferring to the trial court's credibility determinations, we cannot say that the evidence against appellant was legally or factually insufficient. Appellant separately argues that the evidence is legally and factually sufficient to prove, as alleged by the State in the indictment, that Jeff Lay was the owner of the car. He argues that the State was required to prove Lay was a "special owner" of the car. This is untrue, however. The indictment alleged only that Lay was the car's owner, and appellant did not file a motion to quash or otherwise challenge the indictment. To eliminate the distinctions between general and special owners and to give anyone with a "conceivable connection" to the property status as an owner, the Legislature gave the word "owner" an expansive definition; anyone having a possessory interest in property through title, possession, whether lawful or not, or a greater right to possession of the property is an owner of the property, as the term in defined in the penal code. Freeman v. State, 707 S.W.2d 597, 603 (Tex.Crim.App. 1986). The issue of "ownership" is intended to protect all ownership interests in property from criminal behavior. When there are equal competing possessory interests in property allegedly stolen, the key to determining ownership is which person, at the time of the commission of the offense, had the greater right to possession of the property. Id. Jeff Lay was an employee of the insurance company at the time appellant committed the theft; accordingly, he was the "owner" of the car — at least as compared to appellant — for purposes of the theft statute. See Deloney v. State, 734 S.W.2d 6, 10 (Tex.App.-Dallas 1987, pet. ref'd). The evidence is legally and factually sufficient on this matter. We overrule appellant's first point of error. In his second point of error, appellant complains that he was deprived of his constitutional and statutory right to a jury trial. The Sixth Amendment to the United States Constitution and Article I, Section 10 of the Texas Constitution guarantee an accused the right to a jury trial. U.S. Const. amend. VI; Tex. Const. art. I, § 10. Texas code of Criminal Procedure article 1.12 states that this right "shall remain inviolate." Tex. Code Crim. Proc. Ann. art. 1.12 (Vernon 1977). Article 1.13 of the code states that a defendant may waive the right "conditioned, however, that such waiver must be made in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the State." Id. art. 1.13(a) (Vernon Supp. 2003). The judgment in appellant's case states the following, in pertinent part:. . . The defendant in person and in writing in open court having waived his right of trial by jury, such waiver being with the consent and approval of the court and now entered of record on the minutes of the court and such waiver being with the consent and approval of the Criminal District Attorney of Collin County, Texas, in writing, signed by him, and filed in the papers of this cause before the defendant entered his plea herein. . . .No written jury waiver form, however, was ever submitted to the county clerk for filing. The trial court's docket shows that the case was scheduled two times for a jury trial but was eventually scheduled for a trial before the court on the date appellant was actually tried. Two pass slips in the record, one of which is signed by appellant, set the case for a jury trial. But the pass slip that set the case for the eventual date of trial set it for a trial before the court. That pass slip is not signed by appellant. The record also contains a letter from appellant to the trial judge requesting a trial "as soon as possible." The letter states that appellant wants to go to trial "in front of a judge or jury it doesn't matter." Finally, just before the witnesses were sworn in the case, the following exchange occurred:
THE COURT: Did you-all sign the jury charge waiver?
[DEFENSE COUNSEL]: We did.
[PROSECUTOR]: Yes. . . .Appellant now complains that he was denied his constitutional and statutory right to be tried by a jury. Neither the federal nor the state constitution require that a defendant waive his right to a jury trial in writing. Ex parte Sadberry, 864 S.W.2d 541, 543 (Tex.Crim.App. 1993). In this case, the judgment reflects that appellant knew of his right to a jury trial and waived it. See Johnson v. State, 72 S.W.3d 346, 349 (Tex.Crim.App. 2002). That fact is binding on this Court in absence of direct proof of its falsity. See id. And it is bolstered by appellant's letter to the trial judge, the trial court's docket, the unsigned pass slip, and the "jury charge waiver" discussion at the start of appellant's trial. Thus, appellant has failed to show he was denied his constitutional right to a jury trial, and the trial court's error in failing to follow the article 1.13 jury-waiver procedure was harmless. See id. We overrule appellant's second point of error. We affirm the trial court's judgment.