No. 05-09-00804-CR
Opinion Filed March 31, 2010. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 416th Judicial District Court Collin County, Texas, Trial Court Cause No. 416-82853-08.
Before Justices RICHTER, LANG-MIERS, and MURPHY.
Opinion By Justice LANG-MIERS.
James Boyd Ward waived a jury and pleaded not guilty before the trial court to theft of property valued at $1500 or more, but less than $20,000. After finding appellant guilty, the trial court assessed punishment at two years' confinement in a state jail facility, probated for four years, and a $500 fine. In two issues, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm.
Applicable Law
In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We review all the evidence in the light most favorable to the verdict, and assume the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. See Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007). In a factual sufficiency review, we consider all of the evidence in a neutral light and determine whether (1) the evidence supporting the conviction is too weak to support the fact-finder's verdict or, (2) considering conflicting evidence, the fact-finder's verdict is against the great weight and preponderance of the evidence. Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009). We may only find the evidence factually insufficient when necessary to prevent manifest injustice. Id. Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to give to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). To obtain a conviction, the State was required to prove beyond a reasonable doubt that appellant, with intent to deprive the owner of the property, unlawfully appropriated United States currency of the value of at least $1500, but less than $20,000, without the effective consent of William Bruce, the owner of the property. See Tex. Penal Code Ann. § 31.03(a), (e)(4)(A) (Vernon Supp. 2009). Evidence Presented
In April 2008, appellant provided landscaping service to Terry and Rebecca Ray in exchange for $5600 in cash. The Rays had an ongoing service contract with Bruce Landscaping and Maintenance (the company) for lawn mowing service, but had called the company about landscaping their back yard. Rebecca Ray testified she spoke with someone named "Mark," who said he would send out appellant because appellant did all of the landscaping for the company. Although appellant was not driving a company car or wearing a company shirt when he came to her home, Ray nonetheless believed appellant was there on behalf of the company. Appellant showed Ray landscaping designs on a laptop computer, offered suggestions, and gave a verbal estimate of $10,000. When Ray's husband indicated the estimate was too high, and that he could do with less landscaping for a reduced price, appellant said the Rays could pay a lesser amount if payment was made in cash. The Rays agreed. Ray testified she paid appellant $2500 in cash to begin the job. The next day, appellant arrived at the Ray home along with two workers who were driving a truck with the company's name on it. Appellant and the two workers completed the landscaping in two days. Ray testified she paid appellant a total of $5600 in cash. Although she thought it was odd that she did not get any type of receipt, she did not say anything because she and her husband were pleased with the work done. She was contacted by a police detective a few months later. Mark Stovall is a Dallas firefighter and also works for the company. Stovall testified he managed the maintenance and lawn mowing services for the company while appellant managed the company's landscaping services. Stovall was not aware of any work being done at the Ray home other than weekly lawn maintenance. He eventually learned, however, that appellant had done landscaping for the Rays. An employee told Stovall that he believed there was "something suspicious about a job at the Ray home." Stovall was aware that there were invoices for materials that did not match any jobs listed on the company's computer system. Stovall went to the Ray home and looked at the work that had been done. The landscaping he observed there matched materials on several invoices. After talking with the company's owner, Stovall notified the police. William Bruce, a longtime Dallas firefighter, owns the company. Bruce testified most of his employees were free to do projects unrelated to the company on their own free time. Bruce employed appellant as a landscape designer for the company. Bruce explained that when a landscaping request came into the office, the customer was "handed off" to appellant. Appellant was in charge of contacting the customer, setting an appointment, doing the designs, bidding the job, selling the job, gathering materials for the job, and completing the job. Appellant supervised two laborers, but only Bruce issued and signed employee paychecks. Bruce testified he loaned appellant money, keeping track of the dates and amounts of each transaction on a note card. The card showing appellant owed Bruce $3,918.03 in 2008 was admitted into evidence. Bruce testified he had set up company accounts at several nurseries and other businesses throughout Plano so an employee could write up an order and have one of the workers pick up materials at the nurseries in one of the company trucks. All of the nurseries knew appellant worked for the company. Bruce testified appellant never told him he completed a landscape job at the Ray home, but he found out about the job from other employees. During his investigation of the work at the Ray home, Bruce learned several invoices for materials matched landscaping materials at the Ray home, and the Rays paid appellant in cash for the work and materials. Bruce testified that not only did appellant not give the company the money paid to him by the Rays, the company also paid the hourly wages of the workers who helped appellant complete the work and the invoices for materials used at the Ray home. Bruce testified he did not give appellant consent to keep the money he received from the Rays. Bruce did not talk to appellant about the Ray job, but he did talk to him about his work performance and other issues. Appellant quit the next day, then went back to the company's offices when it was closed and got his belongings. A short time later, appellant brought a box of items to the warehouse after the offices were closed and left it with one of the workers. A check issued to Bruce for $1000 was inside the box. Bruce testified the check was repayment for loans he had previously made to appellant, and that he still had two uncashed payroll checks for appellant: one for $884.80 and one for $499.29. Melvin Miller is a laborer and truck driver for the company. Miller testified appellant was his supervisor and had him work on the landscaping job at the Ray home. Appellant ordered a "bunch of boulders," put one of them at the Ray home, and used the other boulders at another address. Miller became suspicious about this activity, so he told Bruce and Stovall about the work he did at the Ray home. Miller testified all of the equipment and materials they used for the work at the Ray home belonged to the company. Two days after he talked to Bruce, Miller quit the company. Miller testified he had prior convictions for burglary of a habitation and of a building, and for DWI. Detective Jeff Dalton investigated the alleged theft from the company beginning in April 2008. Dalton testified he gathered information from several people before he conducted a videotaped interview with appellant on July 19, 2008. A DVD of the interview was admitted into evidence and played to the trial court. The DVD shows appellant made the following statements: (1) he talked with Bruce about the landscaping work at the Ray home before he quit the company; (2) Bruce said he was going to keep appellant's last paychecks; (3) he was angry with Bruce when the Ray landscaping request came up, so he kept the money for himself; (4) he intended to do the Ray work himself and not on behalf of the company; (5) he used some leftover materials and some company materials to complete the work at the Ray home; (6) the $1000 check was repayment for using the company materials at the Ray home; and (7) he apologized to Bruce for "what I did to him," and he was wrong for doing the work at the Ray home without giving the company the money. Laura Pirkle, an office manager for the company, testified on appellant's behalf. Pirkle handles accounts receivables for the company, but does not see the vendor invoices. Pirkle testified the company uses both written and verbal bids and different types of service agreements. The Rays had a service agreement for mowing services. Pirkle testified that on one occasion she had a few of the company's workers put landscaping in her yard on a Saturday, and she paid them in cash. Pirkle obtained permission from Bruce before having the work done, and she paid for all of the materials used. Appellant did not testify during the trial. Discussion
Appellant contends the evidence is legally and factually insufficient because there was no intent to deprive Bruce of the property. Appellant asserts Bruce gave him consent to do his own projects, and appellant was free to do so in this instance. Appellant argues that because he reimbursed Bruce for materials and labor used, the evidence is insufficient to show the intent to deprive element of the alleged offense. The State responds that the evidence is legally and factually sufficient to support appellant's theft conviction. The evidence presented shows the Rays requested landscaping service from the company, the company paid the invoices for the materials and equipment used for landscaping at the Ray home, and the company paid the wages for two laborers who helped complete the landscaping at the Ray home. Ray believed she was dealing with the company when she paid appellant $5600 for the landscaping work. Bruce testified he did not give appellant consent to keep any money paid to him for landscaping at the Ray home. Bruce knew nothing about the work at the Ray home until an employee told him about it. Although appellant gave Bruce a check for $1000, Bruce indicated the money was repayment for cash loans he had made to appellant and not for the materials used for the landscaping at the Ray home. During his interview with Dalton, however, appellant stated the $1000 check was reimbursement for the materials he had used that belonged to the company. As the fact-finder in this case, it was the trial judge's role to reconcile any conflicts in the evidence. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003). The trial judge was free to accept or reject any and all of the evidence presented by either side. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Moreover, the requisite specific intent to commit theft can be inferred from a defendant's conduct, his remarks, and from all surrounding circumstances. See Robertson v. State, 871 S.W.2d 701, 705 (Tex. Crim. App. 1993). Evidence that appellant initially lied about the theft, quit the company, and apologized to Bruce also shows a "consciousness of guilt" that supports the trial court's determination. Viewing all of the evidence under the proper standards, we conclude it is legally and factually sufficient to support's appellant's conviction. See Laster, 275 S.W.3d at 518; Vodochodsky, 158 S.W.3d at 509. We resolve appellant's two issues against him. We affirm the trial court's judgment.