Opinion
No. 05-10-00312-CR
Opinion issued August 15, 2011. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 354th Judicial District Court, Hunt County, Texas, Trial Court Cause No. 26,223.
Before Justices O'NEILL, FITZGERALD, and LANG.
MEMORANDUM OPINION
A jury found appellant Armando Hernandez Delapaz guilty of theft by appropriation of property valued at more than $100,000 but less than $200,000. The trial court assessed appellant's punishment at fifteen years' confinement. In a single issue, appellant contends the evidence is insufficient to prove beyond a reasonable doubt that he was guilty of the charged offense. The procedural history, pleadings, and evidence are known to the parties, so we do not recite these matters in detail. We issue this memorandum opinion because the law to be applied is well settled. See Tex. R. App. P. 47.4. We affirm the trial court's judgment. Early on the morning of May 15, 2009, the manager of Economy Builder's Supply notified the business's owner that four trucks (three large flatbed trucks and one Ford F350) and 1757 bundles of roofing shingles had been stolen from the property overnight. The Greenville police were alerted, and the trucks' LoJack anti-theft devices were activated. Within just a few hours, the three flatbed trucks were located in western Dallas County. Dallas police officers arrived at the address identified by the anti-theft system, and they saw the three trucks pulled toward the back of the house. The trucks were clearly painted with Economy Builder's Supply's logo. They were loaded with shingles, and three men were offloading the shingles into the backyard. The officers met appellant walking from the back where the trucks were parked toward the front of the house. He told the officers he lived in the house, and one officer detained him. The other officer walked toward the back yard; when the men offloading the shingles saw him, they ran away. The fourth truck, the Ford F350, was subsequently located at a different address in another part of Dallas. Appellant contends the evidence is insufficient to support his conviction. We review the record to determine whether, considering all of the evidence in the light most favorable to the verdict, the jury was rationally justified in finding guilt beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). In this case, Appellant makes two specific complaints: (1) there is insufficient evidence connecting him to the theft of the fourth truck, the F350, and (2) there is insufficient evidence that he knew the trucks and shingles on his property had been stolen. We address these points in turn. Appellant asserts there is no evidence linking him to the fourth truck. He contends that-absent such evidence-the State has failed to prove the entirety of the theft charged and submitted to the jury. The trial court submitted the theft to the jury by listing conjunctively the property allegedly stolen: a 2002 Sterling L7500, a 1999 Ford F800, a 1998 Ford Flatbed, a 2002 Ford F350 and roofing shingles. The State did not object to this submission, and appellant argues the State was required to prove his participation in the theft of every item listed, including the Ford F350. He contends the absence of evidence connecting him to the theft of the Ford F350 amounts to a failure by the State to prove an element of the offense, requiring the trial court's judgment to be reversed and rendered in his favor. A correct submission of the stolen property would have listed the items disjunctively. See Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991) ("although the indictment may allege the differing methods of committing the offense in the conjunctive, it is proper for the jury to be charged in the disjunctive"). Nevertheless, we determine the sufficiency of the evidence based on the hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Thus, the evidence is sufficient to prove appellant committed the charged offense so long as he is appropriately linked to stolen property valued at more than $100,000 but less than $200,000; he need not be linked to every item listed in the jury charge. The owner of Economy Builder's Supply testified the total value of the property stolen was approximately $130,000 to $152,000. He testified the value of the Ford F350 was approximately $10,000. Appellant has not challenged the sufficiency of the evidence tying him to theft of the three flatbed trucks and the shingles, all of which were being delivered to him on his property when the police arrived. Thus, even if there were no evidence tying appellant to the theft of the Ford F350, there remained sufficient evidence to tie him to the theft of property worth between $120,000 and $142,000. We conclude the absence of evidence tying appellant to the theft of the fourth truck does not undermine the sufficiency of the evidence supporting his conviction. Appellant also challenges the sufficiency of the evidence establishing that he had actual knowledge that the trucks and shingles received on his property were stolen. In this case, appellant was discovered in the early morning hours taking possession of property stolen during the previous night. Stolen shingles were being offloaded from trucks that were clearly marked with the name of a business from whom appellant could not have believed he had purchased the shingles. The men offloading the materials on appellant's property fled at the sight of a police officer. Unexplained possession of recently stolen property is sufficient for conviction in cases where the accused in fact received the stolen property from someone other than the alleged owner. See Chavez v. State, 843 S.W.2d 586, 588 (Tex. Crim. App. 1992). We conclude a rational jury could have concluded appellant was taking possession of the property knowing it was stolen by another. See Tex. Penal Code Ann. § 31.03(b)(2) (West 2011). We overrule appellant's single issue and affirm the trial court's judgment.
The owner testified first that the total value of the stolen property was approximately $152,000. When he subsequently estimated the value of each individual piece of property, the combined value approximated $130,000 to $140,000.