No. 01-09-00116-CR
Opinion issued May 19, 2011. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 232nd District Court, Harris County, Texas, Trial Court Case No. 1174373.
Panel consists of Justices JENNINGS, ALCALA, and SHARP.
JIM SHARP, Justice.
Charles Faulk was convicted by a jury of unauthorized use of a motor vehicle. The trial court assessed appellant's punishment at twenty-three months incarceration in a state jail facility. We determine (1) whether the evidence is legally and factually sufficient to support appellant's conviction and (2) whether the trial court abused its discretion in denying appellant's request for self-representation at trial. We affirm.
BACKGROUND
In June, 2008, Faulk and another man went to a Houston used car dealership where Nicholas Crouch was the lone salesman working. Faulk claimed that he had just been approved for $10,000 in auto financing at a Car Max dealership, had $5000 in cash, and wanted to purchase a car. Faulk filled out the credit application paperwork and asked to test drive a green Pontiac G-6 that was on the lot. Crouch went to the back of the office to take a bite out of his sandwich and when he returned, the men and the car were gone. The application Faulk submitted showed the name "Charles Faulk" as the applicant but was scratched out and the name Elijah Howell written on top of it. The application was signed by "Elijah Howell" and contained phone numbers, addresses, landlord and employer information. Crouch was unsuccessful in reaching appellant with this information. Crouch's supervisor, Nader Yekanimzree, also tried calling the numbers on the application to contact appellant, but all either belong to other people or were disconnected. Yekanimzree then called the police. Crouch contacted the Car Max dealership but was told that no one matching the description of either of the two men had there that day. Five days later, Houston Police Department Sergeant Randy Martin showed Crouch a photo spread portraying six men, one of whom was appellant. Crouch identified appellant, but cautioned that he was not 100 percent sure because the hairstyle and clothing were different. Early July 11, 2008, appellant, driving a green Pontiac G-6 with no license plates, was stopped for a traffic violation. Appellant told the officer that he had no insurance. When the officer ran the VIN number and appellant's identification, he was informed the car was stolen and that appellant had an open warrant. Appellant was arrested and the car was impounded. Later that day, Yekanimzree was contacted, and returned the stolen car to the dealership. The matching VIN numbers confirmed it to be the same green Pontiac G-6 taken the month before. SUFFICIENCY
In his second and third points of error, appellant challenges the legal and factual sufficiency to support his conviction for unauthorized use of a motor vehicle. Specifically, appellant argues that the evidence is legally and factually insufficient to show that the stolen green Pontiac G-6 that appellant was driving on July 11, 2008 was the same green Pontiac G-6 that was stolen on June 13, 2008. A. Standard of Review
We apply the Jackson v. Virginia, 443 U.S. 307, 320, 99 S.Ct. 2781, 2789 (1979), sufficiency standard of review to complaints styled as legal or factual sufficiency challenges concerning the elements of a criminal offense. See Ervin v. State, 331 S.W.3d 49, 52-56 (Tex. App.-Houston [1st Dist.] 2010, pet. ref'd) (citing Brooks v. State, 323 S.W.3d 893, 894-913 (Tex. Crim. App. 2010)). Under the Jackson standard, evidence is insufficient to support a conviction if, considering all the record evidence in the light most favorable to the verdict, no rational fact-finder could have found that each essential element of the charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at 317, 319, 99 S.Ct. 2788, 2789; Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). It is the function of the trier of fact to resolve any conflict of fact, to weigh any evidence, and to evaluate the credibility of any witnesses. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We therefore resolve any inconsistencies in the evidence in favor of the verdict, and "defer to the jury's credibility and weight determinations." See Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). This deferential standard applies equally to circumstantial and direct evidence. Laster, 275 S.W.3d at 517-18. As the determiner of the credibility of the witnesses and the weight to be given to their testimony, the factfinder may choose to believe all, some, or none of the testimony presented. See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). B. Analysis
Under both of his sufficiency complaints, appellant contends that his conviction should be reversed because the evidence was insufficient to show that appellant ever drove the green Pontiac G-6 that was taken from the car dealership. Appellant acknowledges evidence at trial that (1) he "had been present in the vicinity" when a green Pontiac G-6 disappeared from the lot on June 13, 2008, (2) that he was stopped driving a stolen green Pontiac G-6 and arrested on July 11, 2008, and (3) that Yekanimzree recovered the dealership's stolen green Pontiac G-6 from the impound lot on the day of appellant's arrest. Appellant argues, however, that the evidence is legally and factually insufficient to show that the stolen green Pontiac G-6 that he was driving on July 11, 2008, which was impounded that morning, was the same green Pontiac G-6 that was stolen on June 13, 2008 and recovered by Yekanimzree from the impound lot on the day of appellant's arrest. It is within the province of the jury to make weight and credibility determinations and we must give deference to the jury's resolution of those issues. Marshall, 210 S.W.3d at 625. In a legal sufficiency review, we must also give deference to "the responsibility of the finder of fact to draw reasonable inferences from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (quoting Jackson, 443 U.S. at 318-19, 99 S. Ct. 2781). Circumstantial evidence is as probative as direct evidence and can alone be sufficient to establish guilt. Hooper, 214 S.W.3d at 13. Jurors are also "free to use their common sense and apply common knowledge, observation, and experience gained in the ordinary affairs of life when giving effect to the inferences that may be reasonably drawn from the evidence." Obigbo v. State, 6 S.W.3d 299, 306 (Tex. App.-Dallas 1999, no pet.). The evidence in the record establishes, and appellant effectively admits on appeal, that appellant was the person who completed a fraudulent credit application at the car dealership, asked to test drive the green Pontiac G-6 that was stolen that day, and who "disappeared" from the dealership at the same time as the car. The evidence also establishes that the dealership recovered the missing car from the impound lot on the same day that appellant was arrested for driving a stolen green Pontiac G-6 that was impounded. Appellant essentially argues that he was driving a different stolen green Pontiac G-6 on July 11, 2008 than the green Pontiac G-6 previously stolen from the dealership and, thus, a different stolen green Pontiac G-6 was impounded as a result of his arrest. Under this argument, the phone call from the impound lot to the dealership on the day of appellant's arrest, and the dealership's subsequent recovery of its stolen green Pontiac G-6 from the impound lot on that day, were simply happy coincidences wholly unrelated to appellant. Reviewing the evidence in the light most favorable to the verdict, we hold that a rational jury could have found beyond a reasonable doubt that the stolen green Pontiac G-6 driven by appellant on July 11, 2008 was same green Pontiac G-6 that was stolen immediately after appellant asked to test drive it on June 13, 2008 and which was recovered by the dealership from the impound lot on the date of appellant's arrest. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Lyles v. State, 582 S.W.2d 138, 142-43 (Tex. Crim. App. 1979) (panel op.) (holding that circumstantial evidence that car stolen and car recovered were both 1969 Plymouths with pulled-out wires under the dashboard was sufficient to establish that car appellant was driving was the same car stolen from lot); see also Rogers v. State, 929 S.W.2d 103, 108 (Tex. App.-Beaumont 1996, no pet.) (holding that it is for factfinder to weigh whatever descriptive evidence is presented regarding identification of property stolen vis-a-vis property observed in possession of defendant, along with related circumstances of case, to reach conclusion whether property possessed was property that had been stolen). We overrule appellant's second and third points of error. SELF-REPRESENTATION
In his first point of error, appellant contends that the trial court reversibly erred by denying appellant his Sixth Amendment right to self-representation. Specifically, appellant argues that, contrary to the trial court's findings, his request was neither untimely nor conditional. The jury was impaneled and sworn in on February 9, 2009. The following morning — before the indictment was read or any evidence was presented — appellant asked the court, outside of the jury's presence, to either appoint him new counsel or allow him to represent himself at trial. After informing appellant of the risks associated with proceeding pro se and considering the arguments of appellant, appellant's counsel and the State, the trial court found that appellant's request was untimely, conditional, and disruptive of the proceedings, and denied the request. While it is well settled that a defendant in a criminal case has the right to represent himself without the assistance of counsel, see Faretta v. California, 422 U.S. 806, 819, 95 S. Ct. 2525, 2533, 45 L. Ed. 2d 562 (1975), in order for the right of self-representation to be adequately asserted, the right must be asserted in a timely manner, namely, before the jury is impaneled. See Ex Parte Winton, 837 S.W.2d 134, 135 (Tex. Crim. App. 1992); see also McDuff v. State, 939 S.W.2d 607, 619 (Tex. Crim. App. 1997). Although appellant acknowledges that his request was made the day after the jury was impaneled and sworn, he nevertheless argues that his request for self-representation was still timely, citing to Johnson v. State, 676 S.W.2d 416, 419 (Tex. Crim. App. 1984) (finding request for self-representation made after jury impaneled was timely because no evidence had been presented to jury). Johnson, however, is in direct conflict with subsequent Texas Court of Criminal Appeals cases addressing the timeliness of a request for self-representation. See McDuff, 939 S.W.2d at 619 (holding denial of request for self-representation was not error because Sixth Amendment right was untimely asserted after jury was impaneled); see also Winton, 837 S.W.2d at 135 (stating request for self-representation untimely if made after jury is impaneled). Under these later precedents, appellant's request for self-representation, which was made after the jury was impaneled, was untimely. See McDuff, 939 S.W.2d at 619; Winton, 837 S.W.2d at 135. We overrule appellant's first point of error. CONCLUSION
We affirm the judgment of the trial court.