Opinion
No. 05-02-01739-CR.
Opinion issued February 19, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F02-40271-J. Affirmed.
Before Justices WHITTINGTON, JAMES, and O'NEILL.
OPINION
Troy Lorenzo Guiton appeals his conviction for theft. A jury found appellant guilty, found two enhancement paragraphs true, and assessed punishment at confinement for ten years. Appellant raises two points of error on appeal contending: (1) the evidence was legally insufficient to prove Cody Townson, the listed complainant, was the "owner" of the stolen property; and (2) error occurred when the prosecutor commented on appellant's failure to testify. We affirm the trial court's judgment.
Background
Appellant was convicted of theft for stealing two suits from a Dillard's department store. Cody Townson, the loss prevention officer for Dillard's, witnessed appellant leaving the suit area of the department store with two suits draped over his arm. Appellant had not paid for the suits. Townson notified other store associates, and they and other witnesses saw appellant leave the store with the suits, drop them after store associates pursued him, and flee the area. Witnesses chased appellant, detaining him in another store in the mall. At trial, appellant entered a plea of not guilty. The jury found him guilty of theft, found two enhancement paragraphs true, and assessed punishment at confinement for ten years.Legal Sufficiency
In his first issue, appellant contends the evidence was legally insufficient to prove Cody Townson was the "owner" of the stolen property. We review a legal sufficiency challenge under well-known standards, examining the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). In making this determination, we consider all the evidence admitted, including improperly admitted evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001). The State was required to prove appellant "unlawfully appropriated property with intent to deprive the owner of the property." Tex. Pen. Code Ann. § 31.03(a) (Vernon 2003). Under the penal code, a person who has "greater right to possession of the property than the actor" is the owner of property. See Tex. Pen. Code Ann. § 1.07 (35)(A) (Vernon 2003). When a corporation owns property that has been stolen, the preferable pleading practice is to allege ownership in an individual acting for the corporation rather than alleging ownership in the corporation. See Sowders v. State, 693 S.W.2d 448, 451 (Tex.Crim.App. 1985). The court of criminal appeals has determined that a security guard, hired to protect a store's property, has a greater right to possession of the store's property than a thief. See Johnson v. State, 606 S.W.2d 894, 896 (Tex.Crim.App. 1980). Appellant stole two suits from a Dillard's department store. The indictment listed Cody Townson, Dillard's loss prevention officer, as the owner of the property. Townson testified he was the reporting person, regularly named in indictments alleging theft of Dillard's property, and was, therefore, effectively the owner or representative owner. The court's charge to the jury defined "owner" as one who has greater right to possession of the property than the person charged with theft. We conclude the evidence was legally sufficient for the jury to have found Townson had greater right to possession of the stolen suits and was thus established as the owner of the stolen property. See Young, 14 S.W.3d at 753; Johnson, 606 S.W.2d at 896. We overrule appellant's first point of error.Improper Argument
In his second point of error, appellant contends error occurred because during argument, the prosecutor commented on appellant's failure to testify. Appellant argues this constituted fundamental error, mandating reversal. Appellant did not object to any of the alleged improper comments and, thus, has not preserved his complaints for our review. See Tex.R.App.P. 33.1(a); Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996) (holding appellant waived complaint that prosecutor commented on his failure to testify during closing argument by failing to object). Accordingly, appellant has waived his complaint. However, even had appellant preserved error for our review, we would not conclude reversible error occurred. Proper jury argument must encompass one of the following: (1) a summation of the evidence presented at trial, (2) a reasonable deduction drawn from that evidence, (3) an answer to the opposing counsel's argument, or (4) a plea for law enforcement. Shannon v. State, 942 S.W.2d 591, 597 (Tex.Crim.App. 1996). The appellant's state and federal constitutional and statutory right not to be a witness against himself prohibits the State from commenting on the defendant's failure to testify. See Brown v. State, 92 S.W.3d 655, 665 (Tex.App.-Dallas 2002), aff'd on other grounds, 122 S.W.3d 794 (Tex.Crim.App. 2003); Sauceda v. State, 859 S.W.2d 469, 474 (Tex.App.-Dallas 1993, pet. ref'd). In an appeal from an allegedly impermissible comment, we consider the comment from the standpoint of the jury. See Swallow v. State, 829 S.W.2d 223, 225 (Tex.Crim.App. 1992); Brown, 92 S.W.3d at 665. For the prosecutor's argument to violate the defendant's right against self-incrimination and be reversible error, the argument must do more than merely imply or indirectly allude to the defendant's failure to testify; the argument must be manifestly intended or be of such a character that the jury would necessarily and naturally take it as a comment on the accused's failure to testify. See Brown, 92 S.W.3d at 665. Argument that points to a lack of evidence that only the defendant personally can supply violates the defendant's right against self-incrimination. See id. However, language that can reasonably be construed to refer to a failure to present evidence other than from the defendant's own testimony does not comment on the defendant's failure to testify. See Swallow, 829 S.W.2d at 225. Appellant complains of the following remarks:But, ladies and gentlemen, cases like this are simple. Even though you didn't hear anything in dispute, our law, this country, allows anybody charged with a crime to have a jury trial, to be judged by twelve citizens from the community, and that's what he chose to do. It's that simple.
Don't think for a minute that something's missing. Why didn't we hear any conflicting testimony? Some people, some people need to have a jury tell them that they're guilty. Okay? It's that simple. So don't think for a minute that you're missing something. This isn't how I see it on TV because they're always fighting.
There was nothing in conflict.We do not conclude the complained-of remarks constitute fundamental error. Prior to this portion of the State's argument, defense counsel argued the State had not put on evidence from video surveillance. Accordingly, the prosecutor's argument was in response to opposing counsel's argument. See Shannon, 942 S.W.2d at 597. Furthermore, we do not interpret this argument as manifestly intended or of such a character that the jury would necessarily and naturally take it as a comment on appellant's failure to testify. See Brown, 92 S.W.3d at 665. Numerous witnesses testified as to seeing appellant flee the store with stolen merchandise. Therefore, testimony about what occurred was provided by witnesses other than appellant; this testimony did not dispute the State's version of events. The jury could have heard the prosecutor's argument as the State merely pointing out there were no disputes about the basic facts-even considering all the witnesses' testimony. Accordingly, we are unable to construe the argument as a reference to a failure to present evidence only the appellant could have provided. We conclude the argument did not comment on the appellant's failure to testify. See Swallow, 829 S.W.2d at 225. We overrule appellant's second point of error. We affirm the trial court's judgment.