Opinion
Nos. 05-05-00754-CV, 05-05-00776-CV, 05-05-00777-CV, 05-05-00778-CV, 05-05-00779-CV
Opinion issued February 13, 2006.
On Appeal from the 417th Judicial District Court Collin County, Texas, Trial Court Cause Nos. 366-70716-03, 366-70309-02, 366-70715-03, 366-70752-04, 366-70763-03.
Affirmed as modified in part, Reversed and Remanded in part.
Before Justices WRIGHT, O'NEILL, and FRANCIS.
MEMORANDUM OPINION
C.L.W. challenges the trial court's orders committing him to the Texas Youth Commission (TYC). In four points of error, appellant challenges the sufficiency of the evidence to support the finding he committed theft, asserts one disposition order conflicts with the adjudication order, and contends the trial court committed reversible error by committing him to TYC in two cases. We affirm in part and reverse in part.
Background
In 2003, appellant was adjudicated a child engaged in delinquent conduct by committing burglary of a building (05-05-00754-CV), criminal trespass (05-05-00776-CV), unauthorized use of a vehicle (UUMV) (05-05-00777-CV), and making a false report (05-05-00779-CV). The trial court placed appellant on probation until his eighteenth birthday. The four cases were heard in a single proceeding.
A year later, the State filed motions to modify disposition in each case, alleging appellant had committed new offenses. Following a hearing, the trial court found appellant had violated the terms of his probation, sustained the State's motions to modify, and committed appellant to TYC in each case. In the same proceeding, the trial court adjudicated appellant a child engaged in delinquent conduct by committing theft of property valued at $500 or more but less than $1500 (05-05-00778-CV). The trial court committed appellant to TYC in the theft case, as well.
05-05-00778-CV
In his first point of error, appellant contends the evidence is legally insufficient to support the trial court's finding that he committed theft of property valued at more than $500 but less than $1500. Appellant contends he committed attempted theft, at most, because he never completed the theft. The State responds that the evidence is legally sufficient to show appellant committed the theft, because by removing the property from its customary location, appellant exercised control over it.
In reviewing a challenge to the legal sufficiency of the evidence to establish the elements of a penal offense that forms the basis of the finding that the juvenile engaged in delinquent conduct, we must determine whether, after viewing all the evidence in the light most favorable to the verdict, 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 Matter of A.S., 954 S.W.2d 855, 858 (Tex.App.-El Paso 1997, no pet.). Our duty is to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all of the evidence admitted at trial in a light most favorable to the verdict. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. See Curry v. State, 30 S.W.3d 394, 404 (Tex.Crim.App. 2000).
The State was required to prove that appellant, without the owner's effective consent and with intent to deprive the owner of the property, unlawfully appropriated property valued at $500 or more but less than $1500. See Tex. Pen. Code Ann. § 31.03(a), (e)(3) (Vernon Supp. 2005). "Appropriate" means to acquire or otherwise exercise control over the property, other than real property. See id. § 31.01(4)(B).
At trial, Montey Seabolt and Lee Culley, Wal Mart loss prevention employees, testified they observed appellant stealing numerous DVDs. Appellant entered their McKinney store at about 11:15 p.m., placed a pillow in a shopping cart, and went to the electronics department located at the back of the store. Culley left the loss prevention office and went to the sales floor to observe appellant. Culley saw appellant put several DVDs underneath the pillow, then go to the garden center's outside patio area. Both Seabolt and Culley went to the garden area on the outside of the building. In the meantime, appellant put the DVDs into a lawnmower grass-catching bag he had taken from the garden center. Appellant tossed the bag over a three-foot fence on the outside of the patio area and walked back into the main store. Appellant then paid for several items before leaving the store. Culley, who had been standing on the outside of the patio fence when appellant threw the bag, retrieved the bag and took it to the front of the store where several police officers were waiting. Five minutes later, appellant exited the store and was arrested by the police. The officers found thirteen DVD collections inside the grass-catching bag. The value of the DVDs and the bag totaled $887. A videotape made from surveillance cameras located inside and outside the store was played to the court, corroborating Seabolt's and Culley's testimony.
A theft is complete once the actor has exercised control over the property. See Masters v. State, 437 S.W.2d 868, 869 (Tex.Crim.App. 1969). There is no requirement that the property actually be removed from the premises or kept for a specific length of time. See Baker v. State, 511 S.W.2d 272, 272-73 (Tex.Crim.App. 1974). We conclude the evidence is legally sufficient to support the trial court's finding that appellant committed the theft. See In Matter of A.S., 954 S.W.2d at 858. We overrule appellant's first point of error.
In his second point of error, appellant argues his commitment to TYC should be reversed because the disposition order conflicts with the adjudication order. Appellant relies on the fact that the adjudication order says he is "hereby placed on probation" whereas the disposition order commits him to TYC. The State responds that appellant has inadequately briefed the issue and, alternatively, the disposition order is the final authority of the trial court's decision.
Appellant did not cite any authority supporting his position, but did cite In re G.A.O., 854 S.W.2d 710 (Tex.App.-San Antonio 1993, no pet.), as one authority contrary to his position. Although not addressing identical issues, the court in In re G.A.O. stated that the disposition order "is recognized by this court as final authority as to the court's decision." See id. at 714 n. 5.
Here, appellant claims that because the adjudication order places him on probation and the disposition order commits him to TYC, the disposition order should be reversed. We disagree. When the oral pronouncement of a sentence in open court and the written judgment conflict, the oral pronouncement controls. See Thompson v. State, 108 S.W.3d 287, 290 (Tex.Crim.App. 2003); Smith v. State, 176 S.W.3d 907, 920 (Tex.App.-Dallas 2005, no pet.). The record shows the trial judge orally pronounced the disposition with commitment to TYC. The adjudication order conflicts with the oral pronouncement, but the disposition order accurately reflects the trial court's pronouncement. We overrule appellant's second point of error.
We modify the trial court's adjudication order to reflect that appellant was committed to TYC. See Tex.R.App.P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd).
05-05-00754-CV and 05-05-00777-CV
In his third point of error, appellant argues that the modifications of disposition with TYC commitment in the burglary and UUMV cases should be reversed because they were based on the theft offense. Because we have already concluded the evidence is sufficient to support the trial court's finding that appellant committed the theft, we overrule appellant's third point of error.
In a cross-point, the State asks this Court to modify the trial court's nunc pro tunc orders modifying disposition because the orders omitted the year of the theft offense. We agree. We modify the trial court's nunc pro tunc orders modifying disposition to show that appellant committed the theft offense on May 17, 2004. See id.
05-05-00776-CV and 05-05-00779-CV
In his fourth point of error, appellant argues the trial court committed reversible error by committing him to TYC in the criminal trespass and making a false report cases. The State concedes the trial court erred in committing appellant to TYC in these two cases because appellant did not have a prior adjudication. We agree.
Section 54.05(k) of the Texas Family Code sets out under what circumstances a juvenile may be committed to TYC from misdemeanor offenses. Subsection (k) provides:
The court may modify a disposition . . . that is based on an adjudication that the child engaged in delinquent conduct that violates a penal law of the grade of misdemeanor if:
(1) the child has been adjudicated as having engaged in delinquent conduct violating a penal law of the grade of felony or misdemeanor on at least one previous occasion before the adjudication that prompted the disposition that is being modified; and
(2) the conduct that was the basis of the adjudication that prompted the disposition that is being modified occurred after the date of the previous adjudication.
Tex. Fam. Code Ann. § 54.05(k) (Vernon Supp. 2005).
At the time appellant was adjudicated a delinquent for committing the criminal trespass and making a false report offenses, he had no previous adjudications for engaging in delinquent conduct. Therefore, section 54.05(k) precludes a disposition committing him to TYC. We sustain appellant's fourth point of error. We reverse the trial court's disposition orders and remand the cases to the trial court for new disposition hearings.
Because the adjudications in the burglary and UUMV cases were in the same hearing as these cases, the felony cases do not count as previous adjudications.
Conclusion
In cause numbers 05-05-00754-CV and 05-05-00777-CV, we modify the trial court's nunc pro tunc orders modifying disposition to show that the theft was committed on May 17, 2004. As modified, we affirm the trial court's orders modifying disposition with TYC commitment. In cause numbers 05-05-00776-CV and 05-05-00779-CV, we reverse the trial court's orders modifying disposition with TYC commitment and remand for new disposition hearings. In cause number 05-05-00778-CV, we modify the trial court's adjuducation order and affirm the trial court's disposition order with TYC commitment.