Opinion
No. 10-03-00071-CR
Opinion delivered and filed October 13, 2004. DO NOT PUBLISH.
Appeal from the County Court at Law No. 1 McLennan County, Texas, Trial Court # 2001-4949-CR1. Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
Matthew Martin was tried before a jury and convicted of theft over $50. TEX. PEN. CODE ANN. § 31.03 (Vernon Supp. 2004). Martin was sentenced to sixty days in jail, probated for a period of one year, a fine in the amount of $200, and twenty-five hours of community service. He brings six issues on appeal: (1) he was erroneously charged with theft rather than destruction, removal or concealment of a writing; (2) the trial court erred in failing to define "deception"; (3) the evidence is legally and factually insufficient; (4) the trial court erred in denying his motion to exclude photographs; (5) the trial court's treatment of Martin prejudiced him in the eyes of the jury; and (6) he did not receive effective assistance of counsel. We will overrule the issues and affirm the judgment.
BACKGROUND
On October 18, 2001, Martin was shopping at Wal-Mart with Blanca Scheele, his girlfriend and business partner. Martin put a computer monitor and printer into a shopping cart. He testified that he picked a loose tag off of one of the items and placed it back on the item. Wal-Mart's loss prevention officer, however, testified that he saw Martin pull labels off of both items, take a sticker out of his pocket, and place the sticker over the bar code on the printer. The printer rang up at $69.93, but the price of the printer was $298.00.In Pari Materia
Martin's first issue argues that his conviction should be set aside because he was charged with the general statute of theft, rather than the more specific statute of destruction, removal or concealment of a writing. See TEX. PEN. CODE ANN. §§ 31.03, 32.47. Where a general statute and a specific statute both proscribe a defendant's conduct, the defendant should be charged under the more specific statute. See Davis v. State, 968 S.W.2d 368, 372 (Tex.Crim.App. 1998). Because Martin's challenge is to the substance of the charging instrument, he was required to object before trial to preserve the complaint for appeal. Short v. State, 995 S.W.2d 948, 953 (Tex.App.-Fort Worth 1999, pet. ref'd) (citing TEX. CODE CRIM. PROC. ANN. art. 1.14(b) (Vernon Supp. 2004)). Martin did not object and brings this issue for the first time on appeal. By failing to timely object to the substance of the indictment under the doctrine of in pari materia, he waived his complaint. See id.; TEX. R. APP. P. 33.1(a)(1). We overrule this issue."Deception" Instruction
Martin's second issue argues that the court erred in failing to instruct the jury on the definition of "deception" in the charge to the jury. Martin concedes that he did not object to the charge. When reviewing charge errors, an appellate court must undertake a two-step review: first, the court must determine whether error actually exists in the charge, and second, the court must determine whether sufficient harm resulted from the error to require reversal. Abdnor v. State, 871 S.W.2d 726, 731 (Tex.Crim.App. 1994); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (on rehearing). Assuming without deciding that the failure to include a definition of "deception" was error, we reverse only if the unobjected to error caused "egregious" harm. Jimenez v. State, 32 S.W.3d 233, 235 (Tex.Crim.App. 2000); Almanza, 686 S.W.2d at 171. In evaluating whether charge error caused egregious harm to the accused, we consider (1) the entire jury charge, (2) the evidence produced at trial, the contested issues and the weight of the probative evidence, (3) the attorneys' arguments, and (4) any other relevant information revealed by the record of the trial as a whole. Ovalle, 13 S.W.3d 774, 786 (Tex.Crim.App. 2000) (quoting Almanza, 686 S.W.2d at 171). Egregious harm exists if the error has denied the defendant a fair and impartial trial. Id. The court charged the jury as follows: Now, therefore, if you find and believe from the evidence beyond a reasonable doubt that Matthew Martin in McLennan County, Texas, on or about the 18th day of October, 2001, did unlawfully appropriate, by acquiring or otherwise exercising control over, property, to-wit: computer equipment, of the value of $50 or more but less than $500, from Shannan Barnett, the owner thereof, and without the effective consent of the owner, namely, by deception and with intent to deprive the owner of the property, then you will find the Defendant guilty as charged. If you do not so find and believe, or if you have a reasonable doubt thereof, then you will find the Defendant "Not Guilty." In reviewing the record and the charge, we cannot say that Martin suffered egregious harm because the statutory definition of "deception" was not included in the charge. The statutory definition of deception is more expansive than the common usage of the term, and thus the absence of the definition likely benefited Martin. See Shelley v. State, 1987 WL 14554, *3 (Tex.App.-Houston [1st Dist.] 1987, no pet.) (not designated for publication). We overrule this issue.Legal and Factual Insufficiency
Martin contends that the evidence was legally and factually insufficient to support a finding that he acquired or exercised control of the computer equipment. When reviewing the legal sufficiency of the evidence, we view 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, 318-19, 199 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979). A legal sufficiency review considers "all of the evidence" which the jury was permitted to consider. Id. We review factual sufficiency by considering all of the evidence in a neutral light to determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex.Crim.App. April 21, 2004). Martin argues that there is no evidence that he, rather than Scheele, attempted to appropriate the printer. However, the loss prevention officer testified that he saw Martin select the printer, place it in a cart, take the printer from the electronics department to the toy department, pull labels off both products, and place paper from his shirt pocket on the printer. Although both Martin and Scheele testified that she, not he, purchased the printer, the loss prevention officer testified that both Martin and Scheele went through the checkout together. A store manager testified that Martin was pushing the cart containing the printer when the manager confronted Martin outside of the store. Considering all of the evidence in the light most favorable to the verdict, the jury could have rationally found beyond a reasonable doubt that Martin exercised control over the printer. Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2788-89. Considering all of the evidence in a neutral light, we cannot say the jury was not rationally justified in finding that Martin exercised control over the printer. Zuniga, 2004 WL 840786, at *7. We overrule this issue.Best Evidence
Martin complains that photographs of the printer box and monitor box admitted as evidence should not have been admitted as they were irrelevant and not the best evidence. The admission of evidence is within the sound discretion of the trial court, and its ruling shall not be disturbed on appeal absent a clear abuse of discretion. McVickers v. State, 874 S.W.2d 662, 663 (Tex.Crim.App. 1993). Martin argues that the photographs are irrelevant and not the best evidence because the labels are largely unreadable. The purpose of the best evidence rule is to require that if the contents of a writing are to be proved, it must be by the production, if possible, of the very writing itself. Tex. R. Evid. 1002; Shugart v. State, 32 S.W.3d 355, 366-67 (Tex.App.-Waco 2000, pet. ref'd). The record does not indicate that the photographs were admitted to prove the contents of the labels or the bar codes. A store manager testified that the photographs were fair and accurate representations of the way the printer box and monitor box appeared on the date of the incident, including the labels that were attached to the printer box. The actual label that Martin was accused of attaching to the printer box was admitted into evidence as a separate exhibit. Because the photographs were not admitted to prove the contents of a writing, the trial court did not abuse its discretion by finding that the best evidence rule did not apply. We will not disturb the trial court's ruling that the photographs were relevant. We overrule this issue.Trial Court's Remarks
Martin's fifth issue complains that the trial court's remarks prejudiced Martin in the eyes of the jury. At trial, Martin testified in his own defense. The trial judge repeatedly admonished Martin to answer the questions asked of him, to not interrupt his attorney, and to "quit launching into narratives." Martin specifically complains of the following exchange:Question: Do you have any comments on this? Not really.
Answer: Yeah, I do have a comment.
Court: Mr. Crow, that is not a proper question, "Do you have any comments on this?"
Mr. Crow: I apologize.
Court: He's got comments on everything, but I would like to hear something that's relevant to his defense or to the case.Martin complains that the judge's comments implied that he does not have a defense. As a general rule trial counsel must object to the trial judge's comments during trial to preserve a complaint. State v. Blue, 41 S.W.3d 129, 131 (Tex.Crim.App. 2001); TEX. R. APP. P. 33.1. Martin did not object at trial. Although we do not necessarily approve of the trial judge's remark, it did not amount to fundamental error and was therefore not preserved for review. Id. We overrule this issue.