Opinion
No. 05-15-00042-CR
01-27-2016
JONATHAN CHRISTOPHER RHODES, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 366th Judicial District Court Collin County, Texas
Trial Court Cause No. 366-80244-2013
MEMORANDUM OPINION
Before Justices Fillmore, Myers, and Whitehill
Opinion by Justice Whitehill
This case involves a theft conviction where there were no eye witnesses to the theft. The determinative question is whether the circumstantial evidence proved more than a mere opportunity to commit theft.
In two appellate issues, appellant contends that the trial court erred in denying his motion for a directed verdict and that the evidence is insufficient to support his conviction. Because we conclude that the evidence is sufficient to support his conviction, and thus it was not error to deny the motion for directed verdict, we affirm the trial court's judgment.
I. Background
A. Events Leading up to the Theft.
Jamey Hendrix, the complainant, befriended appellant, who was homeless. Although appellant moved in with Hendrix for about a month or so, he moved back out after the men hit "some rocky patches." Despite their differences, the men remained friends.
After appellant moved out, Hendrix received a telephone call from a restaurant that wanted to interview appellant for a position. Hendrix told appellant about that job opportunity, and appellant stayed at Hendrix's house the night before the interview.
On the interview date, Hendrix and appellant were in the living room talking when Hendrix decided to leave the house to get some food. Hendrix then walked to the bedroom to retrieve some cash from a mesh bag he kept in a nightstand drawer. The men continued talking as appellant followed Hendrix to the bedroom. After Hendrix removed a $20 bill from the bag and returned the bag to the drawer, the two returned to the living room.
While Hendrix then drove to Taco Bell and went through the drive-through, appellant remained behind to prepare for the interview. Hendrix was gone for "20-30 minutes, maybe longer." When he got home, appellant was in the living room, and his bags were near the bar by the kitchen.
After appellant showered and dressed for his interview, the men put appellant's bags and a suitcase in the trunk of Hendrix's car. Hendrix dropped appellant off at the interview, and then went to the nearby Auto Zone to have his battery checked.
At the Auto Zone, Hendrix learned that he needed a new battery. So he went home to get cash from the bag in the nightstand drawer. But when Hendrix opened the bag, he discovered that only some loose change remained of approximately $900 he had in there.
After he searched in and around the nightstand to no avail, Hendrix thought appellant might be playing a trick on him. So he jumped in his car, went back to the restaurant where appellant was to have his interview, and confronted appellant. At that point, approximately two and a half hours had elapsed since he dropped appellant off.
Hendrix told appellant that he knew appellant saw the money in the bag, and asked if he had moved it. Appellant became defensive and said that he "didn't" and "wouldn't" take anything from Hendrix. Because Hendrix demanded that appellant accompany him to look for the money, the two men left the restaurant. When they arrived at Hendrix's house, Hendrix began "tearing [his] complete townhouse apart" to make sure that he had "exhausted everything" before he accused appellant, who he considered a friend. As he did so, appellant stood in the doorway and said, "I don't know why you're doing this. I wouldn't take anything from you."
When the house search proved unsuccessful, Hendrix told appellant that he wanted to look in appellant's bags. The bags consisted of a suitcase, a duffle bag, and two trash sacks. At that point, appellant became "really aggravated" and defensive. When Hendrix told appellant he was either going to search the bags or call the police, appellant relented.
Hendrix began by going through the trash bag containing appellant's blanket and pillow, but he did not find anything. Hendrix then began to search the suitcase. But when he was halfway through, appellant started putting things back inside and said, "[S]ee it's not in there." When Hendrix pulled out his phone and called 911, appellant grabbed all of the bags except the one with the blanket and pillow and walked away saying, "I can't be here when the cops get here. I can't deal with the cops."
B. Events After the Theft.
Later, a police officer arrived, and Hendrix told him what had happened. The officer drove around the neighborhood and checked the bus stops, but could not find appellant.
Another officer, Jesse Muse, was subsequently assigned to the case. Officer Muse reviewed the police report that was prepared on the day of the crime, and contacted Hendrix. Hendrix told him that he had discovered some additional property that was missing from his apartment, including some jewelry and clothing. Hendrix told him that appellant might be at The Bridge homeless shelter. Thereafter, Officer Muse contacted the shelter numerous times but was unable to locate appellant.
Officer Muse spoke with Hendrix again approximately twenty days after the theft. Hendrix told the officer that appellant had contacted him and he told appellant the police were looking for him.
Eventually, Officer Muse contacted Hendrix to arrange for him to view a photo line-up at which Hendrix identified appellant with one hundred per cent certainty.
Officer Muse also checked a pawn shop data base, but he was unable to locate the items Hendrix had reported missing.
Furthermore, Officer Muse found nothing to indicate that the owner or manager of Hendrix's condominium entered the property on the day of the theft.
In addition, Hendrix testified that he lives in a gated community, and his front door was locked when he took appellant to the restaurant. He always locks his door, and accesses his home through the garage. He keeps the garage door opener in a drawer in his nightstand rather than in his car. When he returned home to get money out of the bag to pay for the battery, the garage door opener was still in the drawer.
Moreover, although Hendrix's sister has a key to his home for emergency purposes, she had not visited that condominium before the theft.
A friend of Hendrix's, Tyrese, visited Hendrix's home once when appellant was there, but Tyrese did not have a key and was not allowed to come and go from the home.
Hendrix had no reason to believe that anyone else had been in his apartment the day his property was taken.
Prior to the incident, Hendrix had allowed appellant to wear some of his clothes for interviews because the two men were the same size. Hendrix would also let appellant use his credit card to buy food on occasion. He left appellant alone at his house because he trusted him.
The insurance company valued Hendrix's missing property at around $4,300. Hendrix had to pay a $500 deductible, and recovered approximately $3,800 from the insurance company. Hendrix affirmed that he did not give appellant permission to take the money or his other property.
Appellant and Hendrix still had some limited contact via telephone and Facebook after appellant was arrested. Appellant tried to persuade Hendrix to drop the charges and said, "I can't believe you did this."
Appellant was indicted for theft of property valued between $1,500 and $20,000. But the jury found him guilty of the lesser included offense of theft of property valued between $500 and $1,500. The trial court assessed punishment at one year in the county jail and $500 in restitution.
II. Analysis
In two issues, appellant asserts that the trial court erred in denying his motion for a directed verdict and that the evidence is insufficient to support his conviction. Specifically, appellant argues that the State's case was based on the "mere opportunity to steal," and there is "no direct evidence" to establish criminal intent or the other elements of the offense. See e.g., Thomas v. State, 807 S.W.2d 803, 807 (Tex. App.—Houston [1st Dist.] 1991) (opportunity alone insufficient to establish robbery).
At the close of the State's evidence, defense counsel moved for a directed verdict and argued that there was no evidence that appellant appropriated goods, intended to deprive the owner of the goods, or possessed the goods. --------
A challenge to the denial of a directed verdict is essentially a challenge to the sufficiency of the evidence. See Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). We therefore review appellant's issues in tandem.
A. Standard of Review and Applicable Law.
Under a legal sufficiency standard of review, appellate courts view the evidence in the light most favorable to the verdict and 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). When performing this review, an appellate court must bear in mind that it is the factfinder's duty to weigh the evidence, to resolve conflicts in the testimony, and to make reasonable inferences "from basic facts to ultimate facts." Id.; see also TEX. CODE CRIM. PROC. ANN. art. 36.13 (explaining that "jury is the exclusive judge of the facts").
Appellate courts must "determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict." Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). In so doing, courts presume that conflicting inferences were resolved in favor of the conviction and defer to that resolution. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). In addition, courts must bear in mind that "direct and circumstantial evidence are treated equally" and that "[c]ircumstantial evidence is as probative as direct evidence in establishing the guilt of an actor" and "can be sufficient" on its own "to establish guilt." Kiffe v. State, 361 S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd). More specifically, the elements of theft may be proved by direct or circumstantial evidence. Christensen v. State, 240 S.W.3d 25, 32 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd) (op. on reh'g).
To prove theft under Texas Penal Code section 31.03(a), the State must prove that a defendant "unlawfully appropriates property with intent to deprive the owner of property." TEX. PENAL CODE ANN. § 31.03(a) (West Supp. 2014). Appropriation of property is unlawful if it is without the owner's effective consent. Id. § 31.03(b).
A person acts "intentionally" when it is his conscious objective or desire to cause the result. TEX. PENAL CODE ANN. § 6.03(a) (West 2011). A jury may infer intent from any facts that tend to prove its existence, such as the acts, words, and conduct of the defendant. Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995).
Evidence of flight and attempts to cover up guilt is probative evidence of guilt. See Clayton v. State, 235 S.W.3d 772, 780 (Tex. Crim. App. 2007); Robinson v. State, 236 S.W.3d 260, 267 (Tex. App.—Houston [1st Dist.] 2007, pet ref'd).
B. Is the circumstantial evidence sufficient to show more than an opportunity to steal?
Because no direct evidence establishes appellant's guilt, we must determine whether the circumstantial evidence supports a finding that he in fact took the items and that he intended to commit theft or whether the evidence shows only a mere opportunity to steal.
Here, the cumulative force of the circumstantial evidence demonstrates more than just "mere opportunity." Appellant saw the cash when Hendrix removed money from the bag, and had access to the property for approximately thirty minutes when Hendrix went to Taco Bell. No one else entered Hendrix's house between when appellant saw the cash and when Hendrix discovered that the property was missing. Then, there was only a short interval between the time Hendrix's return from Taco Bell and the time appellant's bags were placed in Hendrix's trunk.
Only two and a half hours later, Hendrix discovered the money was missing. When he arrived home and made this discovery, Hendrix's home was still in the same locked, secure position he left it in. Nobody else had entered the home in the meantime.
When Hendrix confronted appellant, appellant became defensive and aggravated and would not allow Hendrix to continue searching his bags. Then, when Hendrix contacted the police, appellant left the premises. Subsequent efforts to locate appellant at the shelter where he was registered were unsuccessful.
The evidence also demonstrated that appellant was having financial difficulties, and therefore had a motive to take the property. While the prosecution is not required to prove motive and it is not an element of any crime, evidence of motive is relevant as a circumstance tending to prove guilt. Russo v. State, 228 S.W.3d 779, 794 (Tex. App.—Austin 2007, pet. ref'd).
From these facts, a rational jury could infer both that appellant took Hendrix's property without Hendrix's consent and that he had the requisite intent when he did so. Therefore, viewing this evidence in a light most favorable to the verdict, we conclude that the evidence is sufficient to support the conviction.
For the above reasons, we resolve appellant's two issues against him and affirm the trial court's judgment.
/Bill Whitehill/
BILL WHITEHILL
JUSTICE Do Not Publish
TEX. R. APP. P. 47
150042F.U05
JUDGMENT
On Appeal from the 366th Judicial District Court, Collin County, Texas
Trial Court Cause No. 366-80244-2013.
Opinion delivered by Justice Whitehill. Justices Fillmore and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered January 27, 2016.