Opinion
NO. 01-16-00839-CR
10-24-2017
JOEL ALFREDO RODRIGUEZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 208th District Court Harris County, Texas
Trial Court Case No. 1498963
MEMORANDUM OPINION
A jury convicted Joel Alfredo Rodriguez of the state jail felony of theft enhanced by two previous convictions, and assessed his punishment at nine years' confinement in the Texas Department of Criminal Justice, Institutional Division. See TEX. PENAL CODE § 31.03(e)(4). In his sole issue, Rodriguez argues that the evidence was insufficient to support his conviction. We affirm.
Background
On February 14, 2016, Alejandro Macias reported that his Chevrolet Suburban was stolen from a movie theater parking lot in Houston, Texas. According to Macias, he paid about $12,000 to $13,000 when he bought the Suburban a year and a half earlier and he estimated that it was worth about $8,000 to $10,000 when it was stolen.
At trial, Sergeant E. Arjona with the Houston Police Department testified that on February 14th, he and his partner responded to a radio call that a car was being stripped at a nearby car wash. When they arrived at the scene, he noticed several people close by and a van that was blocking the view of cars parked behind it, including a GMC truck, a Chevrolet Malibu, and Macias's truck, which was in the middle of the other three cars.
Sergeant Arjona testified that Mark Medina was standing beside the van and Ramon Morales was sitting in the van's driver's seat. Sergeant Arjona also saw Rodriguez and Jesse Esparza walking towards two women—Alexis Acosta and Valerie Villareal—who were sitting in the Malibu. Sergeant Arjona testified that he noticed Rodriguez drop something as he walked, which was later identified as a power drill. According to Sergeant Arjona, he and his partner handcuffed all of the people at the scene and put them in the back of patrol cars. Sergeant Arjona testified that when he was moving Rodriguez to the patrol car, Rodriguez handed him a drill bit and said that Morales had called and asked him to help strip a car. Sergeant Arjona testified that the stereo had been taken out of the Suburban and the steering wheel was "popped" or broken, with cables exposed. He explained that the officers found a flat screen radio and tools including pliers, a screwdriver, and a flashlight with a glass breaker in the truck which belonged to Acosta.
Macias testified that police called him and notified him that his car had been found within a couple of hours after his initial report. He went to the scene and identified the Suburban as his missing car. He told the officers the items that he had left in the car, including his Beats headset and two pairs of sunglasses. The police found items matching Macias's description in the Malibu. The State submitted photographs of the recovered items at trial.
Rodriguez was subsequently charged with engaging in organized criminal activity and the state jail felony of theft of property worth $2,500 or more but less than $30,000, namely a motor vehicle, to which he pleaded not guilty. Following the presentation of evidence, the trial judge granted Rodriguez a directed verdict on the engaging in organized criminal activity charge, and submitted the theft charge to the jury.
The jury charge authorized the jury to convict Rodriguez of felony theft either as a primary actor or under the law of parties if it found beyond a reasonable doubt that Rodriguez, with the intent to promote or assist the commission of the offense, solicited, encouraged, directed, aided, or attempted to aid the commission of felony theft. The jury convicted Rodriguez of felony theft enhanced by two previous convictions, and assessed his punishment at nine years' confinement in the Texas Department of Criminal Justice, Institutional Division. Rodriguez appealed.
Sufficiency of the Evidence
In one issue, Rodriguez argues that the evidence was legally insufficient to support his felony theft conviction.
A. Standard of Review
An appellate court evaluates sufficiency challenges to a jury's finding of guilt under a single standard: whether, after considering all the evidence in a light most favorable to the verdict, 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, 307; 99 S. Ct. 2781, 2783 (1979); Drichas v. State, 175 S.W.3d 795, 598 (Tex. Crim. App. 2005); Gonzalez v. State, 337 S.W.3d 473, 478 (Tex. App.—Houston [1st Dist.] 2011, pet ref'd). "Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004)).
On appeal, the same standard of review is used for both circumstantial and direct evidence cases. Id. The reviewing court must defer to the trier of fact to fairly resolve conflicts in testimony, weigh evidence, and draw reasonable inferences from the facts. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The reviewing court should 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. See Hooper, 214 S.W.3d at 16-17. When the record supports conflicting inferences, an appellate court presumes that the fact finder resolved the conflicts in favor of the verdict and defers to that resolution. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 326, 99 S. Ct. at 2793).
B. Applicable Law
1. Theft
A person commits the offense of theft if he unlawfully appropriates property with the intent to deprive the owner of the property. TEX. PENAL CODE § 31.03(a). To appropriate property means "to acquire or otherwise exercise control over property other than real property," or to transfer title to property to one other than the property's owner. Id. § 31.01(4). Appropriation is unlawful if it is without the owner's effective consent. Id. § 31.03(b)(1). Theft is a state jail felony if "the value of the property is $2,500 or more but less than $30,000." Id. § 31.03(e)(4).
Ordinarily, an inference of guilt may be drawn when a defendant is found in possession of recently stolen property and fails to provide a reasonable explanation for honest acquisition of the property. Uyamadu v. State, 359 S.W.3d 753, 760 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd) (first citing Hardesty v. State, 656 S.W.2d 73, 76-77 (Tex. Crim. App. 1983), then citing Poncio v. State, 185 S.W.3d 904, 905 (Tex. Crim. App. 2006)). To support that inference of guilt from the sole circumstance of possession of stolen property, the State "must establish that such possession was personal, recent, unexplained, and involved a distinct and conscious assertion of the property by the defendant." Sutherlin v. State, 682 S.W.2d 546, 549 (Tex. Crim. App. 1984).
2. Law of parties
Under the law of parties, a person is criminally responsible for an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. TEX. PENAL CODE § 7.01(a); see Trenor v. State, 333 S.W.3d 799, 806 (Tex. App.—Houston [1st Dist.] 2010, no pet.). A person is criminally responsible for the conduct of another if he acts "with intent to promote or assist the commission of the offense." TEX. PENAL CODE § 7.02(a)(2); see Trenor, 333 S.W.3d at 806.
Evidence is sufficient to sustain a conviction under the law of parties if it shows the defendant was physically present at the commission of the offense and encouraged the commission of the offense either by words or other agreement. Trenor, 333 S.W.3d at 806-07 (citing Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994)). "Since an agreement between parties to act together in common design can seldom be proved by words, the State often must rely on the actions of the parties, shown by direct or circumstantial evidence, to establish an understanding or a common design to commit the offense." Leadon v. State, 332 S.W.3d 600, 606 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (citing Miller v. State, 83 S.W.3d 308, 314 (Tex. App.—Austin 2002, pet. ref'd)). The agreement must be made before or contemporaneous with the criminal event, but in determining whether the defendant participated as a party, the court may examine the events occurring before, during, and after the commission of the offense. Leadon, 332 S.W.3d at 606 (first citing Beier v. State, 687 S.W.2d 2, 3-4 (Tex. Crim. App. 1985); then citing Miller, 83 S.W.3d at 314).
Circumstantial evidence may be sufficient to sustain a conviction as a party to an offense. Id. (first citing Wygal v. State, 555 S.W.2d 465, 469 (Tex. Crim. App. 1977), then citing Miller, 83 S.W.3d at 314). Mere presence at the scene is not enough to sustain a conviction; however, that fact may be considered in determining whether an appellant was a party to the offense. Id. (first citing Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App. 1979) (op. on reh'g), then citing Miller, 83 S.W.3d at 314).
C. Analysis
Rodriguez argues that the evidence was insufficient to support his conviction as a primary actor or under the law of parties because there was no evidence that he "entered or maintained any sort of control of the property." In support, he argues that no one was in the Suburban when the police arrived and that there was no evidence that any of the people present had the keys to the car.
Rodriguez presents no authority, nor have we found any, that requires the accused to be in possession of the keys of a stolen car or inside the stolen car to establish control. To the contrary, the case law suggests that evidence that the defendant did not have the keys to a stolen car can actually support an inference that he knew the car was stolen. See Anderson v. State, 871 S.W.2d 900, 902 (Tex. App.—Houston [1st Dist.] 1994, no pet.) (concluding evidence supported inference that appellant knew car was stolen because appellant did not have keys to car, steering wheel had been broken, and trunk had been jimmied); see also Mills v. State, No. 01-95-01091-CR, 2001 WL 83524, at *1-2 (Tex. App.—Houston [1st Dist.] Feb. 1, 2001, pet. ref'd) (not designated for publication) (concluding sufficient evidence supported unauthorized use of vehicle conviction where complainant identified car appellant was found driving as hers, steering wheel was broken, lock had been jimmied, and appellant did not have keys to car).
Additionally, our Court has held that "'[e]xercise control' is interpreted to mean the intent to deprive the owner of his property without his effective consent." Wilson v. State, 671 S.W.2d 120, 122 (Tex. App.—Houston [1st Dist.] 1984, pet. ref'd). Intent to deprive is determined from the words and actions of the accused. Id. Receiving property known to be stolen from another establishes the offense of theft in that it is tantamount to a knowing exercise of control without consent of the owner. Chavez v. State, 843 S.W.2d 586, 588 (Tex. Crim. App. 1992).
The circumstantial evidence supports an inference of Rodriguez's guilt. Rodriguez was found in the presence of Macias's Suburban approximately two hours after it was reported missing. There was no evidence that Rodriguez gave a reasonable explanation for his proximity to the stolen Suburban, which was in the process of being stripped. Sergeant Arjona testified that as he was leading Rodriguez to a patrol car, Rodriguez handed Sergeant Arjona a drill bit and admitted that Morales had asked him to help strip the car. There was also evidence that Rodriguez dropped something under the Malibu, and that police later recovered a power drill from beneath the Malibu. The Suburban's dashboard and stereo had been pulled out and Macias's belongings were taken from the inside. The items taken from the Suburban were found in the Malibu towards which Rodriguez was walking when police arrived. While Rodriguez argues that "there is a complete dearth of evidence establishing who actually drove" the stolen Suburban and "who else, if anyone, actually helped take it," the State was not required to establish that Rodriguez took part in the initial acquisition of the Suburban. See Steward v. State, 830 S.W.2d 771, 775 (Tex. App.—Houston [14th Dist.] 1992, no pet.).
Based on this unrebutted evidence, a rational jury could have concluded that Rodriguez knew that the Suburban was stolen and assisted or promoted the theft of the car with the intent to deprive Macias of his property. See Anderson, 871 S.W.2d at 902 ("There is evidence to support the inference that the appellant knew the car was stolen because it was obvious the steering column had been broken, he did not have the keys to the car, and the trunk had been jimmied."); Salazar v. State, 800 S.W.2d 959, 960 (Tex. App.—Texarkana 1990, no pet.) (affirming felony theft conviction and concluding evidence suggested defendant worked jointly with other occupants of car where defendant was passenger in recently stolen car, car's broken steering column and missing radio were obvious to all occupants, and all occupants fled when approached by police). Accordingly, we conclude that sufficient evidence supports the jury's conclusion that Rodriguez exercised enough control over the Suburban to support a conviction of felony theft as a primary actor or under the law of parties. See Johnson v. State, 476 S.W.2d 324, 326 (Tex. Crim. App. 1972) (concluding possession of part of stripped automobile was sufficient to support finding that defendant was principal in theft); Steward, 830 S.W.2d at 775 (concluding sufficient evidence supported theft of truck conviction where, one day after truck was stolen, appellant with no explanation was found in driver's seat of car containing two of truck's tires and floorjack in backseat, in immediate vicinity of stolen truck which was in process of being stripped).
We overrule Rodriguez's sole issue.
Conclusion
We affirm the trial court's judgment.
Russell Lloyd
Justice Panel consists of Chief Justice Radack and Justices Keyes and Lloyd. Do not publish. TEX. R. APP. P. 47.2(b).