Opinion
No. 10-04-00063-CR
Opinion delivered and filed April 13, 2005. DO NOT PUBLISH.
Appeal from the 54th District Court, McLennan County, Texas, Trial Court # 2003-866-C.
Affirmed as reformed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
Lisa Ann Soria was charged by indictment with two counts of theft of currency, $1,500 or more but less than $20,000. Tex. Pen. Code Ann. § 31.03 (Vernon 2003). Prior to jury selection, the State waived count one. Soria pled not guilty to count two, but a jury found her guilty. After Soria pled true to two enhancement paragraphs and testified during the punishment phase, the jury assessed her punishment at 20 years in prison and a $10,000 fine. The trial court entered a judgment that Soria was convicted on counts one and two and ordered that her sentence run consecutively with a prior conviction. Soria appeals in four issues: (1) legal and (2) factual sufficiency of the evidence to prove the element of "lack of effective consent"; (3) fundamentally defective jury charge that did not instruct on the element of "lack of effective consent;" and (4) error in including count one of the indictment in the judgment. We will overrule issues one, two, and three and will sustain issue four. We will affirm the judgment as reformed under issue four.
Unlike count two, count one included the element of "without the effective consent of the owner, namely, by deception."
BACKGROUND
Soria began a "relationship" with Frankie Lynch, who was 93 years old, in late 2002. By June, 2003, two of Lynch's bank accounts were substantially depleted. Twenty checks totaling $11,363 were written to Soria between January, 2003 and June, 2003. Count two of the indictment reads:And it is further presented in and to said Court that the said LISA ANN SORIA in the County of McLennan and State aforesaid on or about or between the 3rd day of January, A.D. 2003 and the 29th day of June, A.D. 2003, did then and there unlawfully appropriate, by acquiring or otherwise exercising control over, property, to-wit: United States Currency, of the value of $1,500 or more but less than $20,000, from FRANK LYNCH, the owner thereof, with intent to deprive the owner of the property.The jury charge instructions and definitions read:
Our law provides that a person commits the offense of theft if he unlawfully appropriates property with intent to deprive the owner of such property.
"Appropriate" as used herein means to acquire or otherwise exercise control over property other than real property. Appropriation of property is unlawful if it is without the owner's effective consent.
. . .
"Effective consent" includes consent by a person legally authorized to act for the owner. Consent is not effective if:
(1) given by a person who by reason of youth, mental disease or defect, or intoxication is known by the actor to be unable to make reasonable decisions; or
(2) given by a person who by reason of advanced age is known by the actor to have a diminished capacity to make informed and rational decisions about the reasonable disposition of property.The application paragraph of the jury charge reads:
Now, if you find from the evidence beyond a reasonable doubt that on or about or between the 3rd day of January, 2003, and the 29th day of June, 2003, in McLennan County, Texas, the defendant, Lisa Ann Soria, did then and there unlawfully appropriate, by acquiring and otherwise exercising control over property, to-wit: United States Currency, of the value of $1,500 or more but less than $20,000, from the owner, Frank Lynch, with the intent to deprive the owner of the property, then you will find the defendant guilty of theft as charged in the indictment.
THEFT
"A person commits [theft] if he unlawfully appropriates property with intent to deprive the owner of property." Tex. Pen. Code Ann. § 31.03(a). The statute defines three ways in which an appropriation is unlawful, including "without the owner's effective consent." Id. § 31.03(b). Thus, the elements constituting an offense under section 31.03 are: (1) a person, with the intent to deprive the owner of property, (2) unlawfully appropriates that property, (3) without the effective consent of the owner. Thomason v. State, 892 S.W.2d 8, 10 (Tex.Crim.App. 1994). The Court of Criminal Appeals has also stated that "the crucial element of theft is the deprivation of property from the rightful owner, without the owner's consent, regardless of whether the defendant at that moment has taken possession of the property." Stewart v. State, 44 S.W.3d 582, 589 (Tex.Crim.App. 2001).ISSUE ONE: LEGAL SUFFICIENCY
We measure sufficiency of the evidence against the elements of the offense as defined by a "hypothetically correct jury charge" for the case. Gollihar v. State, 46 S.W.3d 243, 252 (Tex.Crim.App. 2001) (citing Malik v. State, 953 S.W.2d 234, 238 (Tex.Crim.App. 1997)). In determining whether the evidence is legally sufficient to support the verdict, we view the evidence in the light most favorable to the verdict, asking whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Weightman v. State, 975 S.W.2d 621, 624 (Tex.Crim.App. 1998) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979)). The trier of fact is the sole judge of the weight and credibility of the testimony. Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). We act only "as a final, due process safeguard ensuring . . . the rationality of the factfinder." Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988). Soria argues that the evidence is legally insufficient because it does not establish that she appropriated any money from Lynch "without his consent." She points out that Lynch testified that Soria did not trick him into giving her money and that she did not steal any money from him. Thus, she argues that Lynch's lack of consent cannot be inferred from other evidence. The State argues that it proved "without effective consent" beyond a reasonable doubt through testimony by Lynch, although contradictory, and other witnesses. Here, the State had to prove beyond a reasonable doubt that: (1) Soria, with the intent to deprive Lynch of his property, (2) unlawfully appropriated that property, (3) without the effective consent of Lynch. See TEX. PEN. CODE ANN. § 31.03(a); Stewart, 44 S.W.3d at 589; Gollihar, 46 S.W.3d at 252; Thomason, 892 S.W.2d at 10. In a theft case, when the owner testifies and fails to state that the property was taken without his consent, lack of consent may not be inferred from the other evidence. Sizemore v. State, 496 S.W.2d 80, 81 (Tex.Crim.App. 1973). Lynch testified that: (1) Soria never tricked him into signing any checks; (2) Soria did not steal any money from him; (3) he did not give Soria "very much" money; (4) he did not give Soria $11,000; (4) he intended to help her out "[a] little bit. A very little."; (5) he doesn't think he wrote Soria 20 checks or he doesn't remember giving her 20 checks; (6) he knew Soria as a person who cleaned his house and he gave her money to help her out; and (7) he never gave Soria money for gas, insurance, or car payments. Lynch's attorney, Jim Gailey, testified that Lynch and Soria came to his office in May, 2003, and requested a modification to Lynch's will to leave his house to Soria. Gailey had a hard time understanding Lynch, and Lynch had trouble remembering Soria's name. Gailey determined that Lynch did not have the testamentary capacity to make this legal decision. A police officer testified that Lynch reacted with "an air of disbelief," when he informed Lynch of how much money was taken from him. An employee of the Texas Department of Family and Protective Services testified that during her investigation, Lynch never told her that he intended to give his money to Soria. This employee also testified that Lynch was unaware that Soria had taken money or that his bank accounts were depleted. Contrary to Soria's assertion, the jury could consider all of the evidence presented at trial, because on direct examination, Lynch essentially testified that his money was taken without his consent. See Sizemore, 496 S.W.2d at 81. Although there is contradictory testimony, viewing all of the evidence in the light most favorable to the verdict, we find the evidence legally sufficient to support the theft conviction. See Weightman, 975 S.W.2d at 624; Santellan, 939 S.W.2d at 164; Moreno, 755 S.W.2d at 867.We overrule issue one.
ISSUE TWO: FACTUAL SUFFICIENCY
For a factual sufficiency review, we consider all of the evidence in a neutral light and ask whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). There are two ways in which the evidence may be factually insufficient:First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand.Id. This standard acknowledges that evidence of guilt can "preponderate" in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Id. Stated another way, evidence supporting guilt can "outweigh" the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard. Id. We must remain cognizant of the jury's role and unique position — one that this court is unable to occupy. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). Therefore, we give "appropriate deference" to the jury's evaluation of contradictory evidence because resolution often turns on an evaluation of credibility and demeanor. See id. The jury determines the credibility of the witnesses and may "believe all, some, or none of the testimony." Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). The evidence is not factually insufficient merely because the jury resolved conflicting views of evidence in favor of the State. See Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App. 1997). Soria argues that the evidence was factually insufficient to support lack of consent by Lynch. She argues that Lynch's testimony that he didn't remember how much money he gave Soria, and that he wasn't sure how many checks he had written to Soria, is greatly outweighed by his testimony that Soria never stole money from him, and she never tricked him out of any money. The State argues that a neutral review of all of the evidence demonstrates that the proof is not so weak as to undermine confidence in the jury's determination. Viewing all of the evidence in a neutral light and without the prism of the "in the light most favorable to the prosecution" construct, the record does not demonstrate that the proof of "lack of consent" is too weak to support the verdict, nor is the contrary evidence strong enough that we can say the beyond-a-reasonable-doubt standard could not have been met. See Zuniga, 144 S.W.3d at 484-85; Johnson, 23 S.W.3d at 8; Cain, 958 S.W.2d at 410; Chambers, 805 S.W.2d at 461.
We overrule issue two.
ISSUE THREE: JURY CHARGE ERROR
Soria argues that the application paragraph of the jury charge is fundamentally defective because it eliminates the requirement that the State prove "without the effective consent of the owner." She argues that this error caused her egregious harm because the jury was allowed to convict her of theft without finding that she appropriated Lynch's money without his effective consent. The State argues "no charge error" because the charge sets forth all of the elements of the offense of theft and all of the elements alleged in the indictment. In the alternative, the State argues that any error did not result in egregious harm to Soria. Even though Soria did not raise this objection at trial, she may raise this issue for the first time on appeal, but she can obtain a reversal only if an error in the charge resulted in egregious harm. Bluitt v. State, 137 S.W.3d 51, 53 (Tex.Crim.App. 2004) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985)); Phillips v. State, 72 S.W.3d 719, 721 (Tex.App.-Waco 2002, no pet.). We have held that a jury charge is fundamentally defective when it:(1) authorizes conviction without proof of all the requisite elements of the offense;
(2) authorizes conviction on a different theory than alleged in the indictment;
(3) authorizes conviction on the theory alleged in the indictment and on additional unalleged theories; or
(4) authorizes conviction for conduct which is not an offense.Flores v. State, 48 S.W.3d 397, 402 n. 2 (Tex.App.-Waco 2001, pet. ref'd) (citing Cumbie v. State, 578 S.W.2d 732, 733-34 (Tex.Crim.App. 1979)). The jury charge properly set forth the requisite elements of the offense: (1) intent to deprive the owner of his property, (2) unlawfully appropriated that property (defined in the charge as "without the owner's effective consent"); and (3) without the effective consent of the owner (defined in the charge). The charge tracked the indictment, and the charge does not authorize a conviction on any additional theories not alleged in the indictment. The charge also did not authorize conviction for conduct that is not an offense. Thus, we do not find jury charge error, and we need not perform a harm analysis. See id. at 402 n. 2.
We overrule issue three.
ISSUE FOUR: COUNT ONE
Soria argues, and the State agrees, that count one of the indictment was waived prior to trial. Thus, the judgment should not have included a reference to count one. We sustain issue four and reform the judgment to state:. . .
OFFENSE CONVICTED OF: THEFT OVER $1500 UNDER $20,000 — ENHANCED — COUNT II
. . .
DATE OFFENSE COMMITTED: ON OR ABOUT OR BETWEEN JANUARY 3, 2003 AND JUNE 29, 2003 ON COUNT II
. . .
PUNISHMENT AND PLACE OF CONFINEMENT:
20 YEARS IN THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION AND A FINE OF $10,000 ON COUNT II