Waddleton v. State

Full title: MARVIN WADDLETON, III, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Twelfth District, Tyler

Date published: Jun 21, 2006

No. 12-05-00266-CR (Tex. App. Jun. 21, 2006)

Opinion

No. 12-05-00266-CR

Opinion delivered June 21, 2006. DO NOT PUBLISH.

Appeal from the 241st Judicial District Court of Smith County, Texas.

Panel consisted of WORTHEN, C.J., DeVASTO, J., and BASS, RETIRED Justice, Twelfth Court of Appeals, TYLER, sitting by assignment.

MEMORANDUM OPINION

BILL BASS, Justice.

Appellant was charged by indictment with theft of his mother's tractor alleged to have a value of $1,500 or more but less than $20,000, a state jail felony. Prior to trial, the State gave written notice of its intent to enhance the applicable punishment range based upon Appellant's prior conviction of aggravated assault of his father. Appellant insisted upon representing himself at trial.¹ The jury convicted Appellant of the offense charged, found the State's enhancement allegation to be true, and assessed his punishment at imprisonment for ten years and a fine of $10,000, the maximum penalty allowed for the offense. Appellant raises five issues on appeal. We affirm.

1 A pro se defendant is held to the same standard as any attorney who represents a defendant. See Johnson v. State , 760 S.W.2d 277, 279 (Tex.Crim.App. 1988).

BACKGROUND

On March 26, 2003, Appellant's mother, Emily Waddleton, gave Appellant written permission to live on farm number one, one of the two farms she and her late husband had purchased, so long as he did not "interfere in life on farm number two where she lived." In the same letter, she recited that she was giving him seven old cows, four heifers, the temporary use of a truck, and $1,100 "to get his own transportation." He was given permission to "use the equipment, under the condition that he do all the maintenance on all equipment." The letter referred to as an agreement was to be reviewed at the end of each year. Appellant did not fully comply with the conditions. On October 30, 2004, Appellant's mother wrote Appellant expressing her concern and disappointment at his return to his old habits. She informed him that she was no longer working with him and that she wanted all the equipment returned to her. She did, however, say that he would be allowed to continue to use the 4610 Ford tractor and some other items. It is the 4610 Ford tractor Appellant is alleged to have stolen. Relations between Appellant and his mother continued to deteriorate. In December, Appellant's mother told him to bring the 4610 tractor back to her farm because she needed a tractor with a front end loader. Appellant refused. The Smith County Sheriff's Department helped her get the tractor, and she placed it behind a locked gate. On December 17, 2004, the tractor's front end loader was apparently used to lift the gate from its hinges, and the tractor appeared at farm number one where Appellant lived. Appellant admitted having the tractor and, once again, refused to return it. Because of Appellant's abusive language and threatening conduct, Appellant's mother obtained the tractor with the aid of the Auto Theft Task Force. Appellant was charged with theft. Rex Swain, an employee of the Noonday Tractor Auction, testified the 4610 Ford had a market value of $9,000.

CHALLENGES FOR CAUSE

In his first issue, Appellant contends the trial court erred when it did not allow him to ask the trial court to excuse six persons for cause. Appellant told the trial court that he had six challenges for cause. The trial court told him to wait until he heard the State's challenges. After granting the State's four challenges for cause, one over Appellant's objection, the trial court informed Appellant that he should not use his ten peremptory challenges on members of the panel lower than number thirty-six. The trial court did not ask Appellant about his challenges for cause, and Appellant never re-urged them. To warrant reversal for the trial court's erroneous denial of an appellant's valid challenge for cause, the appellant must show the following:

1. The voir dire of the individual venireperson was recorded and transcribed.

2. The appellant asserted a clear and specific challenge for cause clearly articulating the grounds therefor at trial.

3. After a challenge for cause was denied by the trial court, he used a peremptory challenge on that juror.

4. All peremptory challenges were exhausted.

5. When all peremptory challenges were exhausted, the appellant made a request for additional peremptory challenges.

6. Finally, the appellant must have asserted that an objectionable juror sat on the case. He should have pointed out to the trial court he was being forced to try the case with a juror seated against whom he would have exercised a peremptory challenge had he one.

Jacobs v. State , 787 S.W.2d 397, 405 (Tex.Crim.App. 1990). In this case, the trial court explained the procedure to Appellant, who said he had six challenges for cause. After the trial court excused four persons challenged for cause by the State, Appellant failed to urge any challenges for cause. Nothing in the record indicates the trial court prevented Appellant from challenging potential jurors for cause. No error is preserved, and Appellant's first issue is overruled.

LEGAL AND FACTUAL SUFFICIENCY

In his second and third issues, Appellant insists that the evidence is both legally and factually insufficient to support his conviction for theft. Standard of Review The standard for reviewing a legal sufficiency challenge is whether, viewing the evidence in the light most favorable to the jury's verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); see also Johnson v. State , 871 S.W.2d 183, 186 (Tex.Crim.App. 1993). In the relatively recent case of Zuniga v. State , 144 S.W.3d 477 (Tex.Crim.App. 2004), the court of criminal appeals explained the factual sufficiency standard.

There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be 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 [that] the guilty verdict should not stand. This standard acknowledges that the evidence of guilt can "preponderate" in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can "outweigh" the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.

Id. at 484-85. Applicable Law The elements of the offense of state jail felony theft are found in section 31.03 of the Texas Penal Code, which provides, in pertinent part, as follows:

(a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of the property.

(b) Appropriation of property is unlawful if:

(1) it is without the owner's effective consent;

. . .

(e) Except as provided by subsection (f), an offense under this section is

(4) a state jail felony if:

(A) the value of the property stolen is $1500 or more but less than $20,000 . . .

TEX. PEN. CODE ANN. § 31.03(a), (b), (e)(4)(A) (Vernon Supp. 2005). The trial judge properly charged the jury that the term "owner" means "a person who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor." See TEX. PEN. CODE ANN. § 1.07(a)(35) (Vernon Supp. 2005). When the defendant and the alleged owner have an equal right to possession of the property, the State must prove that at the time of the alleged offense, the alleged owner had a greater right to possession of the property. Freeman v. State , 707 S.W.2d 597, 603 (Tex.Crim.App. 1986). Appellant maintains that his mother had granted him permission to use the 4610 tractor in her letter of March 23, 2003 and had even reiterated that permission in her letter of October 30, 2004. Since his mother conceded that the agreement was not to be renewed until the end of the year, he argues that the evidence does not show that she had a greater right to possession of the tractor than he possessed. The record shows that the tractor, as well as the farms and equipment, was purchased by Appellant's late father during his marriage to Appellant's mother. She testified that, at his death, she became the "trustee" and "custodian" of his estate. In entering into the agreement with his mother establishing conditions for his use of the tractor, Appellant acknowledged her right to its control following the death of his father. There is also ample evidence that Appellant violated the terms of the agreement by not maintaining the property and by interfering with her life and operations on farm number two where she lived. She gave him verbal notice that she wanted the tractor returned. When all she received was abuse, she retrieved the tractor with the help of officers from the sheriff's department. Following the officer's suggestion, she placed the tractor behind a locked gate and changed the locks on the gate and fuel tanks to prevent Appellant from getting the tractor or taking any more fuel from her. Appellant used the front end loader of the tractor to lift the gate from its hinges and take it. When his mother called, he admitted he took the tractor and he refused to return it. His mother recovered the tractor only with the help of the Auto Theft Task Force. There is abundant evidence that, at the time of the taking, Appellant's mother had the greater right to possession of the tractor. The evidence is both legally and factually sufficient to support Appellant's conviction. Appellant's second and third issues are overruled.

EXTRANEOUS OFFENSES

In his fourth issue, Appellant complains that the trial court erred in allowing the State, over his objection, to present evidence at the guilt/innocence stage of the trial that he had committed the offense of possession of a controlled substance. Appellant contends that such evidence was not relevant to the issue of his guilt of theft. The State argued that Appellant had opened the door to evidence of his drug use because of the "numerous times where he has asked people about drugs and drug use." The trial court overruled Appellant's "due process" and "Fourth Amendment" objections. Constable Dale Geddie then testified that on April 6, 2005 (subsequent to the date of the charged offense), he observed Appellant driving on the wrong side of the road at dusk with the car's lights off. When he finally managed to stop Appellant, Appellant was aggressive and appeared to be under the influence of drugs. During a patdown search for weapons, Constable Geddie discovered a pill bottle containing crack cocaine in Appellant's sock. On appeal, Appellant complains that the evidence of his cocaine possession was not relevant apart from supporting an inference of character conformity and was therefore inadmissible under Texas Rule of Evidence 404 (b). His "Fourth Amendment" and "due process" objections at trial do not comport with his complaint on appeal. Therefore, nothing is preserved for review. Guevara v. State , 97 S.W.3d 579, 583 (Tex.Crim.App. 2003). Appellant's fourth issue is overruled. In his fifth issue, Appellant contends the trial court erred when it allowed the jury at the guilt/innocence phase of the trial to consider that he committed the felony offense of possession of a controlled substance when the evidence was neither legally nor factually sufficient to support the allegation. The admission of an unadjudicated extraneous offense is contingent upon clear proof that the offense was committed and that the defendant was the perpetrator. Chamberlain v. State , 998 S.W.2d 230, 235 (Tex.Crim.App. 1999). We review the trial court's application of the "clear proof" standard solely to determine whether the trial court's ruling is within the zone of reasonable disagreement. Id. Constable Geddie testified that during a search of Appellant for weapons he found what appeared to be crack cocaine in a Tylenol bottle in Appellant's sock. The laboratory report showed that the nuggets taken from Appellant contained cocaine. The evidence is sufficient to show that Appellant committed the extraneous offense. Appellant's fifth issue is overruled.

DISPOSITION

The judgment is affirmed.