Ervin Lydell Newton v. State

Opinion issued February 1, 2007 In The Court of Appeals For The First District of Texas NO. 01-05-00441-CR __________ ERVIN LYDELL NEWTON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 339th District Court Harris County, Texas Trial Court Cause No. 1017911 MEMORANDUM OPINION A jury found appellant, Ervin Lydell Newton, guilty of theft over $1,500 and under $20,000, enhanced by two prior felony convictions, and assessed punishment at six years in prison. In three points of error, appellant argues that (1) the evidence was factually insufficient to support the conviction, (2) the trial court erred in refusing to allow a jury instruction on the lesser-included offense of misdemeanor theft, and (3) the trial court erred in denying his motion for mistrial when "Officer Hulsey intentionally made unsolicited prejudicial remarks in front of the jury." We affirm. Background On December 23, 2003, Adolph Davis notified the police that his trailer and the sound and lighting systems stored inside it were stolen from his apartment parking lot. Davis also called his friends and asked them to be on the look out for his missing trailer. Five days later, Dewayne Griffin, one of Davis's friends, saw the trailer being towed behind a pickup truck. Griffin notified the police when the trailer that he was following was driven into a gated townhouse complex. Houston Police Department Officers Arnold and Nickerson arrived at the complex and questioned appellant about the trailer. Appellant explained that he had recently bought the trailer from a man in Dallas. Appellant indicated that he had a "partner" at the complex who would corroborate this story. Appellant and the officers were unable to locate the "partner." At trial, Alesha Phillips testified that, "right before Christmas," she gave appellant $300 to help purchase a trailer from "a Hispanic guy by the name of Martin." Phillips saw appellant and Martin sign some papers in front of Martin's house, and a notary was present. They did not take the trailer with them because Phillips's car did not have a trailer hitch. Davis testified that the value of the trailer is $5,000 plus the light equipment, sound system, and spare parts stored in the trailer costing $50,000. Davis later produced an invoice reflecting that he had purchased the trailer, two years earlier, for $3,600. Appellant was arrested and convicted for theft of property valued between $1,500 and $20,000. Appellant's punishment range was enhanced by two felonies for a second degree range of punishment. Sufficiency In point of error one, appellant argues that the evidence was factually insufficient to support the conviction for theft where the evidence is insufficient (1) to show that appellant stole the trailer or knew that it had been stolen and (2) for the jury to determine the value of the trailer. Standard of Review In a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if proof of guilt is so obviously weak as to undermine confidence in the jury's determination, i.e., that the jury's verdict seems "clearly wrong and manifestly unjust," or the proof of guilt, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). In performing a factual sufficiency review, we are to give deference to the fact finder's determinations, including determinations involving the credibility and demeanor of witnesses. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). We may not substitute our judgment for the fact finder's. Watson, 204 S.W.3d at 417. Finally, we must consider the most important evidence that the appellant claims undermines the jury's verdict. Sims v. State, 99 S.W.3d 600, 603-04 (Tex. Crim. App. 2003). Analysis Appellant was indicted for theft for unlawfully appropriating by "acquiring and otherwise exercising control over property, namely A TRAILER, . . . of the value of over one thousand five hundred dollars and under twenty thousand dollars, with the intent to deprive the Complainant of the property." The indictment was enhanced by two prior felony convictions for unauthorized use of a motor vehicle. Appellant complains that the evidence is insufficient (1) to show that he stole the trailer or that he knew that it was a stolen trailer and (2) for the jury to determine the value of the trailer. Stolen Trailer Appropriation of property is unlawful if it is without the owner's effective consent, or the property is stolen and the actor appropriates the property knowing it was stolen by another. Tex. Pen. Code Ann. § 31.03(b)(1), (2) (Vernon Supp. 2006). If an accused is found in possession of recently stolen property and, at the time of arrest, fails to make a reasonable explanation showing his honest acquisition of the property, the fact finder may draw an inference of guilt. Hardesty v. State, 656 S.W.2d 73, 76 (Tex. Crim. App. 1983). To draw an inference of guilt from the circumstance of possession of stolen property, the defendant must be shown to have been in possession recently after the theft. Sutherlin v. State, 682 S.W.2d 546, 549 (Tex. Crim. App. 1984). The possession must be personal, recent, and unexplained and must involve a distinct and conscious assertion of a right to the property. Todd v. State, 601 S.W.2d 718, 720 (Tex. Crim. App. 1980); Ellis v. State, 691 S.W.2d 799, 800 (Tex. App.--Houston [1st Dist.] 1985, no pet.). If the defendant offers an explanation of his possession of recently stolen property at the time of his arrest, the record must demonstrate that the explanation is either false or unreasonable before the evidence to support the conviction will be deemed sufficient. See Ellis, 691 S.W.2d at 800. Whether the defendant's explanation is false or unreasonable is a question of fact to be determined by the fact finder. Adams v. State, 552 S.W.2d 812, 815 (Tex. Crim. App. 1977). We may not substitute our judgment for the fact finder's. Watson, 204 S.W.3d at 417; Petro v. State, 176 S.W.3d 407, 409 (Tex. App.--Houston [1st Dist.] 2004, no pet.). Appellant contends that there was no evidence to support the inference that he knew that the trailer was stolen, and "[t]o the contrary, Philips [sic] supported Appellant's explanation to Officer Arnold." (1) Officer Arnold testified that appellant told him that he "got [the trailer] from a dude in Dallas," and appellant indicated that his "partner" was nearby, but they were unable to locate him. Officer Arnold testified that, after walking around the complex for quite a while, he determined that, "if there was, in fact, another, like he put it, his partner, he wasn't going to show us where he was . . . to help verify whose trailer that was." Appellant was found in possession of the trailer four days after it was stolen. Appellant represented that the stolen trailer was his, and his explanation of his possession was called into question when the officers were unable to locate his "partner" to substantiate his story that he bought it from "a dude in Dallas." (2) The evidence was factually sufficient to show that appellant's explanation was false. We hold that the evidence was sufficient to prove each element required to warrant an inference of guilt. The proof of guilt is not so obviously weak as to undermine confidence in the jury's determination. See Watson, 204 S.W.3d at 417. Trailer's Value Next, appellant argues that the evidence was factually insufficient to establish the value of the trailer because "the familiarity of the owner (Davis) and of the witness (Griffin) regarding the trailer and its contents was questionable." Appellant also complains that no photographs of the trailer were introduced at trial. (3) Value, for purposes of crimes against property, is the fair market value of the property at the time and place of the offense. Tex. Pen. Code Ann. § 31.08(a)(1) (Vernon 2003). While fair market value is not statutorily defined, it has been stated as the amount the property would sell for in cash, given a reasonable time for selling it. Keeton v. State, 803 S.W.2d 304, 305 (Tex. Crim. App. 1991). Fair market value can be proven by evidence of the retail price or sale price, by testimony of an owner's opinion of value, or by an expert opinion of value. Id. No one method has been held to be exclusive. Id. When the owner of the property is testifying as to the value of the property, he may testify as to his opinion or estimate of the value of the property in general and commonly understood terms. Sullivan v. State, 701 S.W.2d 905, 909 (Tex. Crim. App. 1986); Ray v. State, 106 S.W.3d 299, 301 (Tex. App.--Houston [1st Dist.] 2003, no pet.). Such testimony will constitute sufficient evidence for the trier of fact to make a determination as to value based on the witness's credibility. Sullivan, 701 S.W.2d at 909. This is true even in the absence of a specific statement as to "market value" or "replacement value." Id. Furthermore, if the appellant wishes to rebut the owner's opinion evidence, he must do more than merely impeach the witness's credibility during cross-examination. Id. He must offer controverting evidence as to the value of the property. Id. Davis testified that the value of the trailer is $5,000. Davis later produced an invoice reflecting that he had purchased the trailer, two years earlier, for $3,600. Davis testified that the trailer was easily identified because the vent system was torn off the roof, and he covered it with a cooking pot to keep the rain out. He said that there was also a "bad jack stand." Davis estimated that the cost to repair the vent would be $100, and the trailer's value at the time of the theft was $3,000--the amount for which he would have sold it. Appellant did not offer controverting evidence as to the value of the trailer, but he argues that, because of the condition of the trailer at the time of the theft and Davis's inability to recall the exact amount that he paid for the trailer, (4) the jury could have concluded that it was worth less than $1,500. We hold that the evidence was sufficient to prove the value of the trailer as over $1,500 at the time that it was stolen. The proof of guilt is not so obviously weak as to undermine confidence in the jury's determination. See Watson, 204 S.W.3d at 417. We overrule point of error one. Charge Error In point of error two, appellant contends that the trial court erred in overruling his objection to the jury charge which failed to contain an instruction on the lesser-included offense of misdemeanor theft. Standard of Review To determine whether appellant was entitled to a charge on the lesser-included offense, we apply a two-prong test. See Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994). First, the lesser-included offense must be included within the proof necessary to establish the offense charged. Id. Second, some evidence must exist in the record that would permit a jury rationally to find that, if the defendant is guilty, he is guilty only of the lesser offense. Id. If any evidence raises the issue that the defendant was guilty only of the lesser offense, then the charge must be given. Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App. 1992). Analysis Appellant was charged with the offense of state jail felony theft. A theft is a state jail felony if the value of the property stolen is $1,500 or more but less than $20,000. Tex. Pen. Code Ann. § 31.03(e)(4)(A) (Vernon Supp. 2006). A defendant is guilty of the requested lesser offense of Class A misdemeanor theft if the value of the property stolen is $500 or more but less than $1,500. Id. at § 31.03(e)(3) (Vernon Supp. 2006). Because the elements of the lesser offense are functionally included in the elements of the state jail felony, the first prong has been met. To satisfy the second prong, we must determine whether there is some evidence that would permit a jury to rationally find appellant guilty of only the lesser offense of Class A theft. See Mathis v. State, 67 S.W.3d 918, 925 (Tex. Crim. App. 2002). Appellant contends that he is entitled to the lesser offense because (1) Davis admitted that he was not an appraiser and initially testified that he paid $5,000 for the trailer and later testified that the trailer cost $3,600 and (2) the trailer's age and condition. As previously discussed under the sufficiency analysis, the owner is competent to testify as to value though he is not qualified as an expert on the value of the property. Sullivan, 701 S.W.2d at 908. When the owner of the property is testifying as to the value of the property, he may testify as to his opinion or estimate of the value of the property in general and commonly understood terms. Such testimony will constitute sufficient evidence for the trier of fact to make a determination as to value based on the witness's credibility. This is true even in the absence of a specific statement as to "market value" or "replacement value." Id. at 909. Furthermore, if the appellant wishes to rebut the owner's opinion evidence he must do more than merely impeach the witness's credibility during cross-examination. Id. He must offer controverting evidence as to the value of the property. Id. Davis testified that the value of the trailer is $5,000. Davis later produced an invoice reflecting that he had purchased the trailer, two years earlier, for $3,600. Davis testified that the trailer was easily identified because the vent system was torn off the roof, and he covered it with a cooking pot to keep the rain out. He said that there was also a "bad jack stand." Davis estimated that the cost to repair the vent would be $100, and the trailer's value at the time of the theft was $3,000--the amount that he would have sold it for. Appellant did not offer controverting evidence as to the value of the trailer, but he argues that, because of the condition of the trailer at the time of the theft and Davis's inability to recall the exact amount that he paid for the trailer, (5) the jury could have concluded that it was worth less than $1,500. Davis's testimony established the value of the trailer as over $1,500 at the time that it was stolen, and there was no evidence introduced from which a jury could have found appellant guilty only of the lesser-included offense. See Sullivan, 701 S.W.2d at 909. Accordingly, we hold that the trial court did not abuse its discretion in overruling appellant's objection to the charge. We overrule point of error two. Motion for Mistrial In point of error three, appellant argues that the trial court erred in overruling his motion for mistrial "when Officer Hulsey intentionally made unsolicited prejudicial remarks in front of the jury." Standard of Review A trial court's refusal to grant a mistrial is reviewed under an abuse of discretion standard. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). The trial court's decision must be affirmed if it is within the zone of reasonable disagreement. Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). A mistrial is an extreme remedy that should be utilized only when the prejudice from improper conduct during trial is incurable. Hawkins, 135 S.W.3d at 77. A mistrial is required only when the impropriety is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on the minds of the jury. Hinojosa v. State, 4 S.W.3d 240, 253 (Tex. Crim. App. 1999). There must be a showing of a manifest necessity for a mistrial. Hill v. State, 90 S.W.3d 308, 313 (Tex. Crim. App. 2002). Manifest necessity exists when the circumstances render it impossible to arrive at a fair verdict, when it is impossible to continue with trial, or when the verdict would be automatically reversed on appeal because of trial error. Id. "The question of whether a mistrial should have been granted involves most, if not all, of the same considerations that attend a harm analysis." Hawkins, 135 S.W.3d at 77. Analysis During cross-examination of Officer Hulsey from the Houston Police Department Auto Theft Division regarding the bill of sale, the following exchange transpired: Q: Now - - A: Okay. To answer your question, this is a Bill of Sale. It's saying - - Q: Don't tell me what's on here. Just tell me - - A: Well, the jury, they need to know what this is. Q: Not yet. If the person put a VIN number on here, then if this piece of paper would reflect that piece of paper, then you could get this with a VIN number on it, wouldn't it? A: No, sir. This is a Bill of Sale saying that - - Q: Did you understand what I asked you? A: Yes, sir. I'm answering your question. Give me one second. A Bill of Sale - - Q: Wait a minute. A: - - signed by Shirley Journet (6) who's in jail for falsifying these police records right now. This is falsified. This is not correct. This is a 2003 - - Appellant's Counsel: Excuse me. Excuse me. Your Honor, I'm going to object to unresponsiveness. State: I'm going to object to him not letting the witness answer his question. Appellant's Counsel: Your Honor, what somebody's in jail got to do with - - The Court: [Appellant's Counsel]- - Appellant's Counsel: I didn't ask her for that. I didn't - - The Court: [Appellant's Counsel], don't raise your voice, please. All right. Ladies and gentlemen of the jury, step into the jury room. We need to take up something outside your presence. Bailiff: All rise. (Jury retired.) Appellant's Counsel: Your Honor, we object to the answer about the person going to jail. That was unresponsive. The Court: All right. The Court will grant and sustain that objection. Do you want an instruction to disregard? Appellant's Counsel: Yes, ma'am, I want an instruction to disregard. But we feel that it was done intentionally by the officer. This is not a rookie. This officer is 19 years and she knows better than that. The Court: [Appellant's Counsel], I'm going to sustain the objection. The jury was brought back into the courtroom, and the trial court instructed the jury to "disregard the response and not consider it." Appellant's counsel then moved for a mistrial "because of the prejudicial nature of the answer." The trial court denied the request. On appeal, appellant argues that Officer Hulsey's statement "clearly was not relevant . . . [and] was highly prejudicial and solely calculated to inflame the jury, thereby violating Appellant's constitutional right to a fair trial." Appellant does not, however, describe how he was harmed by Officer Hulsey's remarks. Furthermore, the exhibit that Officer Hulsey was examining when the statement was made was not introduced into evidence. We hold that appellant has not shown that the trial court abused its discretion in overruling his motion for mistrial. We overrule point of error three. Conclusion We affirm the trial court's judgment. George C. Hanks, Jr. Justice Panel consists of Justices Taft, Alcala, and Hanks. Do not publish. Tex. R. App. P. 47.2(b). 1. We evaluate appellant's explanation at the time of arrest. See Hardesty, 656 S.W.2d at 76. Furthermore, Alesha Phillips, appellant's friend, testified that, "right before Christmas," she gave appellant $300 to help purchase a trailer from "a Hispanic guy by the name of Martin." Phillips saw appellant and Martin sign some papers in front of Martin's house, and a notary was present. They did not take the trailer with them because Phillips's car did not have a trailer hitch. This testimony contradicts and does not "support" appellant's explanation. 2. Appellant was asked for a Bill of Sale, and he told the officer that he did not have it. 3. Officer Arnold testified that "it's not a common practice" to take photographs. 4. Davis initially testified that he paid $5,000 for the trailer. He was recalled the next day after he obtained the Bill of Sale from the dealership, and he testified that he got a loan for $5,000 to purchase the trailer. The purchase price was $3,600, but with the taxes, title, license, and some accessories, Davis paid $4,010.29. 5. Davis initially testified that he paid $5,000 for the trailer. He was recalled the next day after he obtained the Bill of Sale from the dealership, and he testified that he got a loan for $5,000 to purchase the trailer. The purchase price was $3,600, but with the taxes, title, license, and some accessories, Davis paid $4,010.29. 6. Journet was the notary.