Jimmie Mark Payne v. State

11th Court of Appeals Eastland, Texas Opinion Jimmie Mark Payne Appellant Vs. No. 11-03-00076-CR – Appeal from Taylor County State of Texas Appellee The jury found Jimmie Mark Payne not guilty of burglary of a habitation as charged in count one of the indictment but found him guilty of theft as charged in count two of the indictment. The jury also found him guilty of the offense of unauthorized use of a motor vehicle as charged in count three of the indictment. The State alleged two prior felony convictions in connection with each count in the indictment. Appellant pleaded true to the enhancement allegations, and the trial court assessed appellant’s punishment at confinement for 18 years for each offense, to run concurrently. We affirm. In four issues, appellant argues that the evidence is neither legally nor factually sufficient to support either of the convictions. In appellant’s last two issues, he challenges the trial court’s rulings in matters pertaining to alleged comments upon appellant’s post-arrest silence. To determine if the evidence is legally sufficient, we must review all of 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 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000). In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak as to render the conviction clearly wrong and manifestly unjust or whether the evidence supporting guilt, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of the contrary evidence as to render the conviction clearly wrong and manifestly unjust. Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Goodman v. State, 66 S.W.3d 283 (Tex.Cr.App.2001); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996). We review the fact finder’s weighing of the evidence and cannot substitute our judgment for that of the fact finder. Cain v. State, supra; Clewis v. State, supra. Due deference must be given to the jury’s determination, particularly concerning the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1 (Tex.Cr.App.2000); Jones v. State, 944 S.W.2d 642 (Tex.Cr.App.1996), cert. den’d, 522 S.W.2d 832 (1997). The court has the authority to disagree with the fact finder’s determination “only when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice.” Johnson v. State, supra at 9. After Tammy Gonzales returned home from her niece’s wedding, she went to bed and went to sleep. While Gonzales slept, police officers in Comanche, some 130 miles away, were involved in a high-speed chase involving appellant, who, according to the officers, was driving Gonzales’s white 1999 Monte Carlo. At 2:45 a.m., Comanche Police Officer David Varner received a dispatch that a vehicle was about to enter Comanche at a high rate of speed. Officer Varner set up his radar unit; and, when the vehicle was within working distance of the radar unit, he “clocked” the vehicle running at 101 miles per hour in a 55-mile-per-hour zone. Officer Varner chased the vehicle until the driver drove into a dead-end street and through the yard of a residence; the vehicle crashed into a thicket of brush and trees. Officer Robert Kluge was in another patrol car behind Officer Varner and provided backup for him. When the Monte Carlo came to a stop after the crash, the driver got out and began to run. The officers chased him to a ravine or creek bed and then down the creek bed but did not find him immediately. The sound of barking dogs at a nearby residence led the officers to a vehicle parked at that residence. Appellant was in the back seat of the vehicle partially covered by a blanket; the officers arrested him. Appellant had various items of jewelry in his pocket. Gonzales later identified some of the jewelry as property that had been taken from her house. Both of the officers involved in the high-speed chase testified that appellant was the driver of Gonzales’s Monte Carlo. There were no other occupants of the car. No one could have gotten out of the passenger side of the Monte Carlo after appellant crashed it into the trees because the passenger side of the vehicle was lodged against the trees. The vehicle was not “hot-wired” but, rather, was started and operated with a key. At 3:00 a.m., officials with the Comanche Police Department telephoned Gonzales and told her that her vehicle had been taken. She looked in her driveway and confirmed that her vehicle was gone. Gonzales had last seen her Monte Carlo in her driveway before she went to bed. She kept a spare set of keys to her vehicle in her house. It was Gonzales’s practice to keep a window to her house unlocked so that her young daughters could reach in and unlock the door to the house in the event that they were locked out during the day. Appellant’s niece lived in the neighborhood and was one of Gonzales’s daughter’s playmates. There were no signs of forced entry at Gonzales’s home. The extra set of keys was missing from the house. Appellant called Maggie Turner as a witness. On the night before the early morning hours when the officers chased and arrested appellant, Turner and appellant, who were just friends at the time but who were later “romantically involved,” went to The Crossing Club in appellant’s sister’s vehicle. At about 11:00 to 11:30 p.m., a person by the name of Benny Sierra talked to them. Later, appellant, Turner, and Sierra went outside. Sierra sold some jewelry to appellant and drove away in a white Monte Carlo. Turner could tell that the jewelry was stolen. Appellant and Turner later left the club and stopped at a convenience store. Sierra was at the store in the white Monte Carlo. Apparently, Sierra was not able to drive; and appellant told Turner to take his sister’s vehicle to his sister’s house, that he would take Sierra home in the white Monte Carlo, and that he would pick her up at his sister’s house. Turner drove the vehicle to appellant’s sister’s house, but appellant never came after her. In December 2002, a month before the trial began, appellant assaulted Turner. In her report to the police, Turner said that she was afraid of appellant. She told appellant’s attorney about Sierra approximately “a week, two weeks ago at most” before the trial of the case. Although Turner and appellant were in a close relationship, she had not heard about this case until appellant’s attorney’s office contacted her “a week, two weeks ago at most” before the trial. The officers chased and arrested appellant in the early morning hours of December 17, 2000; the trial began on January 13, 2003. Neither Officer Varner nor Officer Kluge, nor Detective Rodney Holder (the Abilene Police Department detective who was investigating the case), ever heard anything during their investigation about anyone named Benny Sierra until the time of trial. Turner neither saw nor heard of Sierra after that night at the club. A private detective attempted to find Sierra for appellant, and he could not. Appellant argues that he could not be convicted of the offense of theft because there was testimony that the officers believed that whoever broke into the house was the person who stole the jewelry. Therefore, because the jury found appellant not guilty of the burglary offense, he could not be convicted of theft under this evidence. We disagree. TEX. PENAL CODE ANN. § 31.03 (Vernon Supp. 2004) provides in relevant part: (a) a person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property. (b) Appropriation of property is unlawful if: (1) it is without the owner’s effective consent; [and] (2) the property is stolen and the actor appropriates the property knowing it was stolen by another. Evidence showing that an accused exercised control over property without the consent of the owner but with the intent to deprive the owner of the property is enough to prove theft. Receiving property from another and knowing it to be stolen by him establishes the offense of theft. Unexplained possession of recently stolen property is sufficient to prove these elements. Chavez v. State, 843 S.W.2d 586 (Tex.Cr.App. 1992). The jury was the sole judge of the credibility of the witnesses and the weight to be given their testimony, and it was free to believe or disbelieve all or any part of the testimony. TEX. CODE CRIM. PRO. ANN. art. 38.04 (Vernon 1979); Beardsley v. State, 738 S.W.2d 681, 684 (Tex.Cr.App.1987). The evidence shows that appellant was in possession of recently stolen property and that the owner of the property had given no one permission to possess the property. We find that the evidence is both legally and factually sufficient to support appellant’s theft conviction. We overrule appellant’s first and second issues on appeal. In Issue Nos. 3 and 4, appellant argues that the evidence is legally and factually insufficient to support his conviction for unauthorized use of a motor vehicle. Again, we disagree. TEX. PENAL CODE ANN. § 31.07(a) (Vernon 2003) provides: (a) A person commits an offense if he intentionally or knowingly operates another’s...motor-propelled vehicle without the effective consent of the owner. The officers testified that appellant was the one driving Gonzales’s vehicle some 130 miles away in Comanche County at speeds of over 100 miles per hour. Gonzales did not give appellant consent to drive the vehicle. Even if there could be some inference that appellant thought that the vehicle belonged to Sierra, that appellant was under the mistaken belief that Sierra owned the vehicle, and that he had Sierra’s consent, the jury was free to reject this inference. McQueen v. State, 781 S.W.2d 600, 605 (Tex.Cr.App.1989). Viewing the evidence in the light most favorable to the guilty verdict, we conclude that any rational trier of fact could have found the essential elements of the offense of unauthorized use of a motor vehicle beyond a reasonable doubt. Further, reviewing all of the evidence in a neutral light, we determine that the evidence supporting guilt is not so weak as to render the conviction for unauthorized use of a motor vehicle clearly wrong and manifestly unjust nor is the evidence supporting guilt so greatly outweighed by the overwhelming weight of the contrary evidence as to render the conviction clearly wrong and manifestly unjust. Vasquez v. State, supra; Goodman v. State, supra; Cain v. State, supra; Clewis v. State, supra. Appellant’s third and fourth issues on appeal are overruled. Appellant’s fifth and sixth issues on appeal pertain to claimed violations of his right to remain silent under TEX. CONST. art. I, § 10; he makes no claims under the United States Constitution. Appellant’s complaints in his fifth issue on appeal center around this exchange during the State’s cross-examination of Turner concerning Sierra: Q. It would be odd, wouldn’t it, that some four hours later when [appellant was] arrested he can’t remember a guy’s name, [Sierra]? A. That’s -- [DEFENSE COUNSEL]: I object to this line of cross examination as infringing upon the Defendant’s right to remain silent. THE COURT: Overrule the objection. Q. Isn’t it odd, ma’am, that if [Sierra] and [appellant] are such good friends that they’re talking over some kind of alleged transaction at the Crossroads at 11:00, three hours later when this man’s arrested in Comanche, he can’t remember the other guy’s name? [DEFENSE COUNSEL]: Your Honor, may I have the same objection as a running objection? THE COURT: Yes, you may. Q. You find that odd? A. Yes, sir, I guess. Article I, section 10 of the Texas Constitution protects a defendant from having his post-arrest silence, either before or after he has received warnings, used against him. Sanchez v. State, 707 S.W.2d 575, 582 (Tex.Cr.App.1986). However, an accused may waive this right. Nathan v. State, 788 S.W.2d 942, 944-45 (Tex.App. – Fort Worth 1990, no pet’n). The record shows that the following exchange took place earlier in the cross-examination of Turner: Q. Do you think it odd that [appellant] would not remember [Sierra] later when he talked to the police officer? A. I wasn’t there during that. Q. Did you ever meet a guy – and I’m trying to work off your memory here – named Chris that evening? A. No, sir. Q. You never heard his name mentioned, did you? A. No. Q. But you would have this jury believe that [Sierra] and [appellant] were such good friends that he could call his name off just like that. Is that your testimony? A. Yes, sir. Earlier during the trial, the following exchange already had taken place between the State and Officer Varner with no objection: Q. Sir, have you ever during the time you were in the company of [appellant] heard the name Benny Sierra? A. No, sir. Q. To this day have you ever heard of that name before? A. That’s the first I have heard of it. Further, Officer Kluge and Detective Holder both testified earlier without objection that they had never heard the name “Benny Sierra” from anyone during their investigation. Even if the trial court erred when it overruled appellant’s objection, that testimony had already been placed before the jury without objection. Error in the admission of evidence is cured when the same evidence is already before the jury without objection. Nathan v. State, supra. Appellant has waived any error, and his fifth issue on appeal is overruled. Ethington v. State, 819 S.W.2d 854 (Tex.Cr.App.1991). In his sixth issue on appeal, appellant complains of the following comment by the State during final argument: You could take testimony from Maggie Turner. You remember her testimony? I think she said, “Well, anybody would have known that was stolen property.” You remember that? You could take that testimony and say, yeah, [appellant], he’s guilty of theft. He had property that didn’t belong to him. That would be simple, wouldn’t it? You could take the testimony of the officers that catch him going 101 miles an hour in a 55 zone and the fact that he’s in a stolen vehicle and he knows it is stolen because he is gone. Where was he? He wasn’t out there going, hey, I got a friend that loaned me this car, was he? Appellant’s attorney objected to the argument as an impermissible comment on appellant’s right to remain silent. The trial court sustained the objection and instructed the jury to disregard pursuant to the attorney’s request, but it denied appellant’s request for a mistrial. There are four permissible areas of jury argument: “(1) summations of the evidence; (2) reasonable deductions from the evidence; (3) responses to the defendant’s argument; or (4) a plea for law enforcement.” Lagrone v. State, 942 S.W.2d 602, 619 (Tex.Cr.App.), cert. den’d, 522 U.S. 917 (1997). The argument about which appellant complains is related to evidence concerning Sierra that first came in before the jury without objection. The argument was not only a summation of the evidence presented to the jury but also a reasonable deduction from the evidence before the jury. Even though, out of an apparent abundance of precaution, the trial court sustained an objection to the argument and even though it instructed the jury to disregard the argument, the argument was proper. Because the argument was proper, Waldo v. State, 746 S.W.2d 750 (Tex.Cr.App.1988), and other similar cases upon which appellant relies, involving actual error, do not apply to the facts of this case. The trial court did not err when it refused to grant a mistrial. We overrule appellant’s sixth issue on appeal. The judgment of the trial court is affirmed. JIM R. WRIGHT JUSTICE April 8, 2004 Do not publish. See TEX.R.APP.P. 47.2(b). Panel consists of: Arnot, C.J., and Wright, J., and McCall, J.