Charles, Robert Earl v. State

Affirmed and Opinion filed July 25, 2002 Affirmed and Opinion filed July 25, 2002. In The Fourteenth Court of Appeals _______________ NO. 14-01-00802-CR _______________ ROBERT EARL CHARLES, Appellant V. THE STATE OF TEXAS, Appellee _____________________________________________________ On Appeal from the 176th District Court Harris County, Texas Trial Court Cause No. 854,396 _____________________________________________________ O P I N I O N Robert Earl Charles appeals a conviction for theft of property over $1,500 and under $20,000 on the grounds that the trial court: (1) erred in refusing his request to submit an accomplice witness instruction to the jury; (2) erred in refusing appellant’s request for an instruction on the lesser-included offense of Class A misdemeanor theft; and (3) committed egregious error by failing to include the statutory definition of when appropriation of property is unlawful in the jury charge. We affirm. Facts and Procedural History On August 16, 2000, appellant called Apollo’s Moon Walk (“Apollo’s”) to rent a boxing ring moon walk and the matching oversized boxing gloves.[1] That same day, complainant, Charlotte Santana, and her husband, Stanley Santana, took the moon walk to 9102 Talton and there met with appellant. Appellant gave Mr. Santana two $200 checks, one for the deposit and one for the rental fee. Mr. Santana noticed that the checks bore a Hispanic surname. When Mr. Santana questioned appellant about the surnames, appellant assured Mr. Santana that the checks belonged to his sister-in-law and that he was coordinating the rental for her. Appellant and Mr. Santana agreed that the Santanas would pick up the moon walk the next morning. When the Santanas arrived to pick up the moon walk, it was no longer there. However, they learned where appellant worked and were in route to his workplace when they noticed their boxing gloves in front of a day care center. Mr. Santana called the Houston Police Department. After Officer Davis arrived at the day care center, he spoke with the owner of the day care, Beverly Morris. She told the Officer that two men attempted to sell her the moon walk for $200 and that appellant claimed that the sale was due to his going out of business. Morris also testified that when she attempted to call Apollo’s, the phone just rang and she received no answer thereby confirming appellant’s story for Morris that he was going out of business. However, upon being informed that the moon walk belonged to the complainant, Morris had Mr. Santana take the moon walk down and stopped payment on the check she had written to appellant for the moon walk. Later, Morris identified appellant in a photospread. On September 21, 2000, appellant was charged by indictment with theft for the unlawful appropriation of property over $1,500 but under $20,000, a state jail felony. He entered a plea of not guilty, and the jury found him guilty. Appellant pleaded not true to an enhancement charge, and the jury returned a verdict of true, enhancing the state jail felony conviction to a third degree felony, for which the jury assessed punishment at 8 years imprisonment and a $3,500 fine. Accomplice Witness Instruction In his first point of error, appellant contends that the trial court erroneously denied his request to instruct the jury to determine whether Beverly Morris was an accomplice witness as a matter of fact. Specifically, he claims that Morris’s testimony indicated that she knew she was purchasing stolen goods from appellant. He argues that this testimony raised an issue as to whether Morris was an accomplice to the theft and he was entitled to an accomplice witness instruction. In reviewing charge error on appeal, we must first determine whether error exists in the jury charge; and second, we must determine whether sufficient harm was caused by the error to require reversal. Mann v. State, 964 S.W.2d 639, 641 (Tex. Crim. App. 1998). However, whether jury error exists depends upon whether appellant was entitled to an accomplice witness instruction. See Medina v. State, 7 S.W.3d 633, 641 (Tex. Crim. App. 1999). When the parties at trial present conflicting evidence, and it is not clear whether the witness is an accomplice, the jury must initially determine whether the witness is an accomplice as a matter of fact and should be so instructed with instructions defining the term accomplice. Id. One is an accomplice if he participates before, during, or after the commission of a crime and can be prosecuted for that offense as the defendant or for a lesser-included offense. Id. Mere presence during the commission of the crime, knowledge about the crime and failure to disclose it, or even concealment of the crime is not sufficient to render a person an accomplice. Id. Nor does a witness’s complicity with the accused in the commission of a different, but related, offense make him an accomplice to the crime for which the accused is on trial. Creel v. State, 754 S.W.2d 205, 213 (Tex. Crim. App. 1988). An accomplice must affirmatively act to promote the commission of the crime either before, during, or after the offense. Medina, 7 S.W.3d at 641. In this case, appellant asserts that a discrepancy between Morris’s and complainant’s testimony raised an issue as to whether Morris was an accomplice witness as a matter of fact. Morris testified that the telephone rang when she called Apollo’s, and the complainant testified that the call would have been answered by call notes. Appellant argues that this contradicting testimony raised a fact issue as to whether she was an innocent purchaser of stolen property. Further, appellant argues that the low purchase price of the moon walk should have alerted Morris that she was purchasing stolen property and, thus, raised a fact issue as to whether she was an accomplice witness. However, we find that this evidence is not conflicting so as to call into question whether Morris was an accomplice. Nor does appellant point to any other evidence indicating that Morris made an affirmative act to promote the commission of this theft either before, during, or after the offense rendering her an accomplice. See id. Rather, we find appellant’s conclusory argument, that Morris must have known she was purchasing stolen property and was therefore an accomplice to the theft, without merit. Under the current Penal Code, a witness whose participation in a crime occurred only after the commission of the offense, namely a person who would be considered an accessory after the fact (a receiver of stolen goods) under the prior law, is no longer an accomplice witness.[2] See Easter v. State, 536 S.W.2d 223, 228 (Tex. Crim. App. 1976); Worthen v. State, 59 S.W.3d 817, 820 (Tex. App.—Austin 2001, no pet.). Morris’s testimony reflects, and there is no evidence to the contrary, that she had no knowledge of the theft and was not a party to the theft of the moon walk. Although receipt of stolen property is included in the scope of the Penal Code’s theft statute, it is subsequent to the original theft and thus separate and distinct from the theft with which appellant was charged. See Tex. Pen. Code Ann. §§ 31.02, 03 (Vernon 1994 and Supp. 2002); Reyna v. State, 22 S.W.3d 655, 659 (Tex. App.—Austin 2000, no pet.). The testimony of a witness without complicity in the offense for which an accused is on trial is not that of an accomplice witness, regardless of her complicity with the accused in other offenses. Gamez v. State, 737 S.W.2d 315, 322 (Tex. Crim. App. 1987). Thus, we hold that the trial court did not err in denying appellant’s request to instruct the jury to determine whether Morris was an accomplice witness as a matter of fact and overrule his first point of error. Lesser-Included Offense Instruction In his second point of error, appellant argues that the trial court erred by denying his request to instruct the jury on the lesser-included offense of a Class A theft because the complainant did not testify how much the value of the moon walk depreciated since she purchased it. Again, in reviewing charge error, we must first determine whether error exists in the jury charge before assessing harm. Mann, 964 S.W.2d at 641. However, before the evidence warrants an instruction on a lesser-included offense, the following two-prong test must be satisfied: first, the lesser-included offense must be included within the proof necessary to establish the offense charged, and second, some evidence must exist that would permit a jury rationally to find that the defendant is guilty only of the lesser-offense. Mathis v. State, 67 S.W.3d 918, 925 (Tex. Crim. App. 2002). As to the first prong, a lesser included offense is: (1) established by proof of the same or less than all the facts required to establish the commission of the offense charged; (2) differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission; (3) differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or (4) consists of an attempt to commit the offense charged or an otherwise included offense. Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981). We determine whether an offense is a lesser-included offense on a case-by-case basis because a lesser-included offense is defined in terms of the offense charged and the facts of the case. Jacob v. State, 892 S.W.2d 905, 908 (Tex. Crim. App. 1995). In that regard, we employ a three-step analysis to determine whether the lesser- included offense is included within the proof necessary to establish the offense charged. Id. First, the reviewing court must analyze the elements of the offense actually charged by looking at the evidence legally required to prove guilt as defined by the specific indictment. Id. at 907–08. Second, the court must look at the statutory elements of the offense sought as a lesser-included offense. Id. at 907. Third, the court must ascertain whether the elements of the lesser offense are functionally included in the elements of the charged offense. Id. at 908. In this case, 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. 2002). 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. § 31.03(e)(3). These elements are functionally included in the elements of state jail felony theft. Compare Tex. Pen. Code Ann. § 31.03(e)(3) with § 31.03(e)(4)(A). The distinction between state jail felony and misdemeanor theft, in this case, is merely the value of the property stolen. Id. Thus, the state jail felony offense of theft includes the lesser misdemeanor offense. As previously stated, under the second prong, we must determine whether there is some evidence in the record that would permit a jury to rationally find the defendant guilty of only the lesser-offense of Class A theft. See Mathis, 67 S.W.3d at 925. In applying this prong, we must examine the entire record instead of plucking certain evidence from the record and examining it in a vacuum. Enriquez v. State, 21 S.W.3d 277, 278 (Tex. Crim. App. 2000). The evidence must establish the lesser-included offense as a valid rational alternative to the charged offense. Mathis, 67 S.W.3d at 925. Also, it is not enough that the factfinder may disbelieve crucial evidence pertaining to the greater offense; rather, there must be some evidence directly germane to the lesser included offense before an instruction on a lesser-included offense is required. Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997). However, a charge on a lesser-included offense is not warranted if a defendant presents evidence that he committed no offense or presents no evidence, and no evidence otherwise shows he is guilty only of a lesser-included offense. Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994). In this case, appellant contends that he is entitled to an instruction on the lesser- included offense of Class A theft because the complainant was not an expert and could not testify as to how much the moon walk depreciated since she purchased it. Therefore, he argues that the value of the moon walk was not reasonably ascertainable and is deemed to have a value of $500 or more but less than $1,500 as provided in section 31.08(c) of the Penal Code. See Tex. Pen. Code Ann. § 31.08(c) (Vernon 1994). Under section 31.08(a)(1), the value of stolen property is the fair market value of the property at the time and place of the offense or, if the fair market value cannot be ascertained, the cost of replacing the property within a reasonable time after the theft.[3] Id. § 31.08(a)(1). It has long been established that the fair market value of property is that amount the property would sell for given a reasonable time to sell it. Keeton v. State, 803 S.W.2d 304, 305 (Tex. Crim. App. 1991). Furthermore, an owner of property is competent to testify as to the value of his own property despite his lack of expert qualification. Sullivan v. State, 701 S.W.2d 905, 908 (Tex. Crim. App. 1986). When an owner testifies as to the value of his own property, we presume that he is testifying to an estimation of fair market value. Id. at 909. Such testimony constitutes sufficient evidence for the factfinder to determine the value based upon the witness’s credibility. Id. To rebut this presumption, it is not sufficient to merely impeach the witness’s credibility during cross-examination, rather appellant must offer controverting evidence as to the value of the property. Id. In this case, complainant testified that she purchased the moon walk for $3,350 about a year earlier. She further testified that, based on her knowledge of the business, this purchase price represented a fair market value for the moon walk. Complainant also testified that she was given a special deal because she paid for the moon walk with a cashier’s check. Moreover, she maintained that the value of the moon walk could not be less than $1,500, even if she were to buy the jumping part of the moon walk without the gloves and the blower. Conversely, appellant did not offer any evidence controverting complainant’s testimony as to the moon walk’s value. Rather, he claims that, because complainant testified that she was unsure of the moon walk’s value used, there was some doubt as to the value of the moon walk requiring an instruction on the lesser-included offense. However, this argument lacks merit because merely impeaching complainant’s credibility during cross-examination is insufficient to rebut the presumption of the fair market value as estimated by complainant. See id. Instead, appellant must offer controverting evidence to rebut this presumption. See id. Because appellant failed to offer any controverting evidence, the complainant’s testimony constituted sufficient evidence for the factfinder to determine that the value of the moon walk was more than $1,500. There was no evidence from which a jury could have concluded that the value of the moon walk was less than $1,500, and thus no evidence from which a jury could have found appellant guilty only of the lesser-included offense, requiring a charge to that effect. Therefore, we hold that the trial court did not err in denying appellant’s request to instruct the jury on the lesser-included offense of Class A misdemeanor theft. We overrule his second point of error. Failure to Include Definition of when Appropriation is “Unlawful” In appellant’s third point of error, he complains that the trial court erroneously failed to sua sponte include in the jury charge the definition of when appropriation of property is “unlawful.” Appellant claims that this error caused him egregious harm because the jury had to speculate about what behavior constitutes unlawful appropriation. When reviewing charge error, we must determine whether the jury charge contains error, and whether sufficient harm resulted from the error to require reversal. Mann, 964 S.W.2d at 641. When an appellant, as in this case, fails to object to the alleged error at trial, he must show that it caused him egregious harm to secure a reversal on this ground.[4] See id. “Egregious harm” exists when the error was so harmful as to deny the appellant “a fair and impartial trial.” Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 1981); Barrera v. State, 982 S.W.2d 415, 417 (Tex. Crim. App. 1998). To determine whether appellant suffered egregious harm, the error must be viewed in light of the entire jury charge, state of the evidence, argument of counsel, and any other relevant information revealed by the record as a whole. Mann, 964 S.W.2d at 641. Any harm suffered by appellant must be actual and not merely theoretical. Dickey v. State, 22 S.W.3d 490, 492 (Tex. Crim. App. 1999). To demonstrate error in the charge at hand, appellant cites us to Reynolds v. State for the proposition that an indictment, which fails to include one of the statutory ways in which appropriation can be “lawful,” is fundamentally defective. 547 S.W.2d 590, 595–96 (Tex. Crim. App. 1977). Acknowledging that it is the charge, and not the indictment, at issue in this case, appellant argues that, based on Reynolds, the trial court should have sua sponte included a statutory definition specifying when appropriation is unlawful. However, the Court of Criminal Appeals has overruled Reynolds sub silentio as it reiterated in Ex parte Luna, 784 S.W.2d 369, 371–72 (Tex. Crim. App. 1990). Thus, appellant fails to set forth any applicable authority in support of his argument that the trial court erred in failing to define when appropriation is unlawful. Furthermore, appellant fails to cite any caselaw to show how he suffered egregious harm. Also, appellant does not point to any actual harm he suffered nor can we conclude from the record before us that he was egregiously harmed. Looking at the court’s charge, it instructs the jury that “a person commits the offense of theft if he unlawfully appropriates property with the intent to deprive the owner of the property.” The application paragraph then provides that, if the jury finds that appellant “did then and there unlawfully appropriate, by acquiring or otherwise exercising control over the property, namely, one moon walk owned by Charlotte Santana . . . with the intent to deprive Charlotte Santana of the property,” it will find the appellant guilty as charged in the indictment. The record further reflects that during voir dire, the State argued that by showing that appellant stole complainant’s moon walk, it meant that appellant “didn’t borrow it, didn’t accidently walk off with the moon walk.” The State also provided some examples of what will constitute a theft. One example, a rental scenario, was especially analogous to the case at hand: If one rents an item from another, but then proceeds to sell it, one commits theft. During opening statement, the State reiterated that appellant commits theft if he rents the moon walk first but then proceeds to sell it. Again at closing argument, the State emphasized that whatever the specifics of the rental agreement, if appellant attempted to sell the moon walk after renting it, he would have committed theft. Moreover, at trial, both the complainant and her husband offered uncontroverted testimony that appellant merely rented the moon walk and that neither complainant nor her husband gave appellant permission to keep and sell the moon walk. The record also reveals Morris’s uncontroverted testimony that appellant attempted to sell her the moon walk pretending to be the owner of the moon walk and pretending he was going out of business. The evidence presented at trial overwhelmingly shows that appellant sold the moon walk to Morris without the consent of complainant or her husband. Thus, considering that the Penal Code provides that appropriation is unlawful when it occurs without the owner’s effective consent,[5] if the jury concluded that appellant sold the moon walk to Morris without the permission of either complainant or her husband, it must have likewise concluded that appellant unlawfully appropriated the moon walk based on the evidence at trial. After reviewing the jury charge and the evidence in the record before us, we hold that appellant was not so egregiously harmed that he did not receive a fair and impartial trial. Accordingly, we overrule appellant’s third point of error and affirm the judgment of the trial court. /s/ Paul C. Murphy Senior Chief Justice Judgment rendered and Opinion filed July 25, 2002. Panel consists of Justices Hudson, Fowler, and Murphy.[6] Do Not Publish — Tex. R. App. P. 47.3(b). [1] A moon walk is an inflatable jumping toy operated by a blower and, in this case, was accessorized with oversized boxing gloves. [2] Before the adoption of the current Penal Code in 1974, Texas law provided that an accessory was a person whose participation in an offense occurred after the offense was committed. Reyna v. State, 22 S.W.3d 655, 658 (Tex. App.—Austin 2000, no pet.). Thus, older caselaw provided that a receiver of stolen goods was an accomplice witness because he was deemed an accessory to the theft. Id. at 659. However, after the revision of the Penal Code, an accessory is no longer recognized in Texas as a party to the offense with which the accused is charged. Therefore, a receiver of stolen goods, even though formerly deemed an accessory to the principal theft, is no longer an accomplice witness. Id. [3] It is only when the value of property cannot be reasonably ascertained under subsections (a) and (b) that property is deemed to have a value of $500 or more but less than $1,500. Id. at § 31.08(c). [4] In his brief, appellant concedes that he did not object to this alleged charge error at trial. [5] Tex. Pen. Code Ann. § 31.03(b)(1) (Vernon 1994). [6] Senior Chief Justice Paul C. Murphy sitting by assignment.