CHARLES THOMAS ZUFFANTE v. THE STATE OF TEXAS (2011)

OPINION

Opinion By Justice Moseley

A jury convicted Charles Thomas Zuffante of theft of metals and assessed punishment at eight years' imprisonment and a $1,500 fine.   Because we conclude the evidence is legally sufficient to support appellant's conviction, we resolve his first issue against him.   Because this issue is dispositive of his appeal, we need not address his issues concerning the denial of his motion to suppress, the failure to hold a hearing related to expert witness opinion, and the admission of certain testimony.   See Tex.R.App. P. 47.1. We affirm.

I. BACKGROUND

Appellant was indicted for unlawfully appropriating copper tubing and copper wire having a value of less than $20,000 from the owner, David Clark, without his consent and with the intent of depriving him of the property.   The incident giving rise to this case occurred at the site of an apartment complex being demolished to make way for a tollway extension.   Clark was an engineer with an engineering firm performing general consulting with the North Texas Tollway Authority.   He was responsible for the demolition project and had negotiated the contracts with the demolition companies to demolish the buildings and salvage materials such as copper wiring.   Despite no-trespassing signs, there had been thefts of copper from the apartments.

On November 28, 2008, about mid-morning, a tow truck driver, John Castle, saw an individual, later identified as appellant, going up and down the stairs of the apartment complex and disappearing like he might have been entering apartments.   Castle called the police.   Garland police officers Robert McDonald and Jason Lambert responded to a dispatch about a theft in progress at the site.   Appellant ran away when he saw them (they were in full police uniform and in a marked squad car), but the officers apprehended him.

McDonald testified appellant was “rough looking” and “dirty.”   Appellant had sheetrock dust on him, and his hands were “filthy.”   McDonald handcuffed and searched him and found a multipurpose screwdriver with a flashlight on one end, pliers with copper residue, some brass fittings, and a small pocketknife;  these items were offered as State's Exhibit 14, which was the subject of a pretrial motion to suppress and admitted over objection.   Lambert also testified that appellant's hands were dirty, and there was sheetrock residue and copper residue (Lambert agreed it was “orange discoloration”) on his hands, his person, and the articles on his person.   They testified that State's Exhibits 1 through 4 showed orange coloration on appellant's hands.

Lambert said he investigated apartments 107 and 207 (up- and downstairs apartments) that were “being systematically stripped of copper wiring and pipe.”   He found pliers and tools used to remove the copper.   Appellant was arrested after the search of the apartments.   Castle testified he saw police officers carrying boxes of copper and tools from an apartment, and he “saw the copper in the boxes.”   He later looked inside the complex and saw doors kicked in and breaker boxes and air-conditioning units ripped off the walls.   He agreed it looked like a “systematic copper theft.”

Lambert testified that State's Exhibits 7 through 13 were photographs of items found in apartments 107 and 207.¹  State's Exhibit 7 was a photograph of a bag containing tools;  one was a saw which appeared to have sheetrock residue.   Lambert explained that “copper wiring” was like “electrical wiring”-in the casing it was covered in plastic and rubber, but outside the casing “it's essentially just raw copper.”   State's Exhibit 10 was a photograph of a box the officers collected from apartments 107 and 207;  Lambert testified it contained copper wire still in its casing, among other items.   State's Exhibit 13 was a photograph of another box containing copper wiring and copper pipe;  the box was found in apartment 207 by the door.   State's Exhibits 11 and 12 were close-up photographs of the contents of the box in State's Exhibit 13, showing the copper pipe and the copper wire after it was stripped, bound, and bundled.

Castle and Clark testified to their observations of the material's copper content, which we set forth in more detail below.

Appellant did not testify.

The jury was charged on theft of metals, specifically, “wire that consists of at least 50 percent copper under the value of $20,000” ² and on the lesser included offense of theft of property with a value of $50 or more but less than $500.   The jury found appellant guilty of theft of metals.   At the punishment hearing, appellant pleaded true to two enhancement paragraphs alleging prior state jail felonies.   After hearing evidence, the jury assessed punishment, and the trial court pronounced judgment.   This appeal followed.

II. SUFFICIENCY OF THE EVIDENCE TO PROVE WIRE CONSISTS OF “AT LEAST FIFTY PERCENT COPPER”

In his first point of error, appellant contends the evidence is factually insufficient to support his conviction for theft of metals.   Specifically, appellant argues the evidence was insufficient to prove that the wire consisted of “at least fifty percent copper.”

A. Applicable Law

A person commits a theft offense if he unlawfully appropriates property with intent to deprive the owner of property;  as relevant here, appropriation of property is unlawful if it is without the owner's effective consent.  Tex. Penal Code Ann. § 31.03(a), (b)(1) (West Supp.2010).   At the time this incident occurred, a theft offense was a state jail felony if the value of the property stolen was less than $20,000 and the property stolen was insulated or noninsulated wire or cable that consists of at least fifty percent copper.   Id. § 31.03(e)(4)(F)(iii).

B. Standard of Review

In Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App.2010) (plurality op.), the Texas Court of Criminal Appeals overruled Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App.1996), and decided that

the Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.

We will therefore not address appellant's factual sufficiency challenge but will address the legal sufficiency of the evidence in the interests of justice.

In reviewing the sufficiency of the evidence to support a conviction, we consider all the evidence in the light most favorable to the verdict to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319 (1979);  Brooks, 323 S.W.3d at 899.   Viewing the evidence “in the light most favorable to the verdict” under this standard means that the reviewing court is required to defer to the jury's credibility and weight determination because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony.  Brooks, 323 S.W.3d at 899 (citing Jackson, 443 U.S. at 319, 326).   Thus, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the jury.  Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999).   Instead, we “determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict.”  Hooper v. State, 214 S.W.3d 9, 16-17 (Tex.Crim.App.2007).

We must presume that the jury resolved any conflicting inferences in favor of the prosecution and defer to that resolution.  Jackson, 443 U.S. at 326;  Clayton v. State, 235 S.W.3d 777, 778 (Tex.Crim.App.2007).   However, juries are not permitted to come to conclusions based on mere speculation or factually unsupported inferences or presumptions.  Hooper, 214 S.W.3d at 15.   An inference is a conclusion reached by considering other facts and deducing a logical consequence from them.  Id. at 16.   Speculation is mere theorizing or guessing about the possible meaning of facts and evidence presented.  Id. A conclusion reached by speculation may not be completely unreasonable, but it is not sufficiently based on facts or evidence to support a finding beyond a reasonable doubt.  Id. We measure the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge.   Wooley v. State, 273 S.W.3d 260, 261 (Tex.Crim.App.2008);  Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997).   A hypothetically correct jury charge “sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.”  Malik, 953 S.W.2d at 240.

C. Evidence Regarding Copper Content

The only evidence concerning the nature of the wire and (possibly) its copper content came from the testimony of Clark and Castle.   We detail their testimony relevant to this issue as follows.

1. Clark's Testimony

Clark testified that he was a licensed professional engineer with twenty-nine years' experience in “transportation, management and projects” including projects like this apartment demolition.   Clark testified that he had experience dealing with copper used in residential buildings for plumbing, heating, and air-conditioning.   On direct examination, concerning State's Exhibit 12 (a close-up photograph of the contents of the box found in apartment 207), he was asked, “And based on your training and certification as an engineer here in the State, is this type of copper tubing and copper wiring, is that going to have a content of copper more than 50 percent?” ³  Clark then answered, “Based on what I'm seeing here in the picture, it appears to be 100 percent copper tubing and wiring.”   On cross examination, Clark was asked, “Now, the copper that the prosecutor has showed you on these State's Exhibits, have you ever personally tested the content of this copper to see what the percentage is?”   Clark answered, “No, sir.”

2. Castle's Testimony

Castle testified on direct examination that he had been a tow truck driver for about twelve years but, before that, he had hauled scrap metal, including copper wire and tubing, for a scrap metal business for about a year and had “experience with handling copper.”   He was asked what “unstripped copper wire” was, and he said, “It's pretty much like insulation wire, electrical wire that's been stripped.”   He testified he saw the copper in the boxes removed from the apartments.   Directing his attention to State Exhibit 11, the following exchange occurred:

Q. Now, have you seen this type of material before?

A. Yes, I have.

Q. And this-have you seen these materials while you were working at the scrap metal yard?

A. Yes.

After a discussion of copper pipe and an objection, directed to a hearing on the basis for Castle's expertise, which the trial court overruled, the State directed Castle's attention to part of State's Exhibit 12, and Castle identified the item pictured as copper wire, the kind of wiring “[t]hat's from like electric wiring and all that” and that had been stripped and bundled.   Castle was asked if it “would be over 50 percent copper,” and he replied, “Yes.” He was asked the weight of the copper in the box, which contained copper piping and copper wire.⁴  Castle testified, over objection, that he used to have to weigh the copper, separate it, and haul it, and he thought the copper in the boxes “had to be over-at least over 150 pounds at least. 100, 150.”   He testified the value “of that kind of copper” was $3 per pound at his scrap yard.

On cross examination, it was established that Castle had attended the Criminal Justice College at the University of Texas at Arlington, and that he never took any chemistry, metallurgy, or metal working classes.   The following exchange then occurred:

Q. Did you ever test the copper to see the exact amount or percentages?

A. No.

Q. And did you ever weigh the boxes?

A. No.

Q. So, basically, you're guessing -

A.  Yes.

Q. -correct?․

A.  Yes.

Q. I mean, you've never testified in court about the value of copper before, have you?

A. No.

Q. You've never testified as an expert witness -

Q. - that the wire is over 50 percent?

A. Huh-uh.

Q. Is that a no?

A. No. Sorry.

On re-direct examination, the following exchange occurred:

Q. But this is the exact type of copper that you deal with in your business -

A.  Yeah.

Q. - on a daily basis?

A. I'm sorry.   I misunderstood.   I'm sorry.

Q. This is the exact type of copper -

A.  That's what we dealt with was-was scrap metal, was copper.   That's what I hauled.

Q. And this is the type of copper that you were using or distributing -

A.  That we were -

Q. - at your business?

A. - that we were cashing-that people would bring to us to cash in.

Q. And based on your year or so of working with this metal, you can identify copper?

A. Yes. I can identify copper, yes.   Because that's all I hauled was copper.   I transported it.

․

The following testimony was elicited on re-cross examination:

Q. Well, when you worked for your former employer, did you ever test copper to see whether it was 50 percent or not?

A. I did not test it.   I just delivered it.   That's all I did.

Q. I mean, basically, you drove a truck -

A.  Yes.

․

On further re-direct examination:

Q. Why do you believe this copper here is above 50 percent, I mean, by looking it or what?

A. Just by looking at it and knowing copper.

Q. Because in your business experience, you know that this is the type of copper that has over 50 percent in it?

A. Yes.

(Emphasis added.)

On further re-cross examination, Castle again said he had never tested copper but he had “touched it.”   He was then asked, “[Y]ou can see copper.   It looks like copper when I see it, but you really don't know what the percentages are and how-what the concentration of copper is in each one of these little strands, do you?”   His answer:  “No.”

D. Discussion

Our inquiry is, considering all the evidence in the light most favorable to the verdict of conviction, whether the evidence is sufficient to support the element of the offense that the copper wire in the boxes consisted of at least fifty percent copper.   First, we consider Clark's testimony.   Clark testified he could identify the wire as containing at least fifty percent copper by looking at a picture of the wire, not even the wire itself.⁵  He testified that his responsibilities involved overseeing the salvage of the building materials, but there is no evidence he knew the salvage value of the copper wire based on its copper content.   Nothing connected his “training and certification as an engineer” with the ability to testify to the copper content of the wire.

Further, Clark's testimony was undermined by premising his answer on “what I'm seeing here in the picture”-referring to the photograph of the box of copper tubing and wiring-and saying “it appears to be 100 percent copper tubing and wiring.”   Clark did not clarify he was saying that the box contained copper objects, and not any other metal objects, or that the objects themselves consisted of at least fifty percent copper.   See Hooper, 214 S.W.3d at 15 (factually unsupported inferences or presumptions are no evidence).   We conclude that Clark's testimony is no evidence that the wire consisted of at least fifty percent copper.   See id. at 15-16.

Next, we turn our attention to Castle's testimony, particularly on the further re-direct examination italicized above.   We consider this testimony in the context of his previous testimony that he had a year's experience handling and hauling copper wire at the scrap metal business;  he saw the copper materials in the boxes and they were the “exact type” of copper materials he hauled at the scrap metal business;  and he identified the copper wire as “electric wiring.”   Specifically as to whether the copper wire was “above” fifty percent copper, he said he knew that it was “just by looking at it and knowing copper” and answered “yes” to the question that “[b]ecause in your business experience, you know that this is the type of copper that has over 50 percent in it?”

Appellant argues that visual observation of the copper wire-Castle's observation at the scene and of the items in a photograph-is inadequate to establish that the wire consists of more than fifty percent copper.   Appellant relies primarily on Curtis v. State, 548 S.W.2d 57, 58-59 (Tex.Crim.App.1977), in which the court of criminal appeals considered whether there was evidence of probative value to prove whether a white or brown powdered substance was heroin.   The court considered a police officer's testimony that he observed the substance and it was his opinion as an expert that the substance was heroin.⁶  The court concluded this was no evidence, noting that other controlled and non-controlled substances also appear in white or brown powdered form.   The court opined that “[t]he evidence here does not show that even the experienced expert can distinguish one white or brownish powdered substance from another and determine which is heroin.”  Id. at 59.

However, Curtis is distinguishable from this case for two reasons.   First, Curtis involved identifying by mere observation an illegal substance from other substances having the same visual characteristics.   It is undisputed the wire here was copper, and the issue is identifying whether it consisted of at least fifty percent copper.   The facts that Castle “could identify copper” from previous experience with this “exact type” of copper and he identified this wire as electrical and “above” fifty percent copper support the inference that there were visible characteristics that distinguished such wire from other copper wire and that Castle knew those visible characteristics from his business experience, unlike in Curtis.   See Hooper, 214 S.W.3d at 16-17.   Second, and overlapping with the first difference, unlike in Curtis, more than mere observation is involved in this case.   Castle testified he had arrived at his ability to identify this copper wire as “over 50 percent copper” from his experience hauling and handling copper, including copper wire, at the scrap metal business.   Thus, Castle's testimony supports the conclusion that he could distinguish copper wire consisting of at least fifty percent copper from any other copper wire by sight based on his experience handling it and knowing its use.

Castle did admit on cross examination that he was “guessing” when asked about the composition and weight of the copper wire.   But the composition questions on cross, re-cross, and further re-cross examination concerned “testing” to see “the exact amount or percentages” of copper, as in the question on further re-cross:  “[Y]ou really don't know what the percentages are and how-what the concentration of copper is in each one of these little strands, do you?”   But the percentage of copper-the exact copper concentration in the wire-is not an element of the offense and is irrelevant to our inquiry.   The relevant inquiry is whether the wire consists of at least fifty percent copper, which Castle affirmatively stated twice:  (1) he was asked if he thought the copper wire “would be over 50 percent copper,” replying “yes”;  and (2) he was asked “[w]hy do you believe this copper is above 50 percent, ․” replying “[j]ust by looking at it and knowing copper” “in [his] business experience.”

In summary, Castle testified that even though he could not specify the exact copper content of the wire, he could tell it was over fifty percent copper.   We conclude that Castle's evidence is some evidence that the copper wire consisted of at least fifty percent copper.   See id. at 16.

Considering all the evidence in the light most favorable to the verdict, we conclude that the jury was rationally justified in finding beyond a reasonable doubt that the wire consisted of at least fifty percent copper.   See Brooks, 323 S.W.3d at 895, 899.   Accordingly, the evidence was legally sufficient to support the jury's guilty verdict on the theft of metals offense.   We decide appellant's first issue against him.

III. CONCLUSION

Based on our disposition of appellant's first issue, we affirm the trial court's judgment.

FOOTNOTES

FN1. State's Exhibit 6 was also identified as a photograph of items found in apartments 107 and 207, but we cannot determine from the record what the items are..  FN1. State's Exhibit 6 was also identified as a photograph of items found in apartments 107 and 207, but we cannot determine from the record what the items are.

FN2. Act of May 24, 1973, 63rd Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 883, 929, amended by Act of June 2, 1975, 64th Leg., R.S., ch. 342, § 10, 1975 Tex. Gen. Laws 912, 914, amended by Act of May 15, 2007, 80th Leg., R.S., ch. 304, § 1, 2007 Tex. Gen. Laws 580, 581, amended by Act of May 23, 2009, 81st Leg., R.S., ch. 295, § 1, 2009 Tex. Gen. Laws 804, 805 (current version at Tex. Penal Code Ann. § 31.03(e)(4)(F)(iii) (West Supp.2010))..  FN2. Act of May 24, 1973, 63rd Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 883, 929, amended by Act of June 2, 1975, 64th Leg., R.S., ch. 342, § 10, 1975 Tex. Gen. Laws 912, 914, amended by Act of May 15, 2007, 80th Leg., R.S., ch. 304, § 1, 2007 Tex. Gen. Laws 580, 581, amended by Act of May 23, 2009, 81st Leg., R.S., ch. 295, § 1, 2009 Tex. Gen. Laws 804, 805 (current version at Tex. Penal Code Ann. § 31.03(e)(4)(F)(iii) (West Supp.2010)).

FN3. Appellant's counsel then requested a hearing pursuant to rules of evidence 702 and 703.   The trial court overruled the request..  FN3. Appellant's counsel then requested a hearing pursuant to rules of evidence 702 and 703.   The trial court overruled the request.

FN4. Appellant objected pursuant to rules of evidence 701, 702, and 703 that Castle had “no basis to give any kind of value or percentage as to this copper.”   The trial court overruled the objection..  FN4. Appellant objected pursuant to rules of evidence 701, 702, and 703 that Castle had “no basis to give any kind of value or percentage as to this copper.”   The trial court overruled the objection.

FN5. The jury could have inferred that Clark observed the stripped and unstripped copper wire at the scene.   However, the only testimony offered as to Clark's observations at trial related to the photographs constituting the State's exhibits.   Neither Castle nor Clark testified that he handled the copper wire..  FN5. The jury could have inferred that Clark observed the stripped and unstripped copper wire at the scene.   However, the only testimony offered as to Clark's observations at trial related to the photographs constituting the State's exhibits.   Neither Castle nor Clark testified that he handled the copper wire.

FN6. The evidence also included the police officer's testimony that the result of a Marquis reagent field test of the substance was positive, indicating the substance was an opiate derivative and his hearsay testimony that a lab chemist who analyzed the substance told him the substance was heroin.  Curtis, 548 S.W.2d at 59..  FN6. The evidence also included the police officer's testimony that the result of a Marquis reagent field test of the substance was positive, indicating the substance was an opiate derivative and his hearsay testimony that a lab chemist who analyzed the substance told him the substance was heroin.  Curtis, 548 S.W.2d at 59.

JIM MOSELEY JUSTICE