DENNIS LEON HART, Appellant v. THE STATE OF TEXAS, Appellee
Opinion By Justice Fillmore
A jury convicted Dennis Leon Hart of theft of property having a value of at least $100,000 but less than $200,000. Hart pleaded true to the two enhancement paragraphs, and the jury sentenced him to confinement for life. In four issues, Hart argues the evidence is legally and factually insufficient to support the conviction and the trial court erred by admitting evidence of an extraneous offense and by charging the jury on the law of parties. We affirm the trial court's judgment.
Johnny Broughton II was employed as a truck driver for Hill Brothers' Trucking. On December 4, 2006, Broughton picked up a trailer containing refrigerated lunch meat to deliver to a WalMart distribution center in Arkansas. Broughton parked the truck approximately fifty yards from his apartment in Oak Cliff, intending to spend the night at his home. At 10:00 p.m., Broughton confirmed the truck and the trailer were both locked. When Broughton got up at 4:30 a.m. on December 5, the truck was gone. Broughton testified he had the keys to the ignition of the truck and he did not give anybody permission to take it.
Lieutenant Timothy Stewart worked for the Texas Department of Public Safety (DPS) and was assigned to the North Texas Auto Theft Task Force (Task Force). Stewart received a tip that the Hill Brothers' truck was located at Biglow Drive and Ann Arbor in Dallas. Stewart located the truck at 1:15 p.m. on December 5, confirmed the identification number on the trailer, and set up surveillance on the truck. He also contacted Sergeant Tracy Utsey, a criminal investigator with the Collin County Sheriff's Department assigned to the Task Force, to assist him.
At approximately 2:00 p.m., Stewart saw the truck moving. A blue Cadillac was right behind the truck. Stewart followed the Cadillac, and Utsey followed Stewart. After the Cadillac abruptly turned left and disappeared, the truck pulled over and stopped. Stewart approached the driver's side of the truck, and Utsey approached the passenger's side. Hart was seated on the driver's side of the truck. According to Utsey, there was no one else in the cab of the truck and Hart was obviously the driver. In Utsey's opinion, Hart was exercising care, custody, and control over the truck and the cargo.
The blue Cadillac returned, and both Stewart and Utsey were concerned about an ambush. Stewart retrieved a semi-automatic rifle from his vehicle for their protection. Although Stewart admitted the Cadillac could have contained a curious onlooker, he believed it was connected to Hart. Stewart saw the Cadillac near the truck while he was conducting surveillance. Further, in Stewart's experience, a driver who “pulls in” behind a stolen truck intends to guard the driver of the truck or the load or to act as a decoy. He had also seen the Cadillac numerous times at other operations and locations.
Utsey searched Hart and found a straight blade screwdriver, a pair of pliers, a utility knife, and a lighter with a flashlight in the bottom. Stewart described these as the “tools of the trade.” Both Stewart and Utsey testified a straight blade screwdriver is known as the “universal key.” Utsey testified a straight blade screwdriver will start any ignition. Utsey did not find a key to the truck on Hart or in the cab of the truck. The lunch meat was still in the trailer.
The ignition in the truck was “dangling down” in the driver's lap. Stewart and Utsey testified the truck was hot-wired to start it. According to Stewart, a vehicle is hot-wired by taking a couple of pieces of the wire in the ignition, skinning the wire back, and bridging a wire across. Utsey testified a vehicle is hot-wired so that it can be started without a key and a hot-wired vehicle has usually been stolen. After reviewing a photograph of the ignition in the recovered truck, Broughton testified it was the ignition from his truck and it had not been pulled from the console prior to the theft. In Broughton's opinion, if he saw an ignition in the condition depicted in the photograph, it would “tell” him someone tried to take the truck.
Hart introduced records from the Midlothian Police Department establishing he was arrested at approximately 1:30 a.m. on December 4, 2006 for walking on the wrong side of the highway. He was not released until 1:36 p.m. on December 5.
In rebuttal, Quentin Jackson testified he owned QM Jackson Trucking in 2006. On August 20, 2006, one of Jackson's trucks containing a cargo of sugar was stolen from near his house in Lancaster. When the truck was returned to him, the ignition had been tampered with, the truck had been hot-wired, and the truck had been damaged by running over a mattress.
Lonnie Cole, a deputy sheriff for the Dallas County Sheriff's Department, was assigned to the Task Force on August 20, 2006. He received information indicating Jackson's truck was located in Dallas. Cole located the truck and set up surveillance. He followed the truck to Banderas Food Supply on Harry Hines. The truck backed into the loading dock and stayed parked for twenty or thirty minutes. Cole followed the truck when it left the warehouse and saw it run over a mattress. The driver then abandoned the truck. The trailer of the truck was empty when it was recovered. Stewart testified sugar and other stolen food products were recovered from the Banderas warehouse.
Sergeant Heath Peacock, a DPS officer assisting the Task Force, participated in the surveillance of the Jackson truck. Prior to the surveillance, Peacock was given information about, and photographs of, Hart. Peacock saw a Buick drop Hart off at Jackson's truck. Hart drove the truck to a warehouse on Harry Hines, backed the truck into a loading dock, and got out of the truck. Peacock believes the material in the trailer was then unloaded from the truck. Hart then got back into the truck and left. Peacock did not take any photographs of Hart during the surveillance.
The jury found Hart guilty, and Hart pleaded true to two enhancements. After hearing testimony about Hart's prior criminal history, the jury sentenced him to confinement for life.
Sufficiency of the Evidence
In his first two issues, Hart asserts the evidence is neither legally nor factually sufficient to establish he committed theft. The charge authorized the jury to convict Hart of theft either as a principal or as a party. We will affirm the jury's general guilty verdict if the evidence is sufficient to support a finding of guilt under either of the theories submitted. Garza Vega v. State, 267 S.W.3d 912, 915 (Tex.Crim.App.2008); Hooper v. State, 214 S.W.3d 9, 14 (Tex.Crim.App.2007).
In conducting a legal sufficiency review, we view the evidence in the light most favorable to the verdict to determine whether 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 (1979); Laster v. State, 275 S.W.3d 512, 517 (Tex.Crim.App.2009). The trier of fact is the sole judge of the weight and credibility of the evidence and is responsible for resolving conflicts in the testimony, weighing the evidence, and drawing reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Laster, 275 S.W.3d at 517; Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007). We may not reevaluate the weight and credibility of the evidence or substitute our judgment for that of the fact finder. Laster, 275 S.W.3d at 517; Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App.2006). 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, 214 S.W.3d at 16-17.
When conducting a factual sufficiency review, we view all of the evidence in a neutral light. Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App.2008). We will set aside the verdict only (1) if the evidence supporting the conviction is too weak to support the verdict, or (2) when the evidence supporting the verdict is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Laster, 275 S.W.3d at 518; Grotti v. State, 273 S.W.3d 273, 283 (Tex.Crim.App.2008). We are permitted to substitute our judgment for the fact finder's when considering credibility and weight determinations, but only to a “very limited degree.” Marshall, 210 S.W.3d at 625. Unless the record clearly reveals a different result is appropriate, we must defer to the fact finder's determination concerning what weight to give contradictory testimony. Lancon, 253 S.W.3d at 705; Marshall, 210 S.W.3d at 625. We must have a “high level of skepticism about the jury's verdict” before we may reverse based on factual insufficiency. Steadman v. State, 280 S.W.3d 242, 246-47 (Tex.Crim.App.2009). Further, we may not reverse for factual insufficiency merely because there are “reasonably equal competing theories of causation.” Id. at 247.
“Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt.” Hooper, 214 S.W.3d at 13; see King v. State, 29 S.W.3d 556, 565 (Tex.Crim.App.2000). In a circumstantial-evidence case, it is unnecessary for every fact to point directly and independently to the defendant's guilt; rather, it is sufficient if the finding of guilt is supported by the cumulative force of all the incriminating evidence. Powell v. State, 194 S.W.3d 503, 507 (Tex.Crim.App.2006). The standard of review is the same for cases based on direct and circumstantial evidence. Hooper, 214 S.W.3d at 13; King, 29 S.W.3d at 565.
Theft occurs when an individual unlawfully appropriates property with intent to deprive the owner of the property. Tex. Penal Code Ann. § 31.03(a) (Vernon Supp.2009). “Appropriate” includes both acquiring or otherwise exercising control over property. Id. § 31.01(4)(B). An appropriation is unlawful when (1) it is without the owner's effective consent, or (2) the property is stolen and the actor appropriates the property knowing it was stolen by another. Id. § 31.03(b). The State need not prove the accused participated in the initial theft; rather, the State must show only that the accused knowingly exercised control over the stolen property. McClain v. State, 687 S.W.2d 350, 353 & n.7 (Tex.Crim.App.1985); Steward v. State, 830 S.W.2d 771, 775 (Tex.App.-Houston [1st Dist.] 1992, no pet.) (“The State was not required to prove that appellant participated in the ‘initial acquisition’ of the pickup truck” in order to prove theft.); see also Stewart v. State, 44 S.W.3d 582, 588 (Tex.Crim.App.2001) (citing McClain for proposition that manner of acquisition is inconsequential for theft). The State must, however, prove the accused's actual subjective knowledge that the property was stolen. Dennis v. State, 647 S.W.2d 275, 280 (Tex.Crim.App.1983); 1 Naranjo v. State, 217 S.W.3d 560, 564 (Tex.App.-San Antonio 2006, no pet.). The accused's knowledge the property was stolen can be shown by circumstantial evidence. Chudleigh v. State, 540 S.W.2d 314, 317 (Tex.Crim.App.1976).
A person may be convicted of an offense by his own conduct, by the conduct of a person for whom he is criminally responsible, or both. Tex. Penal Code Ann. § 7.01(a) (Vernon 2003). One manner in which a person may be criminally responsible for the conduct of another is if “acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense․” Id. § 7.02(a)(2). “The evidence must show that at the time of the offense the parties were acting together, each contributing some part towards the execution of their common purpose.” Burdine v. State, 719 S.W.2d 309, 315 (Tex.Crim.App.1986); see also Hanson v. State, 55 S.W.3d 681, 689 (Tex.App.-Austin 2001, pet. ref'd). The agreement to accomplish a common purpose must be made before or contemporaneous with the criminal event. Christensen v. State, 240 S.W.3d 25, 31 (Tex.App.-Houston [1st Dist.] 2007, pet. ref'd) (op. on reh'g); see, e.g., Wygal v. State, 555 S.W.2d 465, 469 (Tex.Crim.App.1977). In determining whether an accused participated as a party, the fact finder may examine the events occurring before, during, and after the commission of the offense and may rely on actions of the accused that show an understanding and common design to commit the offense. Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App.1994); Christensen, 240 S.W.3d at 31-32.
The jury was instructed the appropriation of property is unlawful if (1) it is without the owner's effective consent, or (2) the property is stolen and the actor appropriates the property knowing it was stolen by another. The evidence showed Hart was in jail at the time the Hill Brothers' truck was stolen from the vicinity of Broughton's apartment. Accordingly, Hart did not act as a principal actor in the initial theft of the truck.
The prosecutor argued at trial that Hart was guilty as a party to the appropriation of the truck without the owner's effective consent. However, there was no evidence Hart knew about the theft at the time it occurred, reached a prior or contemporaneous agreement with another person to steal the truck, or otherwise solicited, encouraged, directed, aided, or attempted to aid another person in committing the theft. Therefore, there was no evidence Hart was guilty as a party of the initial theft of the truck. See Wygal, 555 S.W.2d at 468-69 (appellant did not act as party to offense because conduct occurred after offense was completed).
We next turn to whether the evidence was sufficient to support the conviction based on Hart appropriating the truck knowing it was stolen by another. Less than thirty minutes after being released from jail in Midlothian, Hart was driving the stolen truck in Dallas. Hart clearly appropriated the truck by climbing into it, starting it, and driving it away. The question is whether there was sufficient evidence for the jury to conclude Hart knew the truck was stolen by another when he appropriated it and whether Hart intended to deprive the owner of the property. See Tex. Penal Code Ann. § 31.03(b)(2).
The ignition of the truck had been pulled from the dash and hot-wired, a means to start the truck without a key. Further, Utsey did not find a key to the truck in Hart's possession or in the cab of the truck. Finally, the jury heard evidence Hart drove Jackson's stolen truck in August 2006 and allowed the cargo to be unloaded at a food warehouse. The jury could infer from this extraneous offense and from the condition of the ignition that Hart knew the Hill Brothers' truck was stolen. See Chudleigh, 540 S.W.2d at 317. The jury could also infer from Hart's actions in the prior theft that he intended to deprive the owner in this case of both the truck and the cargo. See Griffin v. State, 614 S.W.2d 155, 159 (Tex.Crim.App.1981) (intent to deprive determined from words and acts of accused); Mulchahey v. State, 574 S.W.2d 112, 117 (Tex.Crim.App. [Panel Op.] 1978) (defendant's intent to deprive owners of vehicles manifested by disposal of property in manner that made recovery unlikely).
Applying the appropriate standards of review, we conclude the evidence was both legally and factually sufficient to support the conviction based on Hart's acts as a principal actor in appropriating the truck knowing it was stolen by another. We overrule Hart's first and second issues.
In his third issue, Hart asserts the trial court erred by admitting evidence of the theft of Jackson's truck because it amounted to “character conformity” evidence prohibited by rule of evidence 404(b). We review the admissibility of evidence for an abuse of discretion and will reverse only when the trial court's decision was so clearly wrong as to lie outside the zone of reasonable disagreement. Cameron v. State, 241 S.W.3d 15, 19 (Tex.Crim.App.2007).
Rule of evidence 404(b) prohibits the introduction of evidence for the sole purpose of showing that an actor acted in conformity with his bad character. Tex.R. Evid. 404(b). Conversely, the rule allows the same evidence to be admitted to show intent or knowledge. Id.2
Both the theft of the Hill Brothers' truck and the theft of Jackson's truck involved a cargo of food. Peacock testified Hart drove Jackson's truck to the Banderas warehouse and backed the truck into the unloading dock. After twenty or thirty minutes, Hart drove the truck away. Hart abandoned the Jackson truck after running over a mattress-conduct inconsistent with Hart having a right to or responsibility for the truck. The trailer of the Jackson truck was empty when it was recovered, but sugar was found in the Banderas warehouse. In the theft of Jackson's truck and the theft of the Hill Brothers' truck, the truck was hot-wired when Hart was driving it.
Based on Peacock's testimony, the jury could find beyond a reasonable doubt that Hart participated in the theft of Jackson's truck. The jury could infer from Hart's participation in the theft of the Jackson truck and the disposal of its cargo that Hart knew the Hill Brothers' truck was stolen and that Hart intended to deprive the owner of the property. Accordingly, the trial court did not abuse its discretion by admitting the evidence to show Hart's knowledge or intent. We overrule Hart's third issue.
Jury Charge Error
In his fourth issue, Hart argues the trial court erred by charging the jury on the law of parties. Hart objected to the inclusion of the parties' instruction in the charge. Therefore, we must reverse if any error by the trial court in charging the jury on the law of parties caused Hart some harm. Barrios v. State, 283 S.W.3d 348, 350 (Tex.Crim.App.2009); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh'g).
In general, an instruction on the law of parties is appropriate where there is evidence to support a jury verdict on that theory. See Ladd v. State, 3 S.W.3d 547, 564 (Tex.Crim.App.1999). However, even if a trial court errs by submitting a parties' instruction, when “the evidence clearly supports a defendant's guilt as a principal actor, any error of the trial court in charging on the law of parties is harmless.” Id. at 564-65 (citations omitted). This is because if there is “no evidence tending to show [the defendant's] guilt as a party, the jury almost certainly did not rely upon the parties instruction in arriving at its verdict, but rather based the verdict on the evidence tending to show [the defendant's] guilt as a principal actor.” Id. at 565.
In addressing Hart's first two issues, we concluded there was no evidence to support Hart acting as a party to the offense. However, we further concluded the evidence was sufficient to support Hart's conviction as a principal. Therefore, any error by the trial court in instructing the jury on the law of parties was harmless. Id. We overrule Hart's fourth issue.
We affirm the trial court's judgment.
FN1. Although Dennis involved a conviction under the old receiving stolen property statute, consolidation of the theft offenses under the penal code “effectively eliminated any erstwhile distinction between theft and receiving stolen property.” Chavez v. State, 843 S.W.2d 586, 588 (Tex.Crim.App.1992).. FN1. Although Dennis involved a conviction under the old receiving stolen property statute, consolidation of the theft offenses under the penal code “effectively eliminated any erstwhile distinction between theft and receiving stolen property.” Chavez v. State, 843 S.W.2d 586, 588 (Tex.Crim.App.1992).
FN2. The jury was instructed it could consider the extraneous offense only in “determining motive, intent, scheme, or design, and/or credibility, if any,” of Hart.. FN2. The jury was instructed it could consider the extraneous offense only in “determining motive, intent, scheme, or design, and/or credibility, if any,” of Hart.
ROBERT M. FILLMORE JUSTICE