Summary
holding identical provision of theft statute to be affirmative defense
Summary of this case from Bearman v. StateOpinion
Nos. 01-08-00529-CR, 01-08-00530-CR
Opinion issued March 25, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 337th District Court, Harris County, Texas, Trial Court Case Nos. 1118779 1118777.
Panel consists of Chief Justice RADACK and Justices ALCALA and HIGLEY.
MEMORANDUM OPINION
A jury found appellant, Nereo Pena Garza, guilty of first-degree aggregate theft (trial court cause no. 1118777 and appeal no. 01-08-00530-CR) and second-degree aggregate theft (trial court cause no. 1118779 and appeal no. 01-08-00529-CR), and assessed punishment at 7 years' confinement and a $5,000 fine for the first-degree offense and 6 years' confinement and a $10,000 fine for the second-degree offense. In four issues on appeal, appellant contends (1) the evidence is legally and factually insufficient to support his convictions; (2) the trial court erred during voir dire by explaining the concept of reasonable doubt in a way that diminished the State's burden of proof; and (3) the trial court erred in denying appellant's motion to suppress. We affirm.
BACKGROUND
In 2000, St. Agnes High School implemented a program requiring each incoming student class to purchase a laptop for school use. For the first three years of the program, students purchased laptops from Hewlett Packard. Hewlett Packard provided a four-year manufacturer's warranty for each computer, which would last each student through graduation. Safeware Insurance Company ["Safeware'] offered an optional supplemental insurance policy to cover any repairs that were not covered by Hewlett Packard's manufacturer's warranty. St. Agnes hired appellant as a network and software technician and assigned him to the "C.A.V.E.," the school's computer repair center. During the summer of 2003, a computer virus attack infected most of the school's laptop computers. Appellant encouraged the school to hire Reza Haghigi Ahmadi's company, Intelligent Interface ["I.I."], to repair the computers. Ahmadi sent I.I. technicians to St. Agnes, and the virus was eradicated after approximately three weeks of work. Ahmadi did not charge the school for this repair work. Pleased with Ahmadi's work on the virus, St. Agnes then hired I.I. as its HP warranty repair provider, and I.I. technicians began to work in the C.A.V.E. with appellant full-time. Appellant was not a certified Hewlett Packard warranty provider and was not authorized to diagnose problems for the I.I. technicians. Nevertheless, I.I.'s employee in the C.A.V.E., Daniel Pham, testified that he was told to "just listen and do whatever [appellant] told him to do." In 2005, St. Agnes hired Jason Hyams as its technology director. Hyams soon became concerned with Garza's activities in the C.A.V.E. He questioned the presence of a large inventory of replacement parts for which there were no invoices or documentation, and also discovered that Safeware checks made payable to St. Agnes were habitually deposited into bank accounts managed by I.I. and a business account maintained in appellant's wife's name. Additionally, Hyams found lists of laptop serial numbers, part numbers, and part descriptions organized sequentially by date. On further investigation, Hyams discovered that the serial numbers on the notepads were in alphabetical order by the students' last names. Hyams concluded that appellant was using the serial numbers to order replacement parts for the students even though repairs were not needed. Hyams found several instances where parts were ordered and received for specific laptops without corresponding service tickets or student complaints matching the part orders. St. Agnes questioned Ahmadi and appellant about the alleged rotation scheme and the replacement part inventory. At that time, appellant admitted making unnecessary part replacements, but told the school that they maintained the parts inventory so that repairs could be completed more quickly. St. Agnes terminated appellant and later replaced I.I. as its warranty repair provider. St. Agnes also notified HP, Safeware, and the police of its concerns. Ahmadi and appellant were subsequently arrested and indicted for theft. The two men were tried jointly, and the jury convicted appellant of theft against both Hewlett Packard and Safeware.SUFFICIENCY OF THE EVIDENCE
Standard of Review
We review the legal sufficiency of the evidence by considering all of 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. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We "may not re-evaluate the weight and credibility of the record evidence and thereby substitute our judgment for that of the fact-finder." Id. We give testimony, to weigh evidence, and to draw reasonable inferences from the facts. Id. Our duty is to "ensure that the evidence presented actually supports a conclusion that the defendant committed the crime that was charged." Id. We begin our factual sufficiency review with the assumption that the evidence is legally sufficient. Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009). Evidence that is legally sufficient, however, can be deemed factually insufficient if (1) the evidence supporting the conviction is "too weak" to support the fact-finder's verdict or (2) considering conflicting evidence, the fact-finder's verdict is "against the great weight and preponderance of the evidence." Id. We consider all of the evidence in a neutral light, as opposed to in a light most favorable to the verdict. Id. We recognize that the fact-finder is in the best position to evaluate the credibility of witnesses, and we afford due deference to the fact-finder's determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). We may only find the evidence factually insufficient when necessary to "prevent manifest injustice." Laster, 275 S.W.3d at 518. In such case, we must explain why the evidence is too weak to support the verdict or why the conflicting evidence greatly weighs against the verdict. Id.Applicable Law
"A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property." TEX. PENAL CODE ANN. § 31.03(a) (Vernon Supp. 2009). "Appropriation of property is unlawful if it is without the owner's effective consent." TEX. PENAL CODE ANN. § 31.03(b)(1) (Vernon Supp. 2009). Appellant was charged with aggregate theft in the first degree in the Hewlett Packard case and aggregate theft in the second degree in the Safeware Insurance case. A theft is a theft in the first degree if the value of the property stolen is $200,000 or more. TEX. PENAL CODE ANN. § 31.03(e)(7) (Vernon Supp. 2009). A theft is a theft in the second degree if the value of the property stolen is $100,000 or more but less than $200,000. TEX. PENAL CODE ANN. § 31.03(e)(6) (Vernon Supp. 2009).The Hewlett Packard case
In issue one of the Hewlett Packard case, appellant contends the evidence is legally insufficient to support the verdict. Specifically, appellant claims that the evidence is legally insufficient because (1) Dennis Leahy was not the legal owner of the stolen funds and (2) "insufficient evidence was presented to distinguish between money obtained by invalid warranty claims and funds received through honest work." Evidence of Ownership The indictment alleged that appellant unlawfully appropriated money owned by Dennis Leahy. Appellant argues that there is legally insufficient evidence to show that Leahy owned the stolen money. The Texas Penal Code's definition of "owner" includes a person who has "a greater right of possession of the property than the actor." TEX. PENAL CODE ANN. § 1.07(a)(35)(A) (Vernon Supp. 2009). "Possession" is defined as "actual care, custody, control, or management." TEX. PENAL CODE ANN. § 1.07(a)(39) (Vernon Supp. 2009). An allegation of ownership may be alleged in either the actual owner or a special owner. TEX. CODE CRIM. PROC. ANN. art. 21.08 (Vernon 1989); Freeman v. State, 707 S.W.2d 597, 603 (Tex. Crim. App. 1986). "A `special owner' is an individual who is in custody or control of property belonging to another person." Harrell v. State, 852 S.W.2d 521, 523 (Tex. Crim. App. 1993). When a corporation is the owner of the property that has been stolen, it is the preferable pleading practice to allege special ownership in a natural person acting for the corporation. Simpson v. State, 648 S.W.2d 1, 2 (Tex. Crim. App. 1983); Harris v. State, 846 S.W.2d 960, 962 (Tex. App.-Houston [1st Dist.] 1993, pet. ref'd). A person may testify as the "special owner" of property if it is shown that he has care, custody, or control of the property by virtue of his employment relationship with the corporation that owns the property. See id. at 962. Here, Leahy testified that he was the lead global investigator for Hewlett Packard. At the time of trial in June 2008, Leahy had been working for Hewlett Packard for over three years. Leahy's duties included the investigation of incidents involving warranty fraud. Appellant does not dispute that these duties would be sufficient to qualify Leahy as a special owner. Nevertheless, appellant argues that Leahy cannot be a "special owner" of the money because he was not employed by Hewlett Packard during the entire time the alleged thefts occurred. Specifically, appellant points out that the alleged thefts occurred between June 2, 2003, and August 30, 2005, and that Leahy was not employed by Hewlett Packard until sometime in early 2005. It is true that "the key to answering the question of which person has the greater right to possession of the property is who, at the time of the commission of the offense, had the greater right to possession of the property. Freeman, 707 S.W.2d at 604. However, the State points out that this case was charged as an aggregate theft. "When amounts are obtained in violation of this chapter pursuant to one scheme or continuing course of conduct, whether from the same or several sources, the conduct may be considered as one offense and the amounts aggregated in determining the grade of the offense." TEX. PENAL CODE ANN. § 31.09 (Vernon 2005). Section 31.09 operates to create one offense. Kellar v. State, 108 S.W.3d 311, 312 — 13 (Tex. Crim. App. 2003); Dickens v. State, 981 S.W.2d 186, 188 (Tex. Crim. App. 1998) ("Aggregate theft is the sum of all its parts. A part is a completed theft whose elements have all been proven.") In Tita v. State, 267 S.W.3d 33, 35 n. 1 (Tex. Crim. App. 2008), the court noted that in aggregate theft cases, the statute of limitations does not begin to until the date of the commission of the final incident of theft and therefore the entire theft is deemed to occur on the date of the most recent theft. Applying this reasoning, we conclude that, because the State does not have to prove each individual theft in an aggregate theft case, it likewise is not required to prove that the special owner was an employee of the corporation during the time of each individual theft. See State v. Weaver, 982 S.W.2d 892, 893 — 95 (Tex. Crim. App. 1998) (holding venue proper in Harris County for prosecution of aggregate theft arising out of a single scheme, even though offenses against some complainants took place outside Harris County because alleged out-of-county offenses arise from same scheme or continuing course of conduct as Harris County offenses). The evidence here showed that Leahy was a Hewlett Packard employee with a greater right of control over the corporation's money than appellant during commission of the aggregate offense. As such, the evidence is legally sufficient to show that Leahy was the owner. Amount Stolen Appellant was charged with theft of over $200,000.00 from Hewlett Packard, through its special owner, Leahy. In issues one and two, appellant argues that "by failing to present any evidence separating what [the State] conceded was legitimate work from that which was fraud," the State presented legally and factually insufficient evidence "to distinguish between money obtained by invalid warranty claims and funds received through honest work." Essentially, appellant argues that he "partially performed," and that, as a result, the State was required to prove an offset for the amount of valid work done on the computers. Even if we were to assume that appellant is entitled to an offset for the legitimate work performed on the computers, it would be appellant's burden to produce evidence of the amount of such an offset. See Riley v. State, 2009 WL 3050878, *6 (Tex. App.-Houston [1st Dist.] Sept. 18, 2009, pet. filed). Section 31.08(d) of the Penal Code addresses how property is valued for purposes of the theft statute and provides:If the actor proves by a preponderance of the evidence that he gave consideration for or had a legal interest in the property or service stolen, the amount of the consideration or the value of the interest so proven shall be deducted from the value of the property or service ascertained . . . to determine value for purposes of this chapter.TEX. PENAL CODE ANN. § 31.08(d) (Vernon 2003) (emphasis added). Appellant's claim is that he had a legal interest in a portion of the funds taken from Hewlett Packard because some of the warranty repair work was genuine. However, under § 31.08(d), such a claim is an affirmative defense placing the burden of proving appellant's legal interest on appellant, not the State. The State presented evidence that Hewlett Packard paid out $761,552.50 for the fraudulent warranty work, and appellant presented no evidence to support his claim of entitlement to an offset on this amount. Viewing the evidence in the light most favorable to the verdict, there was legally sufficient circumstantial evidence of the amount stolen. Williams, 235 S.W.3d at 750 (legal sufficiency). Similarly, after viewing all the evidence in a neutral light, we also hold that the evidence of the amount stolen was not factually insufficient. Laster, 275 S.W.3d at 518 (factual sufficiency). The jury was free to determine the credibility of the witnesses and choose whose testimony it believed. Id. Accordingly, we overrule issues one and two in the Hewlett Packard case.
The Safeware Insurance case
Appellant also argues that the evidence is legally and factually insufficient to show that he had the requisite criminal intent to deprive Safeware Insurance of its money. Specifically, he argues that "it was understood through verbal agreement by both parties that insurance claims would be processed through [appellant] and it was expected that [appellant] would receive the checks and then use the funds for repair and replacement of the laptops." Essentially, appellant argues that he received the funds voluntarily, and that while he may have failed to follow procedure by depositing the insurance checks in his personal accounts, this is case is nothing more than a contract dispute regarding the amount of funds owed under the insurance agreements. A person commits theft if he unlawfully appropriates property with intent to deprive the owner of property. See TEX. PENAL CODE ANN. § 31.03(a) (Vernon Supp. 2009). Appropriation of property is unlawful if it is without the owner's effective consent. See TEX. PENAL CODE ANN. § 31.03(b)(1) (Vernon Supp. 2009). Consent is not effective if it is induced by deception. See TEX. PENAL CODE ANN. § 31.01(3)(A) (Vernon Supp. 2009). Citing Phillips v. State, 640 S.W.2d 293, 294 (Tex. Crim. App. 1982) and Jacobs v. State, 230 S.W.3d 225, 230 (Tex. App.-Houston [14th Dist.] 2006, no pet.), appellant argues that a failure to perform a contract is not evidence that a defendant deceived the complainant into paying him money. However, in each of those cases, the only evidence of "theft" was a failure to perform as contracted. Here, there is substantially more evidence of deception than a failure to perform under a contract. See Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004) (holding criminal intent may be inferred from defendant's conduct and surrounding circumstances). The State presented evidence that every claim submitted to Safeware for payment listed a "drop" as the cause of damage. There was also evidence that Hewlett Packard and Safeware often paid for the same repairs to the same computer. The State presented evidence that appellant deposited checks from Safeware, which were made payable to St. Agnes, into his wife's business account and that he gave other of the checks to Ahmadi. Appellant then used the money in from his wife's business account to pay his personal bills. While appellant characterizes this as a failure to follow "procedure," the jury could have considered this as evidence of intent to deceive. See Bogia v. State, No. 01-02-00950-CR at *3-4, 2004 WL 253263 (Tex. App.-Houston [1st Dist.] February 12, 2004, pet. ref'd) (not designated for publication) (holding that violating company policy some evidence of intent to deceive). There was also evidence that the students' explanations of how their computers were damaged did not match the repairs done on the computers or the claims sent to Safeware. For example, one students came to the C.A.V.E. and complained that her computer would not charge. The insurance claim shows that the system board, the LCD screen, and the plastic bottom of the computer were replaced. The insurance claim showed that the computer was "dropped." Another student complained that she could not "connect to the internet," but the insurance claim showed that the student hit the computer on the door and broke the LCD screen, which was replaced. Daniel Pham, I.I.'s worker who was assigned to work in the C.A.V.E. with appellant, testified that he was instructed to "do whatever [appellant] told him to do," and that he felt like he was often instructed to replace good parts with good parts. Finally, the jury heard evidence of appellant's elaborate scheme to bill Hewlett Packard for unnecessary warranty work by using the rotating list of serial numbers from the tablets. The jury could have concluded that appellant's actions in relation to Safeware were likewise "merely a ruse to accomplish theft by deception." King v. State, 17 S.W.3d 7, 15 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd). Viewing the evidence in the light most favorable to the verdict, there was legally sufficient circumstantial evidence of appellant's intent to commit theft. Williams, 235 S.W.3d at 750 (legal sufficiency). Similarly, after viewing all the evidence in a neutral light, we also hold that the evidence of appellant's intent to commit theft was not factually insufficient. Laster, 275 S.W.3d at 518 (factual sufficiency). The jury was free to determine the credibility of the witnesses and choose whose testimony it believed. Id. Accordingly, we overrule issues one and two in the Safeware case.VOIR DIRE
In his third issue on appeal, appellant argues that the trial court erred in voir dire when it explained "reasonable doubt" as follows:[Trial Court]: I had mentioned to you several times that that piece of paper of the elements of the offense have to be proven to you, whatever is alleged in that piece of paper beyond a reasonable doubt. Here's the deal on reasonable doubt. The Court is not going to — not only here but anywhere else in this State — is not going to define for you what a reasonable doubt is. The Court of Criminal Appeals has told us that is up to each individual juror to decide, this juror gets to decide in his or her own mind so that this juror gets to decide, this juror gets to decide, this juror gets to decide through all 12 of you. There's not going to be a light, no buzzer, no whistle, nothing that goes off to say, okay, the State has met its burden. It's up to you to decide when you are convinced beyond a reasonable doubt as to each element of the offense. But here's what the law does tell you. The law tells you the State does not have to prove its case beyond all doubt. What would it take to convince you of anything beyond all doubt?
[Venireperson]: You saw it yourself.
[Trial Court]: And what are you called if you saw it yourself?
[Venireperson]: Eyewitness.
[Trial Court]: Yeah, you're a witness. You'll be waiting in the hallway for us to get this jury picked. And that's why the burden is beyond a reasonable doubt. Nothing unique to this case, this court, this State. It's the same everywhere. You have to be convinced beyond a reasonable doubt as to each element of the offense. It's not anything in the world, but something that is alleged in here you have to be convinced of beyond a reasonable doubt before you can find a person guilty. If you are not convinced beyond a reasonable doubt, what is your verdict?
[Venireperson]: Not guilty.Citing Wansing v. Hargett, a case from the United States 10th Circuit Court of Appeals, appellant argues that the trial court's voir dire comments on reasonable doubt diminished the State's burden of proof because it suggested that there was "an extraordinarily broad range of possible meanings [of reasonable doubt] including some which are plainly unconstitutional[.]" 341 F.3d 1207, 1214 (10th Cir. 2003). The State responds that error, if any, was waived because appellant did not object to the trial court's comments. Appellant, however, contends that the comment was structural error, and did not require objection. As a general rule, trial counsel must object to preserve error, even if it is "incurable" or "constitutional." Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). However, in Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000), a plurality of the Court of Criminal Appeals held that a trial court's comments during voir dire, "which tainted [the defendant's] presumption of innocence in front of the venire, were fundamental error of constitutional dimension and required no objection." Id. at 132. In Blue, the trial court apologized to the venire for its long wait, explained that the delay was because the defendant was indecisive on whether to accept a plea bargain, and expressed its preference that the defendant plead guilty. Id. at 130. A plurality opinion is not binding precedent and we are not obligated to follow it. See Murchison v. State, 93 S.W.3d 239, 262 (Tex. App.-Houston [14th Dist.] 2002, pet. ref'd). Even if Blue were binding, it is distinguishable. In Blue, the trial judge expressed his personal view regarding appellant's guilt or decision to go to trial. No such tainting of the presumption of innocence occurred in this case. Therefore, by failing to object to the trial court's comments on reasonable doubt, appellant waived error. See TEX. R. APP. P. 33.1; see also Brumit v. State, 206 S.W.3d 639, 644-45 (Tex. Crim. App. 2006) (staring that court did not need to decide whether objection was required to preserve alleged error regarding comments of trial judge where record did not reflect bias or partiality of trial court); Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001) (holding that trial judge's comments "aimed at clearing up a point of confusion" did not "[rise] to such a level as to bear on the presumption of innocence"). We overrule issue three.