Victor Manuel Gallegos v. State ( 2015 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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VICTOR MANUEL GALLEGOS, No. 08-14-00276-CR
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Appellant, Appeal from the
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v. County Court at Law No. 7
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THE STATE OF TEXAS, of El Paso County, Texas
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Appellee. (TC# 20120C01670)
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OPINION
Victor Manuel Gallegos is appealing his conviction of theft. Finding that the evidence is
insufficient to support Gallegos’s conviction, we reverse the judgment and render a judgment of
acquittal.
PROCEDURAL AND FACTUAL SUMMARY
Gallegos was charged with five misdemeanor offenses alleged to have been committed
on June 26, 2011: (1) class-A misdemeanor criminal mischief (cause number 20120C00815); (2)
burglary of a vehicle (cause number 20120C00942); (3) burglary of a vehicle (cause number
20120C01669); (4) theft (cause number 20120C01670); and (5) evading arrest (cause number
20120C00778). Gallegos entered a plea of not guilty to each charge1 and the cases were tried
together before a jury.
1
The judgment erroneously recites that Gallegos entered a plea of guilty.
The evidence showed that Gallegos and Julio Acosta attempted to enter the Nova Luna
bar through a back door used only by bar personnel and band members. One of the bar’s
security guards, Fernando Chavez, stopped them and told them they had to enter through the
front door and pay the cover charge like everyone else. Chavez watched Gallegos and Acosta
get into their vehicle and drive “crazy” through the parking lot. The vehicle stopped and one
man got out of the car while the other man parked the vehicle. Acosta walked through the
parking lot and checked vehicle doors to see if they were locked. Chavez continued watching
from behind a rock wall, and he saw Acosta take the hubcaps off of a truck while Gallegos acted
as a lookout. Chavez alerted other security personnel at the bar when he saw Gallegos chasing
one of the parking lot attendants.
Deputy Sheriff Juan Munoz was patrolling in the area that evening, and as he drove by
Nova Luna, one of the bar’s security guards flagged him down. The security guard told him that
two men were trying to break into cars in the parking lot. Munoz sometimes worked off-duty
security at the bar, so he was familiar with the area. Munoz drove his patrol unit into the parking
lot and used a spotlight to find the two men. Both men ran away when they saw him, and after a
brief chase, Munoz caught Acosta and took him into custody. The bar’s security personnel told
Munoz that the second subject had run northbound. Munoz drove his patrol unit toward a nearby
business and found Gallegos crouching behind a dumpster, but when Munoz told him not to
move, Gallegos jumped over a wall that was six feet in height. Gallegos ran back towards Nova
Luna with Munoz in pursuit. The bar’s security personnel moved toward Gallegos and he
stopped running. Munoz caught up to Gallegos and took him into custody.
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After securing Acosta and Gallegos, Munoz checked the vehicles in the parking lot and
observed that the door to a Ford truck was open. The truck’s center console was open and a case
for eyeglasses was on the ground next to the truck. Munoz saw that the hubcaps were missing
from another truck. Munoz also noticed that a Mazda had damage to the door handle. He
located Gallegos’s gray Dodge Neon in the parking lot and saw items inside of the car which had
been stolen from vehicles in the bar’s parking lot.
Gallegos’s co-defendant, Acosta, testified for the defense. Like Gallegos, he was charged
with five offenses, but he agreed to plead guilty to four of the offenses in exchange for dismissal
of one of the cases. Acosta had been placed on probation for fourteen months, and at the time of
trial, he had completed his probation and paid all of his fees. Acosta testified that he was driving
Gallegos’s vehicle that evening because Gallegos was more intoxicated. Acosta admitted that he
broke into cars in the Nova Luna parking lot, but he maintained that Gallegos did not assist him
in committing the offenses because he “didn’t want nothing to do with it.”
Gallegos testified that he was extremely drunk that evening and he tried to convince
Acosta to stop breaking into cars, but Acosta would not listen to him. He denied acting as a
lookout, but he knew that Acosta was putting the stolen property in his car.
The court’s charge included an instruction on the law of parties. The jury found Gallegos
guilty in all five cases. The trial court sentenced Gallegos to confinement for 365 days in the El
Paso County Jail, probated for six months, and “a fine of $300.00 Probated for $0.00.”2
2
The trial court entered judgments of acquittal in the criminal mischief case (cause number 20120C00815) and in
the other burglary case (cause number 20120C00942). The State filed notice of appeal in those two cases (appellate
cause numbers 08-14-00271-CR and 08-14-00272-CR).
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SUFFICIENCY OF THE EVIDENCE
In Issue Two, Gallegos challenges the legal sufficiency of the evidence supporting his
theft conviction because the State failed to prove that Phillip Luna was the owner of the
hubcaps.3 The State concedes that there is no evidence supporting the jury’s finding that Phillip
Luna owned the hubcaps. The State’s confession of error in a criminal case is important and
carries great weight, but it is not binding. See Saldano v. State, 70 S.W.3d 873, 884
(Tex.Crim.App. 2002). We are required to independently examine the error confessed because
the proper administration of the criminal law cannot be left merely to the stipulation of parties.
Id.
Standard of Review and Applicable Law
In reviewing the sufficiency of the evidence to determine whether the State proved the
elements of the offense beyond a reasonable doubt, we apply the Jackson v. Virginia standard.
Brooks v. State, 323 S.W.3d 893, 895-96 (Tex.Crim.App. 2010) (citing Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). Under that well-known standard, a
reviewing court must consider all evidence in the light most favorable to the verdict and in doing
so determine whether a rational justification exists for the jury’s finding of guilt beyond a
reasonable doubt. Brooks, 323 S.W.3d at 894-95 (citing Jackson, 443 U.S. at 319, 99 S.Ct. at
2789). The trier of fact is the sole judge of the weight and credibility of the evidence, and we
must presume that the fact finder resolved any conflicting inferences in favor of the verdict and
defer to that resolution. See TEX.CODE CRIM.PROC.ANN. art. 38.04 (West 1979); Dobbs v. State,
3
Gallegos filed a single brief in cause numbers 08-14-00274-CR, 08-14-00275-CR, and 08-14-00276-CR raising a
total of six issues. Issues Two, Four, and Five are the only issues pertinent to this appeal.
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434 S.W.3d 166, 170 (Tex.Crim.App. 2014). Further, we are not permitted to reevaluate the
weight and credibility of the evidence or substitute our judgment for that of the fact finder.
Isassi v. State, 330 S.W.3d 633, 638 (Tex.Crim.App. 2010). Our task is to determine whether,
based on the evidence and reasonable inferences drawn therefrom, a rational juror could have
found the essential elements of the crime beyond a reasonable doubt. Id.
A person commits theft if he unlawfully appropriates property with the intent to deprive
the owner of the property. TEX.PENAL CODE ANN. § 31.03(a)(West Supp. 2015). The State is
required to allege the name of the owner of the property. TEX.CODE CRIM.PROC.ANN. arts.
21.08, 21.09 (West 2009);4 Byrd v. State, 336 S.W.3d 242, 251-52 (Tex.Crim.App. 2011). When
the State alleges ownership in the actual owner or a special owner, it has the burden of proving
beyond a reasonable doubt the ownership allegation. Freeman v. State, 707 S.W.2d 597, 603
(Tex.Crim.App. 1986); Lopez v. State, 899 S.W.2d 300, 302 (Tex.App.--El Paso 1995, pet.
ref’d). Further, the State is required to prove that the person alleged in the charging instrument
as the owner is the same person as shown by the evidence. See Byrd, 336 S.W.3d at 252.
No Evidence of Ownership
The information alleged that Gallegos unlawfully appropriated, by acquiring and
otherwise exercising control over property other than real property, to-wit: hubcaps of the value
of $50 or more but less than $500, without the effective consent of the owner, namely Phillip
Luna, with intent to deprive the owner of the property. As observed by the State, there is no
evidence in the record that Phillip Luna owned the hubcaps as alleged in the information. We
4
Article 21.09 states the requirements for an indictment, but the rules pertaining to allegations in an indictment and
the certainty required also apply to an information. TEX.CODE CRIM.PROC.ANN. art. 21.23 (West 2009).
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conclude that the evidence is legally insufficient to support Gallegos’s conviction of theft in
cause number 20120C01670. We sustain Issue Two, reverse the judgment of conviction, and
render a judgment of acquittal. It is unnecessary to address Issues Four and Five.
STEVEN L. HUGHES, Justice
December 9, 2015
Before McClure, C.J., Rodriguez, and Hughes, JJ.
(Do Not Publish)
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