Austin Shiloh Harper v. State ( 2017 )


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  •                              NUMBER 13-15-00548-CR
    COURT OF APPEALS
    THIRTEENTH DISTRICT OF TEXAS
    CORPUS CHRISTI – EDINBURG
    AUSTIN SHILOH HARPER,                                                       Appellant,
    v.
    THE STATE OF TEXAS,                                                         Appellee.
    On appeal from the 2nd 25th District Court
    of Gonzales County, Texas.
    MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Contreras and Hinojosa
    Memorandum Opinion by Chief Justice Valdez
    A Gonzales County jury found appellant Austin Shiloh Harper guilty of theft by a
    public servant, a state-jail felony, for which Harper was convicted and received a three-
    year probated sentence.      See TEX. PENAL CODE ANN. § 31.03(f)(1) (West, Westlaw
    through 2017 1st C.S.). By three issues, Harper contends that the evidence is legally
    insufficient to support his conviction. We affirm.
    I.     Background
    A Gonzales County grand jury indicted Harper for theft by a public servant. See
    id. The indictment specifically charged that on or about May 15, 2014, Harper:
    unlawfully appropriate[d] . . . property, to wit: U.S. Currency or money
    orders, of a value of $500 or more but less than $1,500 from the City of
    Waelder, the owner thereof, without the effective consent of the owner, and
    with intent to deprive the owner of the property, and the defendant was . . .
    a public servant, namely, licensed peace officer, and such property
    appropriated by [Harper] had therefore come into his custody, possession,
    or control by virtue of his status as such public servant.
    Harper pleaded not guilty to this charge, and the case was called for a jury trial. When
    the evidence is viewed in the light most favorable to the jury’s verdict, it shows the
    following.
    The City of Waelder (City) employed Harper as the chief of its police department.
    The City also employed Billy Bob Moore as the assistant police chief.          The police
    department’s budget came from the City. As such, the City paid for most of the police
    department’s equipment by issuing purchase orders preapproved by the City’s mayor and
    council members. However, as per City policy, the City did not supply handguns to police
    officers. Instead, handguns were to be supplied by police officers at their own expense.
    In December 2013, the City received a donation in the form of two checks from a
    business called “Hometown Sweepstakes.” According to the donor, the purpose of the
    donation was to help the police department buy equipment.            However, the City’s
    administrator became concerned about the legitimacy of the donor’s business and
    rejected the donation on behalf of the City.
    Approximately four months later, in May 2014, assistant chief Moore called the
    donor to solicit the same donation. According to the donor, assistant chief Moore asked
    2
    for the donation to be made in blank money orders. The donor said that the chief insisted
    on it. This arrangement sounded “too fishy” for the donor, so he contacted Texas Ranger
    Joseph Evans. With Ranger Evans surveilling the transfer, the donor met with assistant
    chief Moore in the parking lot of the police department and handed Moore two blank
    money orders, totaling $1,253. Assistant chief Moore then cashed the money orders and
    went to Harper’s house, where the two agreed that the cash would be split equally among
    themselves and would be used to buy police equipment. Harper’s half amounted to
    approximately $650.
    The next day, Harper traveled to a gun store and purchased two hand guns—a
    Glock for $480.70 and a Smith & Wesson for $319.95—totaling $800.65. The City did
    not issue a purchase order for the handguns. Instead, the handguns were billed to Harper
    in his individual name, as shown on the purchase receipt issued by the gun store. To
    facilitate the purchase of the handguns in his own name, Harper filed paperwork with the
    Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Ranger Evans testified to
    the significance of Harper’s decision to fill out ATF paperwork:
    Ranger Evans:        I believe it’s [form] 4473. It’s a Federal government
    document, and that particular document is for an
    individual purchasing a firearm. Anybody that goes
    in—me, you, or anybody else that goes in and buys a
    personal gun has to fill this form out, saying, “I’m buying
    this gun. I am not a convicted felon. I’m capable and
    eligible of purchasing this weapon, and this weapon is
    basically for me.” He filled that particular paperwork
    out in his name; him as the buyer; him as the owner of
    the guns that he purchased that day.
    Prosecutor:          And if somebody were buying a department handgun,
    would they fill it out in their name and that they're the
    registered owner?
    3
    Ranger Evans:           No. In fact, if—if you go in to purchase weapons for a
    department, or for a government entity, [the ATF] form
    is not used. You actually have to bring in a letterhead
    saying, “we’re purchasing these weapons for this
    department, and they’re for department use,” and that’s
    how they’re sold. [The ATF] form is not completed by
    individuals buying for a government entity.
    Ranger Evans interviewed Harper regarding the donation approximately one
    month after Harper purchased the handguns. Harper initially told Ranger Evans that he
    could not remember whether the police department ever received a donation in the seven
    months since he became police chief. However, when pressed further, Harper admitted
    that he used proceeds from the donation to purchase the handguns, which he considered
    to be “City property.”1
    The evidence showed that Harper never informed the City about the donation prior
    to purchasing the handguns; instead, Harper told the City about the purchase only after
    Ranger Evans interviewed him about the donation.
    After hearing this evidence, the jury found Harper guilty of theft by a public servant
    as charged in the indictment. This appeal followed.
    II.     Standard of Review
    In conducting our legal sufficiency review, we must view “the evidence in the light
    most favorable to the jury’s verdict and determine whether any rational trier of fact could
    have found the essential elements of the crime beyond a reasonable doubt.” Gross v.
    State, 
    380 S.W.3d 181
    , 185 (Tex. Crim. App. 2012) (citing Jackson v. Virginia, 
    443 U.S. 307
     (1979)). We “must give deference to ‘the responsibility of the trier of fact to fairly
    resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences
    1 Harper stated that he had to use approximately $200 of his own money on top of the money from
    the donation to complete the purchase of the handguns.
    4
    from basic facts to ultimate facts.’” Hooper v. State, 
    214 S.W.3d 9
    , 13 (Tex. Crim. App.
    2007) (quoting Jackson, 
    443 U.S. at
    318–19).
    III.    The Essential Elements of Theft
    A person commits the offense of theft if he “unlawfully appropriates property with
    intent to deprive the owner of property.” TEX. PENAL CODE ANN. § 31.03(1). At the time
    of the offense in this case, theft was a state-jail felony if the value of the property
    appropriated was more than $500 but less than $1,500, 2 and the defendant was a public
    servant. See Id. § 31.03(e)(3); see also id. § 31.03(f)(1).3
    IV.     Discussion
    A.      Who “owns” the donation?
    By his first issue, Harper contends that the donation—i.e., the money orders and
    the proceeds thereof—was not “owned” by the City. The City is considered the “owner”
    of this property if, among other things, the City either (1) possessed the property, whether
    lawfully or unlawfully, or (2) had a greater right to possess the property than did Harper.
    Id. § 1.07(35)(A) (West, Westlaw through 2017 1st C.S.). “Possession” means actual
    care, custody, control, or management. Id. § 1.07(39).
    1. Did the City possess the property?
    Harper argues that the City did not own the property under the first mode of
    ownership listed above because the City did not actually possess the property; instead,
    according to Harper, it was assistant chief Moore who actually received the money orders
    2 We note that, in 2015, the Texas Legislature amended the statute to make theft a Class A
    misdemeanor if the value of the property appropriated is $750 or more but less than $2,500. Acts of June
    20, 2003, 78th Leg. R.S., ch. 393 § 20, 2003 TEX. GEN. LAWS 1639, eff. Sept. 1, 2003 (amended 2015)
    (current version at TEX. PENAL CODE ANN. § 31.03(e)(3) (West, Westlaw through 2017 1st C.S.)).
    3 On appeal, Harper concedes that, as a peace officer, he was a public servant and that the amount
    of the property involved was between $500 and $1,500.
    5
    from the donor and cashed them. Harper asserts that assistant chief Moore therefore
    owned the property. However, the City is not a natural person and therefore must act
    through its agents and employees. See id. § 1.07(38); see also Flores v. State, No. 01-
    90-00314-CR, 
    1990 WL 177280
    , at *2 (Tex. App.—Houston [1st Dist.] Nov. 15, 1990, no
    pet.) (mem. op., not designated for publication) (observing that “once appellant received
    fine money [paid by a traffic ticket defendant], it became the property of the City of
    Houston by virtue of [appellant’s] employment [with the City of Houston]”). Assistant chief
    Moore was employed by the City when he solicited the donation on behalf of the police
    department, and the police department is a subdivision of the City. Therefore, a jury could
    have rationally found that the City possessed the property through assistant chief Moore.
    See 
    id.
     § 1.07(35)(A).
    2. Did the City have a greater right to possess the property than Harper?
    Harper next argues that the City did not own the property under the second mode
    of ownership listed above. See id. § 1.07(35)(A) (defining owner as a person who has a
    greater right to possess property than the defendant). Specifically, Harper asserts that
    the donation was essentially “up for grabs” after the City administrator rejected it, and
    therefore, the City could not claim a greater right to the donation than he did.
    The premise of Harper’s argument seems to be that the person who rejects
    property cannot claim a greater right to that property than the person who accepts the
    property. We find no reason to disagree with this proposition. However, when both
    individuals work for the same company, can the employee who accepts the property
    legitimately claim to have a possessory interest superior to that of the company itself
    simply because another employee initially rejected the property? We believe that a jury
    6
    presented with that question could rationally find that, as between the employee who
    accepted the property and the company itself, the company’s interest is superior. In this
    case, as in the scenario above, we believe the jury could have rationally found that the
    City’s right to possess the donation was superior to that of Harper, Moore, and the
    administrator—all of whom were City employees.                   Furthermore, Harper provides no
    authority to support his position that the City’s possessory interest in the donation should
    be deemed inferior to his interest under the circumstances, and we find none.
    Harper further argues that, as between the City and the police department, we
    should find that the police department has the superior interest because the donation was
    intended for the police department. However, the issue is not whether the City’s interest
    was superior to the police department’s interest, but instead whether the City’s interest
    was superior to Harper’s. For the reason stated above, we have already resolved the
    latter issue against Harper. At any rate, as previously mentioned, the police department
    was a subdivision of the City, and Harper provides no authority that a subdivision of a
    municipality may be treated as a free-standing, separate entity for purposes of
    determining the ownership element of theft, and we find none.4
    Viewed in the light most favorable to the verdict, the evidence was sufficient to
    enable a rational jury to conclude that the City either possessed the property at issue
    4  Nevertheless, Harper argues that the police department had a greater right to possess the
    property than did the City because the police department allegedly had established a private account for
    receiving donations under the previous police chief, which the City had knowledge of and authorized.
    However, the separate account was never identified with any specificity. Furthermore, the witness who
    testified about the purported account identified Harper as her only source of knowledge that such account
    existed. Moreover, the witness testified that Harper said the account was closed when the previous chief
    left. Considering this evidence, the jury could have believed that such account never existed or that, if it
    ever existed, it was closed at the time of the events giving rise to this prosecution. See Hooper v. State,
    
    214 S.W.3d 9
    , 13 (Tex. Crim. App. 2007).
    7
    through assistant chief Moore or had a greater right to possess the property than did
    Harper. We overrule Harper’s first issue.
    B.      Did Harper “unlawfully” appropriate the donation?
    By his second issue, Harper disputes that he appropriated the donation unlawfully
    when he used it to purchase handguns. Harper unlawfully appropriated the property if,
    among other things, the City did not consent to Harper using the donation to purchase
    the handguns. See 
    id.
     § 31.03(b)(1).
    Here, the City required police officers to supply handguns at their own expense.
    Instead of using his own money, Harper used money donated to the police department to
    purchase handguns in his own name without telling anyone at the City about it
    beforehand.    The jury could have rationally found from this evidence that Harper
    appropriated the donation without the City’s consent.
    Nevertheless, Harper argues that he did not need the City’s consent to purchase
    the handguns because no City policy outlined how monies donated to the police
    department were to be used. However, Harper’s evidence undermines this argument.
    Harper offered into evidence three receipts issued by the City.          These receipts
    documented monies donated to the police department from businesses other than
    Hometown Sweepstakes.        Harper then offered into evidence a City-issued receipt
    documenting the donation from Hometown Sweepstakes in December 2013, which the
    administrator rejected. The fact that the City documented these donations is evidence
    that Harper acted contrary to the City’s policy when he concealed the donation from the
    City.
    We overrule Harper’s second issue.
    8
    C.     Did Harper “intend to deprive” the City of the donation?
    By his third issue, Harper argues that he did not intend to deprive the City of the
    donation. Harper intended to deprive the City of the donation if, among other things, it
    was his conscious objective or desire to withhold it from the City permanently. See id. §
    6.03(a) (West, Westlaw through 2017 1st C.S.); see also id. §§ 31.01(2)(A), 31.03(a).
    Here, Harper paid for the handguns in cash and represented to ATF that they were
    his property, leaving no paper trace that the handguns were actually purchased with City
    money. Harper never informed anyone at the City about the donation or the purchase
    until Ranger Evans questioned him about it one month later. And during his interview
    with Ranger Evans, Harper initially disclaimed any knowledge of a donation, but he then
    admitted to purchasing handguns with the donation to the police department. Based on
    this evidence, the jury could have reasonably inferred that Harper had every intention of
    claiming ownership of the handguns for himself had Ranger Evans’s police investigation
    not prompted him to come clean.
    Nevertheless, Harper argues that assistant chief Moore acted alone in soliciting
    the blank money orders from the donor and that he knew nothing about the donation until
    after Moore cashed the money orders. As we understand his argument, Harper asserts
    that he lacked the intent to deprive the City of the donation because he did not actually
    solicit the donation. However, the donor testified that assistant chief Moore solicited the
    blank money orders at the behest of the police chief, which was Harper. The jury was
    entitled to believe the donor’s testimony.
    We overrule Harper’s third issue.
    9
    V.     Conclusion
    We affirm the trial court’s judgment.
    /s/ Rogelio Valdez
    ROGELIO VALDEZ
    Chief Justice
    Do not publish.
    TEX. R. APP. P. 47.2(b).
    Delivered and filed this
    16th day of November, 2017.
    10
    

Document Info

Docket Number: 13-15-00548-CR

Filed Date: 11/16/2017

Precedential Status: Precedential

Modified Date: 11/20/2017