Andrew Garraway v. State ( 2015 )

ACCEPTED
03-14-00595-CR
4634405
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/25/2015 11:14:55 AM
JEFFREY D. KYLE
CLERK
NO. 03-14-00595-CR
COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
FOR THE AUSTIN, TEXAS
AUSTIN SUPREME JUDICIAL DISTRICT3/25/2015 11:14:55 AM
JEFFREY D. KYLE
Clerk
ANDREW ELON GARRAWAY,
Appellant
VS.
THE STATE OF TEXAS,
Appellee
APPEAL FROM
THE 22ND JUDICIAL DISTRICT COURT
HAYS COUNTY, TEXAS
TRIAL COURT CAUSE NO. CR-11-0925
STATE'S BRIEF
Ben Moore
Asst. Criminal District Attorney
712 S. Stagecoach Trail, Suite 2057
San Marcos, Texas 78666
ORAL ARGUMENT IS Ph: (512) 393-7600 / Fax: (512) 393-2246
NOT REQUESTED State Bar No. 24042522
benj amin.nioore@co.hays.tx.us
Attorney for the State of Texas
NAMES OF PARTIES
Appellee: State of Texas
Attorneys for the State: Wesley H. Mau, Hays County District Attorney
At trial: Ben Moore, Assistant Criminal District Attorney
On appeal: Ben Moore
Asst. Criminal District Attorney
Katie McVaney
Asst. Criminal District Attorney
712 S. Stagecoach Trail, Suite 2057
San Marcos, Texas 78666
Appellant: Andrew Elon Garraway
Attorneys for Appellant:
At trial: David S. Watts
174 S. Guadalupe Street, Suite 101
San Marcos, Texas 78666-5567
On appeal: Ellic Sahualla
600 West 13*^ Street
Austin, Texas 78710
Page ii
TABLE OF CONTENTS
NAMES OF PARTIES ii
TABLE OF CONTENTS iii
INDEX OF AUTHORITIES iv
STATEMENT OF THE CASE 2
STATEMENT OF FACTS 3
ISSUES PRESENTED 3
ARGUMENT 4
STATE'S RESPONSE TO POINT OF ERROR 1 4
THEFT IS A LESSER ESfCLUDED OFFENSE OF BURGLARY OF A
HABITATION.
STATE'S RESPONSE TO POINT OF ERROR H 8
THE JURY CHARGE PROPERLY ALLEGED THE THEFT ELEMENTS.
STATE'S RESPONSE TO POINT OF ERROR m 10
BUSINESS RECORDS AND SUMMARIES WERE PROPERLY
ADMITTED.
STATE'S RESPONSE TO POINT OF ERROR TV 12
THE COURT DID NOT ADMIT HEARSAY THROUGH THE
CODEFENDANT TESTIFYING ABOUT CONSENT TO ENTER
HABITATIONS.
STATE'S RESPONSE TO POINT OF ERROR V 13
THE DETECTIVE'S TESTIMONY TO WHOM AND HOW HE
RETURNED STOLEN PROPERTY WAS NOT HEARSAY.
STATE'S RESPONSE TO POINT OF ERROR VI 14
THE EVIDENCE WAS LEGALLY SUFFICIENT TO CONVICT
GARRAWAY OF THEFT OF PROPERTY VALUED AT $1,500.00 OR
MORE BUT LESS THAN $20,000.00.
CONCLUSION 16
PRAYER 16
CERTIFICATE OF COMPLIANCE WITH TEX.R.APP.PROC.,
RULE 9.4 17
CERTIFICATE OF SERVICE 17
Page iii
INDEX OF AUTHORITIES
FEDERAL CASES
Crawford v. Washington, 541 U.S. 36 (2004) 13
STATE CASES
Bergv. State, 747 S.W.2d 800 (Tex. Crim. App. 1988)..... ...9
Banner v. State, 820 S.W.2d 25 (Tex. App.—^Houston [Hth
Dist] 1991) 7
Brooks V. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) 14
Crocker v. State, 573 S.W.2d 190 (Tex. Crim. App. 1978) 12
Evans v. State, 606 S.W.2d 880 (Tex. Crim. App. 1980) 8
Exparte Sewell, 606 S.W.2d 924 (Tex. Crim. App. 1980) 6
Hall V. State, 225 S.W.3d 524 (Tex. Crim. App. 2007) 4
Kellar v. State, 108 S.W.3d 311 (Tex. Crim. App. 2003) 10
Kent V. State, 447 S.W.3d 408 (Tex. App.—Houston [14^ Dist.]
2014) (pet. granted) 9
Langs V. State, 183 S.W.3d 680 (Tex. Crim. App 2006) 4
Martinez v. State, 'ill S.W.3d 727 (Tex. Crim. App. 2010) 10
McClain v. State, 687 S.W.2d 350 (Tex. Crim. App. 1985) 9
Milton V. State, 652 S.W.2d 958 (Tex. Crim. App. 1983) 9
Mitchell V. State, 137 S.W.3d 842 (Tex. App.—Houston [r'
Dist] 2004, pet. refd) 5
Ramirez y. State, 422 S.W.3d 898 (Tex. App.—Houston [14th
Dist] 2014, pet refd) 8
Shelby V. State, 2007 WL 2141291 (Tex. App.—Austin 2007) 5
Page iv
Tapps V. State, 257 S.W.3d 438 (Tex. App. —^Austin 2008, pet.
granted) 12
Will. v. State, 314 S.W.3d 45, 53 (Tex. App.—Tyler 2010) 7
Young V. State, 621 S.W.2d 779 (Tex. Crim. App. 1981) 8
STATE STATUTES
Tex. Code Crim. Proc. Ann. Art. 37.09 4
Tex. Code Crim. Proc. Art. 38.39 15
Tex. Penal Code Ann. § 30.02 5
Tex. Penal Code Ann. § 31.03 (A)(1) 6
Tex. R.EVID. 1006 11,12
Tex.R.Evid. 801 13,14
Tex.R.Evid. 803(6) 10,11,12
Page V
NO. 03-14-00595-CR
COURT OF APPEALS
FOR THE
AUSTIN SUPREME JUDICIAL DISTmCT
ANDREW ELON GARRAWAY,
Appellant
VS.
THE STATE OF TEXAS,
Appellee
APPEAL FROM
THE 22ND JUDICIAL DISTRICT COURT
HAYS COUNTY, TEXAS
TRIAL COURT CAUSE NO. CR-11-0925
STATE'S BRIEF
TO THE HONORABLE JUSTICE OF THE COURT OF APPEALS:
COMES NOW the State of Texas, by and through her Assistant District
Attorney, Ben Moore, and files this State's Brief pursuant to Texas Rules of
Appellate Procedure 38.2 and would show the Court the following:
Page 1
STATEMENT OF THE CASE
The Grand Jury of Hays County indicted Andrew Elon Garraway
("Garraway") on November 22, 2011/ The indictment consisted of twenty counts of
Burglary of Habitation with intent to commit theft, did attempt to commit theft, and
did commit theft? Two counts were abandoned by the State.
On April 10, 2014, a jury trial began.^ The jury found Garraway not guilty on
all counts.'^ The jury found Garraway guilty of the lesser-included offense of theft,
$1,500 or more, but less than $20,000 on April 21, 2014/
On June 19, 2014, the Court pronounced Garraway's punishment!® Garraway
was sentenced to the Texas Department of Criminal Justice's Institutional Division
for 2 years for the lesser-included offense of theft and was fined $1,500, to be paid
joint and severally? Garrawayappeals his conviction. A notice of appeal was filed on
September 12,2014.^ Appellant's brief was filed on January 16, 2015.
^CR4.
^CR4-7.
^2RR4.
^ 7 RR 67.
®8RR4.
^8RR4-5.
^CR73.
Page 2
STATEMENT OF FACTS
The defendant testified and admitted to all elements except for entry into the
habitation.^ The State further adopts the Appellant's Statement of Facts.
ISSUES PRESENTED
Theft is a lesser included offense of burglary of a habitation by entering and
committing theft. All the facts and elements required to prove theft are required to
prove the charged offense of burglary of a habitation by entering and committing
theft.
Business records are properly used as evidence as an exception to the hearsay
rule when proved by testimony from any qualified person, including a law
enforcement officer and pawn shop employee. The trial court did not abuse its
discretion when he admitted the authenticated records. When business records are
voluminous, the trial court has the discretion to admit sunamaries to aid the jury in
using the records.
Witnesses are allowed to testify to what they did, how they did what they did,
and why. This testimony is not hearsay.
In a trial, evidence legally sufficient to prove elements may come from many
different witnesses, proving different required elements. No one person is required to
offer evidence to any specific element, and a jury is allowed to make their decision
^6RR76-111.
Page 3
from all the evidence. The jury determined the witnesses' credibility and gave the
appropriate weight to the evidence. The jury properly found the defendant guilty
based on the totality of evidence.
ARGUMENT
STATE'S RESPONSE TO POINT OF ERROR I
THEFT IS A LESSER INCLUDED OFFENSE OF BURGLARY OF A
HABITATION.
Appellant erroneously claims in his first issue that theft is not a lesser included
offense ofburglary. An offense is a lesser included offense if it is established by
proof of the same or less than all the facts required to establish the commission of the
offense charged.The elements of the offense actually charged must be compared to
the statutory elements ofthe possible lesser included offense. The Court of
Criminal Appeals came to the same conclusion with burglary and separate felonies
committed within the burglaries. In Langs v. State,the court used the Blockburger
test to determine if the underlying felonies in burglaries were lesser included
offenses:
It is well-settled that a defendant may not be punished for both the underlying
felony and burglary if the burglary allegation is that the defendant entered a
home without the consent of the owner and then committed the underlying
felony within the home as defined in § 30.02(a)(3). [....] Under Blockburger,
burglary under Section 30.02(a)(3) requires proof of a fact that the felony
Tex. Code Crim. Proc. Ann. Art. 37.09 (West 2006).
Hallv. State, 225 S.W.3d 524 (Tex. Crim. App. 2007).
Langs V. State, 183 S.W.3d 680 (Tex. Crim. App 2006).
Page 4
charge does not, namely, entry without consent. However, to prove the
burglary charge, the State must prove all of the elements of the underlying
felony. Thus, the felony offense would not require proof of an additional
element that the burglaryoffense does not also require.'^
This Court of appeals has cometo a similarconclusion in Shelby v. State}'^ To
prove burglary of a habitation, the State must show that the defendant entered a
habitation and committed a felony, thefl or assault.'^ In the current case, all counts
within the indictment stated "did enter a habitation without the effective consent of
Victim], the owner thereof, with intent to commit theft, did attempt to commit thefl,
and did commit theft}^ In Mitchell v. State, the defendant was charged with
burglary of a habitation by entering and committing and attempting to commit the
felony offense of aggravated assault}^ He pled guilty without a plea bargain to the
underlying aggravated assault with a deadly weapon. He was sentenced and
appealed. The Court determined that aggravated assault with a deadly weapon was a
lesser-included offense of burglary. The Court pointed out that the same facts would
have to be proven for aggravated assault and burglary by entering and committing
aggravated assault.
at 686.
Shelby v. State, 2007 WL 2141291 (Tex. App.—Austin 2007) (not designated for publication)
(holding a conviction for burglary of a habitation by the commission of an assault and conviction
for the underlying assault create a double jeopardy violation).
Tex. Penal Code Ann. § 30.02 (West 2011).
(CR 4) (emphasis added).
Mitchell V. State, 137 S.W.3d 842 (Tex. App.—Houston [1'' Dist.] 2004, pet. refd).
Tex. Penal Code Ann. § 30.02(a)(3).
''Id.
Page 5
To prove theft, the State must show that the defendant unlawfiilly appropriated
property with intent to deprive the owner of said property."^ When theft amounts are
obtained pursuant to one scheme or continuing course of conduct, whether from the
same or several sources, the amounts may be aggregated in determining the grade of
theft.''
In the present situation, like the Langs case, burglary under Texas Penal Code
Ann. § 30.02(a)(3) requires proof of a fact that the theft charge does not, namely,
entry without consent. To prove the burglary by entering and committing theft, the
State had to prove all the elements of the underlying theft. Therefore, theft is a lesser
included offense.
The Texas Court of Criminal Appeals has stated theft is a lesser included
offense of burglary, but only when it is an element of the burglary, and not when
burglary is charged as burglary with the intent to commit theft.'' Dixon v. State cites
Ex parte Sewell for the proposition that theft may be a lesser included offense of
burglary of a habitation if the theft is alleged.'^ However, Dixon misreads Exparte
Sewell to require a burglary indictment to allege the value of the items along with
their description.'"^ Before 1973, an indictment for burglary of a habitation had to
Tex. Penal Code Ann. § 31.03 (A)(1).
^'Id.
" ExparteSewell, 606 S.W.2d 924 (Tex. Crim. App. 1980).
Dixon V. State, 43 S.W.3d 548, 551 (Tex. App.—^Texarkana 2001, no pet.).
''Id.
Page 6
allege all the elements of the theft in the indictment.Sewell discusses a 1955
burglary indictment." Sincethe new adoption of the Penal Code of 1973, the State is
now onlyrequired to allege the accused committed theft?^
Other Courts of Appeal have held similarly in aggravated robbery cases. In
Bonner v. State, the Court affirmed the denial of Appellant's request for a lesser
included offense on theft in an aggravated robbery case because: "Appellant
presented no other evidence at trial, nor did the State, as to the value of the property
stolen which is a required element of class-A misdemeanor theft. As a result,
appellant could not have been found guilty of class-A misdemeanor theft which must
be shown to meet the second prong of the Royster test. In Williams v. State, the
Court found error in the trial court's denial of the requested instruction on the lesser
included offense of theft in an aggravated robbery case, despite that fact that the
indictment did not allege the description or value of the stolen items." The court
held that it was harmfiil error because the evidence showed the value of the property
would have fallen in the misdemeanor range.^°
Gonzales v. State, 517 S.W.2d 785 (Tex. Crim. App. 1975), Exparte Donahue, 602 S.W.2d 265
(Tex. Crim. App. 1980 ); Mitchell v. State, 2)1 S.W.2d 1018 (1931).
Ex parte Sewell, at 924.
Davila v. State, 547 S.W.2d 606 (Tex. Crim. App. 1977).
Bonner v. State, 820 S.W.2d 25, 27 (Tex. App.—Houston [14th Dist] 1991).
Williams V. State, 314 S.W.3d 45, 53 (Tex. App.—Tyler 2010).
Page 7
In Ramirez v. State, the Court held that the trial court properly refused the
request for an instruction on the lesser-included offense of theft, "Because there is no
evidence of the value of the truck stolen by appellant." But the court went on to hold
that "we can think of no strategic reason for counsel's failure to examine the
witnesses on this issue. This holding implies that counsel's proffer of evidence on
value would have then made a lesser-included offense of theft a viable charge,
despite the indictment's containing no such allegation.
The determining factor as to whether theft is a lesser included offense of
burglary of a habitation is whether the indictment alleges a completed theft, and if so,
is there evidence that a jury could determine the degree of theft based on proper
value. This indictment did allege a completed theft, and evidence indicating value of
the items stolen was admitted. Thus, Appellant's claim fails.
STATE'S RESPONSE TO POINT OF ERROR H
THE JURY CHARGE PROPERLY ALLEGED THE THEFT ELEMENTS.
Appellant also argues that the court's charge failed to require a unanimous
verdict. Appellant erroneously cites claiming a jury charge must require a jury to
find beyond a reasonable doubt which definition of "unlawftil" is relied upon.
Young, Evans, and Hill do not discuss that issue." Those cases discuss how the State
Ramirez v. State, 422 S.W.3d 898, 902 (Tex. App.—^Houston[14th Dist] 2014, pet. refd).
Young V. State, 621 S.W.2d 779 (Tex. Crim. App. 1981); Evans v. State, 606 S.W.2d 880 (Tex.
Crim. App. 1980); Hill v. State, 625 S.W.2d 803 (Tex. App.—Houston [14" Dist] 1981).
Page 8
may allege "theft" in a burglary charge or may list the elements of theft in the
charging document. In the present case, the indictment alleged "theft."
The State is only required to allege "unlawftilly appropriate," and not the
circumstances that make it unlawftiL" A defendant charged with a "theft" indictment
that lists "unlawftilly appropriates property with the intent to deprive" can be found
guilty by proving the actor's initial taking, or receipt knowing the property was
stolen, or neither, as long as all the elements were proven."" The definitions of
unlawftil are only evidentiary circumstances, not acts, and a defendant is not entitled
to have them in the charging instrument." The Court of Criminal Appeals has
previously explained in another case:
I]t can be seen that whatever theory the State presents as to how the offense
occurred is irrelevant. So long as the evidence is sufficient to prove that
appellant unlawftilly appropriated the property in question with the "intent to
deprive the owner of the property" appellant's conviction must stand. It is
immaterial whether the State's theory at trial and the evidence offered involve
theft as it is described in Section 31.03(b)(1), or theft as it is described in
Section 31.03(b)(2).^®
Appellant cites Kent v. State for the proposition that each individual item and
person must be found unanimously by a jury because they are required elements of a
theft charge by aggregation. This case is contrary to Kellar v. State, which stated
" Milton V. State, 652 S.W.2d 958 (Tex. Crim. App. 1983).
McClain v. State, 687 S.W.2d 350 (Tex. Crim. App. 1985).
Id.
" Bergv. State, lAl S.W.2d 800, 809 (Tex. Crim. App. 1988).
Kent V. State, 447 S.W.3d 408 (Tex. App.—Houston [14*^ Dist.] 2014) (pet. granted).
Page 9
the element is the continuing course of conduct, and not the specific acts of theft that
are aggregated." On February 4, 2015, the Court of Criminal Appeals granted the
State's petition for discretionary review ofKent.
STATE'S RESPONSE TO POINT OF ERROR m
BUSINESS RECORDS AND SUMMARIES WERE PROPERLY ADMITTED.
In issue three, Appellant argues that the trial court abused his discretion by
admitting business records. A trial court's decision to admit or exclude evidence is
reviewed under an abuse of discretion standard. Admitting evidence is an abuse of
discretion if the determination Ues outside the zone of reasonable disagreement."
Business records are any memorandum, report, record, or data compilation, in
any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time
by, or from information transmitted by, a person with knowledge, if kept in the
course of a regularly conducted business activity, and if it was the regular practice of
that business activity to make the memorandum, report, record, or data compilation
all as shown by the testimony of the custodian or other qualified witness, [...] unless
the source of information or the method or circumstances of preparation indicate lack
of trustworthiness.'^®
Kellarv. State, 108 S.W.3d 311, 313 (Tex. Crim. App. 2003).
Martinez v. State, 327 S.W.3d 727 (Tex. Crim. App. 2010).
Tex. R. Evid. 803(6).
Page 10
State's Exhibit No. 36 was a 57 page compilation of data, referred to as Leads
Online. Detective Adrian Marin and five pawn shop employees explained what data
is collected by an employee during a business transaction, both pawning and
selling.'*^ Detective Marin and Richard Barker explained that Leads Online is a
compilation of that data."" Pawning, selling and purchasing items is the normal
business of pawn shops. The detective and the pawn shop employee said it was a
normal pawn shop duty to collect the data and maintain that data in Leads Online.""
No evidence suggests that the Leads Online records were untrustworthy. In
contrast. Detective Marin and later Detective Mark Jarman both said they obtained
the business records, and then verified the records personally by going to the pawn
shop locations to identify the transactions at each location and obtain the listed
property.'*'^ Their efforts fiirther verified the accuracy of the business records. Thus,
the trial court did not abuse his discretion in admitting the business records pursuant
to Texas Rules ofEvidence 803(6).'"
A summary presents the contents of voluminous and admissible writings,
recordings, or photographs, which cannot conveniently be examined in court.'^®
State's Exhibit No. 36, the business records, were admitted. The originals were
'^'5RR62, 67, 73,77,81,118.
'"5RR78, 119.
"5RR78,119.
^'*5RR119,164.
Tex. R. Evid. 803(6).
Tex. R.EVID. 1006.
Page 11
produced in court/^ The documents were a voluminous collection of addresses,
dates, item descriptions, and ticket numbers. Most pages listed multiple transactions.
The two summaries were different compilations of those addresses, transactions,
dates and items totaling 1 page for State's Exhibit No. 37 and 4 pages for State's
Exhibit No. 41. These summaries allowed a convenient examination of the data in
court. The trial court did not abuse his discretion admitting the business records
pursuant to Texas Rules of Evidence 803(6) and 1006."*® If the records and
summaries were improperly admitted, this error would not constitute reversible error.
"It is well established that the improper admission of evidence does not constitute
reversible error if the same facts are shown by other evidence which is not
challenged.'"*^ Detective Marin, Detective Jarman, the codefendant, Justin Kajileh,
pawn shop employees and the defendant all testified to the same items and sales
within the records, which were also supported by surveillance videos showing the
same. Appellant's claim fails.
STATE'S RESPONSE TO POINT OF ERROR IV
THE COURT DID NOT ADMIT HEARSAY THROUGH THE CODEFENDANT
TESTIFYING ABOUT CONSENT TO ENTER HABITATIONS.
The defense attorney by a reference indicates he had seen them before. 5 RR 128 (stating "Your
Honor, that's got hearsay from probably 50 to 60 different sources; [..The author of this brief
was the trial attorney, and as an officer of the court, will represent the defense attorney was provided
a copy of those documents prior to trial.
Tex. R. Evid. 803(6); Tex. R. Evid.1006.
Crocker v. State, 573 S.W.2d 190, 201 (Tex. Crim. App. 1978); See also Tapps v. State, 257
S.W.3d 438 (Tex. App. —^Austin 2008, pet. granted).
Page 12
The Confrontation Clause as interpreted through Crawford v. Washington
apphes to testimonial hearsay.^° Hearsay is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth
of the matter asserted.^'
The codefendant, Justin Kajileh, testified during the trial no one had given
Appellant and him consent to enter any habitations/^ He testified to his personal
knowledge that no consent had been given. Justin Kajileh's testimony showed that
no out of court statements existed. Appellant fails to point to any testimony by Justin
Kajileh regarding any statement by any out of court declarant. Furthermore, Justin
Kajileh was cross-examined. There was no hearsay and no confrontation violation.
Thus Appellant's claim fails.
STATE'S RESPONSE TO POINT OF ERROR V
THE DETECTIVE'S TESTIMONY TO WHOM AND HOW HE RETURNED
STOLEN PROPERTY WAS NOT HEARSAY.
The Confi-ontation Clause as interpreted through Crawford v. Washington
applies to testimonial hearsay." Hearsay is a statement, other than one made by the
Crawford V. Washington, 541 U.S. 36 (2004).
"Tex.R.Evid. 801.
5 RR 86.
Crawford, at 36.
Page 13
declarant while testifying at the trial or hearing, offered in evidence to prove the truth
of the matter asserted.^'^
Detective Jarman identified the individuals from whom property was stolen."
He testified as to specifically what property he returned and specifically to whom."
At no time did he recite any statements that any of the victims made to him. He was
allowed to testify to what he did, and how he did it, and to whom he spoke.
Detective Jarman's testimony was not hearsay. Furthermore, he was cross-examined
so there could not have been a confrontation clause violation. Thus, Appellant's
claim fails.
STATE'S RESPONSE TO POINT OF ERROR VI
THE EVIDENCE WAS LEGALLY SUFFICIENT TO CONVICT GARRAWAY
OF THEFT OF PROPERTY VALUED AT $1,500.00 OR MORE BUT LESS
THAN $20,000.00.
In his final issue, Appellant argues that the evidence was legally insufficient.
Evidence is legally sufficient if, considering all of the evidence in the light most
favorable to the verdict, a jury was rationally justified in finding guilt beyond a
reasonable doubt." The Code of Criminal Procedure states direct evidence is not
"^•tex. R.EVID. 801.
6 RR 27.
"6RR27.
" Brooks V. State, 323 S.W.3d 893 (Tex. Crim. App. 2010).
Page 14
required and circumstantial evidence may be used to prove lack of consent in theft
cases alleging a continuing scheme or course of conduct/^
The evidence was legally sufficient to identify the victims, prove lack of
consent, and the value of the property. Five victims testified/® Detective Jarman
testified to the other victims' identities, how he obtained them, and that he returned
their property to them.^° The codefendant testified neither he nor the defendant had
consent to take any of the victims' property.®' Both defendants sold items to pawn
shops; they did not pawn the items. When selling the items, they affirmed they were
the owners of the property sold." Detective Mark Jarman testified to the new value
of many of the stolen electronics, and calculated the money value the two defendants
received fi-om the pawn shops at $2,875." The Leads Online Exhibit number 36
listed the pay out to the defendants fi^om the pawn shops. The codefendant testified
to the value of the electronics and affirmed that he agreed with the individual pawn
records and the payout the detective determined they received. Above all, the
defendant testified, and admitted to everything but entry into the habitations.®''
Tex. Code Crim. Proc. Art. 38.39.
4 RR 38, 4 RR 46, 4 RR 54, 4 RR 69, 4 RR 75.
6 RR 27.
5 RR 86.
State's Exhibits No. 30, 31, 33, 34, and 35.
"6RR71.
®^6RR 76-111.
Page 15
Viewing this testimony in a Hght most favorable to the verdict, the jury was rationally
justified in finding guilt beyond a reasonable doubt. Appellant's final claim fails.
CONCLUSION
The judge properly charged the jury with the lesser included offense of theft.
The Court did not abuse it's discretion in adniitting evidence. The evidence was
legally sufficient to support a finding of guilt.
PRAYER
Wherefore, premises considered, the State respectfiilly prays that the Court
overrule Appellant's issues, AFFIRM the trial court, and grant the State all relief to
which it is justly entitled.
Respectfiilly submitted.
Ben Moore
Asst. Criminal District Attorney
712 S. Stagecoach Trail, Suite 2057
San Marcos, Texas 78666
State Bar No. 24042522
benjamin.moore@co.hays.tx.us
Attorney for the State of Texas
Page 16
CERTIFICATE OF COMPLIANCE WITH
TEX.R.APP.PROC.. RULE 9.4
I certify that this brief contains 2^ 1^1 words, exclusive of the caption,
identity of parties and counsel, statement regarding oral argument, table of contents,
index of authorities, statement of the case, statement of issues presented, statement of
jurisdiction, statement of procedural history, signature, proof of service, certification,
certificate of compliance, and appendix.
Ben Moore
Asst. Criminal District Attorney
CERTIFICATE OF SERVICE
I certify that a true copy of the foregoing brief has been e-delivered to:
Ellic Sahualla
600 West 13*^ Street
Austin, Texas 78701
on this the day of March, 2015.
Ben Moore
Asst. Criminal District Attorney
Page 17