Carla Crawford v. State ( 2000 )

99-00366 Crawford v State of Texas.wpd No. 04-99-00366-CR Carla CRAWFORD, Appellant v. The STATE of Texas, Appellee From the County Court at Law No. 1, Bexar County, Texas Trial Court No. 713684 Honorable Al Alonso, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: April 19, 2000

AFFIRMED

A jury convicted appellant Carla Crawford of burglary of a coin-operated machine. In three issues on appeal, Crawford challenges the legal and factual sufficiency of the evidence and the trial court's ruling on extraneous evidence. We affirm the judgment of the trial court.

Factual and Procedural Background

Crawford lived at the Spring Hill apartment complex in San Antonio, as did maintenance person Maria Trevino ("Trevino"). Part of Trevino's duties included monitoring the coin-operated vending machines located in the laundry room area. In addition to reporting any malfunctions, Trevino's job responsibility also included ensuring the machines remained undamaged by graffiti.

Michael Villanueva ("Villanueva"), a San Antonio Police Officer, also lived at the complex. He worked at the complex as an off-duty security officer between the hours of eleven in the evening until three in the morning. Close to midnight on December 20, 1998, he arrested Crawford for burglary of the coin-operated machine in the laundry room. Tex. Pen. Code Ann. § 30.03 (Vernon 1994).

After a jury trial, Crawford was convicted of the offense and sentenced to 90 days incarceration. The trial court suspended her sentence and entered an order of 9 months probation.

Sufficiency of the Evidence

In her first and second issues on appeal, Crawford challenges the legal and factual sufficiency of the evidence. In evaluating the legal sufficiency of the evidence, this court, after viewing the evidence in the light most favorable to the jury's verdict, must determine whether any rational trier of fact would have found beyond a reasonable doubt the essential elements of the offense. Jackson v. Virginia, 443 U.S. 307, 319 (1979). We apply this standard to both direct and circumstantial evidence cases. Geesa v. State, 820 S.W.2d 154, 161 (Tex. Crim. App. 1991). In conducting this review, an appellate court must look to whether the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).

Section 30.03 of the Texas Penal Code provides:

(a) A person commits an offense if, without the effective consent of the owner, he breaks or enters into any coin-operated machine, coin collection machine, or other coin-operated or coin collection receptacle, contrivance, apparatus, or equipment used for the purpose of providing lawful amusement, sales of goods, services, or other valuable things, or telecommunications with intent to obtain property or services.

(b) For purposes of this section, "entry" includes every kind of entry except one made with the effective consent of the owner.

Tex. Pen. Code Ann. § 30.03 (Vernon 1994).

Crawford argues the evidence was both legally and factually insufficient to support the conviction because Trevino failed to qualify as the "owner" of the machine, and therefore, could not testify about lack of consent under the statute. See Tex. Pen. Code Ann. § 30.03 (Vernon 1994). "Owner" is defined as a person who has a title to the property, possession of the property, or a greater right of possession of the property than the person charged. Tex. Pen. Code Ann. § 1.07(35)(A) (Vernon 1994).

The Court of Criminal Appeals rejected an argument similar to the one advanced by Crawford in Smith v. State, 638 S.W.2d 476, 477 (Tex. Crim. App. 1982). In Smith, a jury convicted the defendant of burglary of a coin-operated machine, specifically parking meters. See Tex. Pen. Code Ann. § 30.03 (Vernon 1994). Rejecting Smith's complaint that the testimony from the chief collector in the parking meter division failed to establish ownership in the City, the court held ownership could be demonstrated by oral testimony. Smith, 638 S.W.2d at 478-79. Coupled with the testimony from the chief parking meter collector, ample evidence existed to show the City owned the meters and the defendant lacked consent to take the money. Id.

Following the reasoning of Smith, Crawford's ownership argument fails. Trevino testified a significant part of her duties as a maintenance worker at the complex included "keeping an eye out" for the vending machine on the premises because it was often burglarized. Trevino further stated any time the machine malfunctioned, it was her responsibility to contact the owner, a man named Albert, for repair. Although the record suggests actual ownership in Albert, through her maintenance responsibilities, Trevino qualifies as a statutory "owner" with a greater right of possession in the machine than Crawford. See Tex. Pen. Code Ann. § 30.03 (Vernon 1994); Casarez v. State, 468 S.W.2d 412, 413-14 (Tex. Crim. App. 1971)(relying upon arresting officer's testimony to show defendant lacked consent to break into coin-operated vending machine).

Crawford also contends the evidence failed to show that she did not pay for the items she attempted to retrieve from the machine. The record contains ample evidence to the contrary. At around 8:00 p.m. on December 20, 1998, Trevino observed Crawford at the vending machine. She testified Crawford was on her knees with her arm up to her elbow inside the machine. Crawford saw Trevino watching her and quickly removed her hand and exited the laundry room area. Later the same night around midnight, Officer Villanueva testified he observed Crawford and a male companion at the vending machine. Crawford's companion leaned against the machine while Crawford was on her knees with her arm up the machine. Villanueva testified the area was well lit and free from obstructions so he could clearly identify Crawford as the woman on the ground. Just before he reached the two, Villanueva testified Crawford's companion ran away. Villanueva arrested Crawford and later found four or five bags of crackers and potato chips and other items on the ground by the vending machine. The testimony from both Trevino and Villanueva sufficiently establishes that Crawford did not have consent to break into the vending machine. From the testimony introduced at trial, a rational trier of fact could have found Crawford guilty of the offense beyond a reasonable doubt. See Geesa, 820 S.W.2d at 161.

Turning to a factual sufficiency review, we reach the same result. In Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996), the Texas Court of Criminal Appeals announced the general standard for reviewing the factual sufficiency of the evidence to support a criminal conviction. Under the general standard, we must view all the evidence without the prism of "in the light most favorable to the prosecution" and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. The Court later explained that three major principles guide us in conducting this review. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).

First, we review the jury's weighing of the evidence in a deferential manner to avoid substituting our judgment for that of the jury. See id. Our evaluation must not substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). The weight to be given contradictory testimonial evidence is within the sole province of the jury, because it turns on an evaluation of credibility and demeanor. Cain, 958 S.W.2d at 408-09. The jury is also entitled to draw reasonable inferences from circumstantial evidence to ultimate facts. Kelley v. State, 968 S.W.2d 395, 398 (Tex. App.--Tyler 1998, no pet.). Where conflicting evidence is presented, the jury's verdict is generally regarded as conclusive unless the verdict is "manifestly unjust," "shocks the conscience," or "clearly demonstrates bias." Santellan, 939 S.W.2d at 165.

Second, we must support a finding of factual insufficiency with a detailed explanation so the Texas Court of Criminal Appeals can ensure that we accorded proper deference to the jury's findings. Cain, 958 S.W.2d at 408-09. In the event we reverse a lower court's decision, we must state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict. See id.

Third, we must review all of the evidence without viewing it in the light most favorable to the verdict. See id. at 408 (emphasis added).

Crawford reasserts her argument that the evidence was factually insufficient to establish Trevino as the "owner" of the machine. See Tex. Pen. Code Ann. § 30.03 (Vernon 1994). We cannot say from the eyewitness testimony discussed above that the verdict was manifestly unjust. See Santellan, 939 S.W.2d at 165. We overrule Crawford's first two issues.Extraneous Evidence

In her third issue, Crawford complains the trial court erred by admitting testimony related to previous alleged attempts to burglarize the machine.

We review challenges to the admissibility of evidence under an abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). Evidence of prior bad acts is inadmissible to prove conformity therewith. Tex. R. Evid. 404(b). However, such evidence is admissible for other purposes such as to show motive, intent, identity, common scheme or other purpose, provided that the State provides the accused with reasonable notice of intent to introduce the evidence. Tex. R. Evid. 404(b); Montgomery, 810 S.W.2d at 391.

Crawford objects to the admission of Trevino's testimony reciting multiple instances where Crawford attempted to burglarize the vending machine at the complex. At the outset, the State argues Crawford waived any complaint on appeal for untimely objecting to the evidence. See Tex. R. App. P. 33.1(a)(requiring timely objection to preserve error for appellate review). While the record supports the waiver argument, the evidence is also admissible under Texas Rule of Evidence 404(b).

Crawford's defense theory offered at trial was that she paid for the items in the machine and was erroneously arrested in her attempt to retrieve them. The evidence offered by the State is necessary to rebut this theory and show the incident was not an isolated occurrence. See Koontz v. State, 868 S.W.2d 27, 29 (Tex. App.-Fort Worth 1993, pet. ref'd)(allowing admission of prior robbery where relevant to make defensive theory less probable). Trevino testified that on December 17th and 18th, she observed Crawford and her companion at the vending machine. Crawford was on her knees holding a coat hanger which she used to retrieve items from the machine. Trevino stated her companion was the "lookout" person. Trevino further testified that each time she observed the behavior she called the police, but, they arrived too late on both occasions.

Crawford also objects to Trevino's testimony related to earlier events which occurred on December 20th, the night of the arrest. The State responds and we agree, the testimony served many permissible other purposes under Texas Rule of Evidence 404(b). First, it showed Crawford's intent to commit the burglary. Trevino testified she observed Crawford just three hours prior to her arrest down on her knees with her arm up to her elbow extended into the machine. See Koontz, 868 S.W.2d at 27 (admitting evidence of prior robbery to show intent to commit subsequent robbery). The State contends this testimony reveals Crawford's earlier attempt to burglarize the machine was thwarted by Trevino's presence; therefore, Crawford returned later the same evening to accomplish her goal. Second, the evidence demonstrated a common scheme to steal from the machine. See Mares v. State, 758 S.W.2d 932, 936-37 (Tex. App.-El Paso 1988, pet. ref'd)(acknowledging that extraneous offenses must demonstrate the steps taken toward the accomplishment of a plan). Trevino's testimony demonstrates an identifiable behavioral pattern as Crawford returned again and again to the same machine and retreated as soon as she saw Trevino. Trevino testified each time she observed Crawford, she and her companion took turns serving as "look out" while the other party attempted to retrieve items from the machine.

Accordingly, we overrule Crawford's third issue on appeal and affirm the judgment of the trial court.

Catherine Stone, Justice

DO NOT PUBLISH