Christopher Dione Alexander v. State ( 2019 )

Opinion issued July 16, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-00496-CR
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CHRISTOPHER DIONE ALEXANDER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Case No. 1557693
MEMORANDUM OPINION
A jury found appellant, Christopher Dione Alexander, guilty of the offense
of theft.1 After he pleaded true to the allegations in two enhancement paragraphs
that he had twice been previously convicted of felony offenses, the trial court
1
See TEX. PENAL CODE ANN. § 31.03(a).
assessed his punishment at confinement for eight years. In his sole issue, appellant
contends that the evidence is legally insufficient to support his conviction.
We modify the trial court’s judgment and affirm as modified.
Background
A Harris County Grand Jury issued a true bill of indictment, alleging that
appellant, on or about July 5, 2017, “unlawfully appropriate[d], by acquiring and
otherwise exercising control over property, namely, cash money owned by [the
complainant] . . . with the intent to deprive the [the complainant] of the property.”
At trial, Houston Police Department (“HPD”) Officer C. Dorton testified
that “jugging” or “bank jugging” is where “people sit in front of banks” and watch
for other individuals to exit after they have withdrawn money. They then follow
the person who has withdrawn money to another location to “rob that person of
the[] money.” Dorton testified that he is part of a team that investigates these types
of crimes regularly. He further explained that because it is not illegal to park in a
bank parking lot or to follow another person, it is difficult to know who will be
targeted. In investigating these types of offenses, HPD uses a plain-clothed law
enforcement officer to act like a bank customer and then waits for a person
intending to commit bank jugging to follow the plain-clothed officer. Dorton
further explained that HPD uses “bait money” in its “bank-jugging” investigations.
In order to avoid losing the “bait money” during an operation, an HPD officer will
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attach the “bait money” to a “steel security cable” which is secured to the vehicle
driven by the plain-clothed officer.
In July 2017, HPD received “a complaint of an increase of bank juggings
occurring off of Washington Avenue” in Houston, Texas, “where customers were
being followed from [a] bank and they were either having their purses snatched or
their windows broken and their money stolen.” In response, on July 5, 2017,
Officer Dorton and other HPD law enforcement officers went to a Bank of
America off of Washington Avenue “to hopefully try to catch the guys who were
doing it.”
At the Bank of America, Officer Dorton and other law enforcement officers
observed a black, “small, boxy SUV” that was “parked in front of the bank.” “No
one got in or out of the [SUV], which is consistent with what bank jugging
suspects do.” And the SUV remained parked outside of the bank for “an extended
period of time, more than 10 minutes.” The SUV left the bank and Dorton
followed it to a gas station where he saw the driver of the SUV, who he identified
as appellant, and a “heavyset, black female in the front passenger seat” with the
“seat laid back all the way.” The SUV returned to the bank, where it “parked again
positioned with the view to watch the front doors.”
At that point, a plain-clothed law enforcement officer entered the bank with
$2,500 in “bait money” to act as a customer. He walked out of the bank “with a
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little bank bag” and drove to a pawn shop in an unmarked City of Houston truck.
Appellant followed the plain-clothed officer in his SUV.
The plain-clothed officer got out of his truck and entered the pawn shop
without carrying anything in his hands. Appellant then parked his SUV next to the
plain-clothed officer’s truck. After exiting his truck, appellant used a “spring-
loaded window punch” to break the passenger-side window of the plain-clothed
officer’s truck. Appellant reached in through the broken window and pulled the
bank bag containing the “bait money” out of the window. Once he realized that
the bag of “bait money” was attached to a security cable, appellant abandoned the
“bait money” and fled the scene. Officer Dorton and other law enforcement
officers ultimately apprehended appellant nearby.
HPD Sergeant R. Watson testified that he was the plain-clothed officer who,
on July 5, 2017, carried the “bait money” out of the Bank of America when Officer
Dorton and other law enforcement officers went to the bank to investigate “bank
jugging” on that day. He testified that after he exited the Bank of America on that
day, he got into his truck and put the “bait money” into the glove box, securing it
with a cable. Watson then drove to a pawn shop nearby and went inside, making
sure it was clear that his hands were empty so that it was clear to an observer that
he left the “bait money” inside his truck.
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Standard of Review
We review the legal sufficiency of the evidence by considering all of the
evidence in the light most favorable to the jury’s verdict to determine whether any
“rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); Williams v.
State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Our role is that of a due
process safeguard, ensuring only the rationality of the trier of fact’s finding of the
essential elements of the offense beyond a reasonable doubt. See Moreno v. State,
755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We give deference to the
responsibility of the fact finder to fairly resolve conflicts in testimony, weigh
evidence, and draw reasonable inferences from the facts. Williams, 235 S.W.3d at
750. However, our duty requires us to “ensure that the evidence presented actually
supports a conclusion that the defendant committed” the criminal offense of which
he is accused. Id.
In reviewing the legal sufficiency of the evidence, we treat direct and
circumstantial evidence equally because circumstantial evidence is just as
probative as direct evidence in establishing the guilt of a defendant. Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Circumstantial evidence
constitutes “direct proof of a secondary fact which, by logical inference,
demonstrates the ultimate fact to be proven.” Taylor v. State, 684 S.W.2d 682, 684
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(Tex. Crim. App. 1984). And it alone can be sufficient to establish guilt. Clayton,
235 S.W.3d at 778. Further, the “cumulative force” of all the circumstantial
evidence in a case can be sufficient to support a jury finding of guilt beyond a
reasonable doubt. Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006).
Sufficiency of Evidence
In his sole issue, appellant argues that there is legally insufficient evidence
to support his conviction because he could not have “appropriated” the “bait
money” from the plain-clothed law enforcement officer’s truck because it “was
locked with a steel security cable to the truck’s dash,” which “prevented
[appellant] from gaining control of the money.”
A person commits the offense of theft if he “unlawfully appropriates
property with the intent to deprive the owner of the property.” TEX. PENAL CODE
ANN. § 31.03(a). “Appropriate,” in this context, means “to acquire or otherwise
exercise control over property other than real property.” Id. § 31.01(4)(B).
“Appropriation of property is unlawful” if: (1) “it is without the owner’s effective
consent;” (2) “the property is stolen and the actor appropriates the property
knowing it was stolen by another;” or (3) “property in the custody of any law
enforcement agency was explicitly represented by any law enforcement agent to
the actor as being stolen and the actor appropriates the property believing it was
stolen by another.” Id. § 31.03(b). “[R]emoval of the property from the premises
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is not necessary for commission of the offense of theft. Removal of the object
from its customary location is sufficient to show such reduction to the control or
manual possession as required.” Baker v. State, 511 S.W.2d 272, 272 (Tex. Crim.
App. 1974).2
2
See also Davis v. State, No. 01-17-00587-CR, 2019 WL 1179429, at *6 (Tex.
App.—Houston [1st Dist.] Mar. 14, 2019) (mem. op., not designated for
publication) (in “bank jugging” case, holding evidence sufficient to show
defendant exercised control over backpack full of money where he removed it
from seat of car and pulled through window even though backpack attached to
chain); Willis-Webb v. State, No. 01-15-00727-CR, 2016 WL 6277423, at *3–4
(Tex. App.—Houston [1st Dist.] Oct. 27, 2016, pet. ref’d) (mem. op., not
designated for publication) (holding sufficient evidence to support conviction for
unlawful appropriation even though security guards caused defendant to abandon
merchandise before leaving store); Hicks v. State, No. 12-13-00158-CR, 2014 WL
1922619, at *3 (Tex. App.—Tyler May 14, 2014, no pet.) (mem. op., not
designated for publication) (holding although defendant did not leave store with
jewelry, he was not entitled to attempted-theft instruction because “the act of
carrying away or removing property is not an element of statutory theft”);
Patterson v. State, No. 09-12-00576-CR, 2014 WL 1778373, at *4 (Tex. App.—
Beaumont Apr. 30, 2014, pet. ref’d) (mem. op., not designated for publication)
(defendant on trial for theft of copper wire not entitled to attempted-theft
instruction because “[w]hen [o]fficer . . . saw [defendant] with the roll of wire in
his hand, [defendant] was exercising control over it”); Ragan v. State, No.
12-13-00183-CR, 2013 WL 6797734, at *3 (Tex. App.—Tyler Dec. 20, 2013, no
pet.) (mem. op., not designated for publication) (“When [defendant] and his
codefendant disconnected the transformers, they exercised control over the
property, which is consistent with the penal code’s definition for ‘appropriate.’
. . . There is no evidence that if [defendant] was guilty, he was guilty only of
‘attempted theft.’”); Malone v. State, No. 05-05-01159-CR, 2006 WL 1727727, at
*2 (Tex. App.—Dallas June 26, 2006, pet. ref’d) (not designated for publication)
(holding defendant not entitled to attempted-theft instruction because he “hooked
the trailer to his van and had moved the trailer, although only slightly”); Cantrell
v. State, No. 05-92-01220-CR, 1994 WL 24386, at *2 (Tex. App.—Dallas Jan. 31,
1994, no pet.) (not designated for publication) (“[T]o have the issue of attempted
theft submitted to the jury, the evidence must show that [defendant] intended to
take the necklace, but failed”; “[a]lthough [defendant] argues that he never had
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Here, appellant argues that he “never acquired the [bank] bag” containing
the “bait money” or “exercised control over it” because the “[bank] bag and its
contents remained in the firm control of a steel security cable.” He further argues
that to establish the requisite appropriation in this case, there would need to be
some evidence that appellant had managed to remove the bank bag from the
security cable. Contrary to appellant’s assertions, however, it is undisputed that he
broke the window of the plain-clothed law enforcement officer’s truck, reached
inside the truck, removed the bank bag containing the “bait money” from the
truck’s glove box, and pulled the bank bag outside of the truck’s window. Once
appellant realized that the bank bag was attached to a security cable, he dropped it,
leaving it hanging from the security cable outside of the truck’s window, and fled
the scene. That appellant was ultimately thwarted in his efforts to flee the scene
with the bank bag of “bait money” is of no consequence to our analysis of the
sufficiency of the evidence to support his conviction of theft in this case. See
Westerman v. State, 161 S.W.2d 95, 103 (Tex. 1942) (holding defendant guilty of
offense of theft where he pushed car few blocks down street, but then abandoned it
when car would not start because “it was not necessary that the appropriation be
consummated or completed”). This is because “asportation—the act of carrying
full possession of the necklace, a temporary deprivation with the requisite intent to
permanently deprive sufficiently establishes the crime of theft”).
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away or removing property—is not an element of statutory theft.” Hawkins v.
State, 214 S.W.3d 668, 670 (Tex. App.—Waco 2007, no pet.); see also TEX.
PENAL CODE ANN. § 31.03(a); Barnes v. State, 513 S.W.2d 850, 851 (Tex. Crim.
App. 1974) (holding defendant guilty of offense of theft where he entered car and
started motor even though he was stopped before driving away). In other words, it
is the intent to deprive and not the actual deprivation of the property that informs
our analysis. Here, appellant does not argue that the evidence is insufficient to
support the intent element of the offense of theft. And any exercise of control over
property, other than real property, is an appropriation regardless of the duration of
that control. Palmer v. State, 471 S.W.3d 569, 571 (Tex. App.—Houston [1st
Dist.] 2015, no pet.).
Viewing all of the evidence in the light most favorable to the jury’s verdict,
we conclude that a rational trier of fact could have found that appellant unlawfully
appropriated property with the intent to deprive the owner of the property. See
TEX. PENAL CODE ANN. § 31.03(a). Accordingly, we hold that there is legally
sufficient evidence to support appellant’s conviction.
We overrule appellant’s sole issue.
Modification of Judgment
The State asserts that there is an error in the trial court’s written judgment in
that it states in regard to appellant’s “[p]lea to [o]ffense” that appellant entered a
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plea of “guilty where the record shows appellant entered a plea of “not guilty.”
Therefore, the State requests that this Court modify the trial court’s judgment to
correctly reflect appellant’s plea in this case.
“[A]ppellate court[s] ha[ve] the power to correct and reform a trial court
judgment ‘to make the record speak the truth when [they] ha[ve] the necessary data
and information to do so[] or make any appropriate order as the law and nature of
the case may require.’” Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston
[1st Dist.] 2001, no pet.) (quoting Asberry v. State, 813 S.W.2d 526, 529 (Tex.
App.—Dallas 1991, pet ref’d)). This is true no matter who, or if anyone, has
called the matter to the attention of the appellate court. See French v. State, 830
S.W.2d 607, 609 (Tex. Crim. App. 1992); Dromgoole v. State, 470 S.W.3d 204,
226 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d); see also Asberry, 813
S.W.2d at 529–30 (“The authority of an appellate court to reform incorrect
judgments is not dependent upon the request of any party, nor does it turn on the
question of whether a party has or has not objected in the trial court.”).
Here, the trial court’s written judgment does not accurately comport with the
record in this case in that it states that appellant pleaded “GUILTY” to the offense
of theft. The record, however, reveals that appellant actually pleaded “not guilty.”
Accordingly, we modify the trial court’s judgment in regard to appellant’s
“[p]lea to [o]ffense” to reflect that appellant entered a plea of “NOT GUILTY.”
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See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim.
App. 1993).
Conclusion
We affirm the judgment of the trial court as modified.
Julie Countiss
Justice
Panel consists of Chief Justice Radack and Justices Goodman and Countiss.
Do not publish. TEX. R. APP. P. 47.2(b).
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