Ronicesha Cherron Wearren v. State ( 2015 )

ACCEPTED
03-15-00445-CR
8003651
THIRD COURT OF APPEALS
AUSTIN, TEXAS
11/30/2015 9:14:38 AM
JEFFREY D. KYLE
CLERK
No. 03-15-00445-CR
IN THE COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
FOR THE THIRD JUDICIAL DISTRICT OF AUSTIN, TEXAS
TEXAS AT AUSTIN, TEXAS 11/30/2015 9:14:38 AM
JEFFREY D. KYLE
Clerk
********
RONICESHA CHERRON WEARREN
VS.
THE STATE OF TEXAS
********
ON APPEAL FROM THE 426th DISTRICT COURT
OF BELL COUNTY, TEXAS
Cause No. 73,714
******
STATE’S BRIEF
******
HENRY GARZA
DISTRICT ATTORNEY
BOB D. ODOM
ASSISTANT DISTRICT ATTORNEY
P.O. Box 540
Belton, Tx 76513
(254) 933-5215
FAX (254) 933-5704
DistrictAttorney@co.bell.tx.us
SBA No. 15200000
Oral Argument Not Requested
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TABLE OF CONTENTS
ITEM PAGE
Index of Authorities …………………………………............................................. 3
Statement Regarding Oral Argument ………………………………………... 4
Statement of the Case ………………………………………………………………. 4
Statement of Facts …………………………………………………………………… 5
Summary of State’s Argument ………………………………………………….. 9
Argument and Authorities ……………………………………………………….. 10
First Issue on Appeal ……………………………………………………… 10
WAS EVIDENCE SUFFICIENT TO PROVE
VALUE OF THE PROPERTY?
Standard of Review ……………………………………………….. 10
Application and Analysis ……………………………………….. 11
Second Issue on Appeal ………………………………………………….. 13
WAS EVIDENCE SUFFICIENT TO PROVE
PROPERTY UNLAWFULLY APPROPRIATED
WITH INTENT TO DEPRIVE THE OWNER?
Standard of Review ………………………………………………. 14
Application and Analysis ………………………………………. 14
Prayer ……………………………………………………………………………………. 19
Certificate of Compliance with Rule 9 ………………………………………. 20
Certificate of Service ……………………………………………………………….. 20
2
INDEX OF AUTHORITIES
CASES PAGE
Brooks v. State, 323 S.W.3d 893 (Tx. Cr. App. 2010) ………………….. 11
Godinez v. State, No. 08-12-00218-CR, 2014 Tex. App. ………………. 16
LEXIS 10524 (Tx. App. El Paso 8th Dist. 2014 no pet.),
not designated for publication)
Ingram v. State, 261 S.W.3d 749 ……………………………………………… 17
(Tx. App. Tyler 12th Dist. 2008 no pet.)
Isassi v. State, 330 S.W.3d 633 (Tx. Cr. App. 2010) ……………………. 11
Jackson v. Virginia, 443 U.S. 307 (1979) …………………………………… 10, 11
McGee v. State, 715 S.W.2d 838 ………………………………………………… 12, 13
(Tx. App. Houston 14th Dist. 1986 no pet.)
Sullivan v. State, 701 S.W.2d 905 (Tx. Cr. App. 1986) ………………..... 12
Will. v. State, 235 S.W.3d 742 (Tx. Cr. App. 2007) ……………….. 11
Worsham v. State, 120 S.W. 439 (Tx. Cr. App. 1909) ………………….. 17
OTHER
Texas Penal Code
Section 1.07(a)(35) ………………………………………………………… 18
Section 31.08 ………………………………………………………………….. 13
Section 31.08(a) ……………………………………………………………… 11, 13
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STATEMENT REGARDING ORAL ARGUMENT
The only issues in this case are the sufficiency of the evidence to
prove value and to prove the culpable mental state. The record is clear
and the law is settled. The briefs of the parties are complete and there is
no need for oral argument. The State does not desire oral argument and
respectfully requests that the Appellant’s request for oral argument be
denied.
STATEMENT OF THE CASE
The Appellant, Ronicesha Cherron Wearren, was charged by
indictment with the state jail felony offense of theft. The indictment
alleged that she unlawfully appropriated, by acquiring or exercising
control over property, to-wit: fence panels, of the value of $1,500 or
more but less than $20,000, from Juan Rodriguez, the owner thereof,
without the effective consent of the owner and with the intent to
deprive the owner of the property. (CR-4).
She was tried before a jury in the 426th District Court of Bell
County, Texas, Judge Fancy Jezek presiding. The jury found her guilty as
charged in the indictment. (CR-28; RR7-35). The same jury assessed her
punishment at 14 months in state jail. (CR-32; RR7-55).
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The Appellant gave timely notice of appeal (CR-36) and the trial
court certified her right to do so. (CR-34).
STATEMENT OF FACTS
Juan Rodriguez purchased a 5.4 acre lot in a residential
development in Killeen called Creek Place. (RR5-23, 31). It was
surrounded by occupied residences. (RR5-23). Mr. Rodriguez began
working to clear the land in order to have a house built on it. (RR5-23).
He kept a large white truck, a backhoe, and a small tractor called a Skid
Steer on the property which he used to remove brush. (RR5-24). The lot
was fenced in on three sides by the neighbors’ fences. (RR5-52).
Mr. Rodriguez, who had retired from the military after ten years
as a mechanic (RR5-22, 47), agreed to do some mechanical work on a
vehicle belonging to a friend and, in exchange for his work, agreed to
take in trade some 25 fence panels to be used to fence in the front of his
property. (RR5-24, 25). He estimated the value of his work for his
friend at around $3,000.00. (RR5-25).
Rodriguez and his wife took the fence panels to the property and
stacked them up against a tree that was about 160 feet from the street.
(RR5-31, 39; RR6-96). They chose that location purposely in order to
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keep them away from the street and keep them out of the dirt and any
moisture so they would not rust. (RR6-96). They did not leave any of
the panels laying down in the grass nor near the street. (RR5-37; RR6-
96).
On Tuesday Mr. Rodriguez and a friend worked on the land until
sometime late in the evening. When they left the fence panels, vehicles,
and other items were in place on the property. (RR5-60). When he
returned the following Sunday, however, Rodriguez found his fence
panels gone, as well as a pop-up deer blind and some propane heaters,
tanks, and chairs that had been inside the blind. (RR5-65). He reported
the incident to the Bell County Sheriff’s Office. (RR5-44).
Early the next morning, Mr. Rodriguez went to Centex Scrap and
Metal to see if they had seen his fence panels. (RR5-45). He spoke to
employee Damien Deville who confirmed that a regular customer had
brought in fence panels but declined to name that person. Rodriguez
notified the Sheriff’s Office. (RR5-46, 87; RR6-24, 25).
Bell County Deputy Sheriff Justin Kelly went to Centex Scrap and
Metal and spoke to Deville. Deville identified pictures of the fence
panels that Rodriguez had provided to the officer. (RR6-27). Deville
confirmed that he had bought them from a regular customer and had
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noticed that they did not fit into her minivan. (RR5-87; RR6-28). While
Deputy Kelly was taking his statement, Deville advised that the
customer and the van in question was, at that moment driving over the
scales. (RR6-29).
The Deputy confronted the Appellant, who was the occupant of
the van and she readily admitted that she had taken the fence panels
from the lot in Creek Place subdivision and had sold them to Centex.
(RR6-29, 30, 31). She had delivered two loads of fence panels to them
that Sunday. She admitted that she did not have permission to enter the
property. (RR6-30). The Appellant claimed that two of the fence panels
had been near the road and she had concluded that they had been
abandoned. (RR6-31, 42). She also admitted, however, that she had
then walked upon the property and rounded up the remaining panels
that she claimed were scattered among the grass on the lot. She
admitted taking other “scrap” but could not remember what it was.
(RR6-41). The Appellant led the Deputy to the place where she had
acquired the fence panels. It was Mr. Rodriguez’ lot. (RR6-38, 39).
The fence panels had been quickly crushed into a metal block at
the scrap yard. Only two or three remained on the property. (RR5-50).
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Juan Rodriguez did not know whether the fence panels he had
received in exchange for his mechanic work were new or used. (RR5-
30). He did know that they had originally come from Lowe’s Home
Improvement Center. (RR6-47). The panels were not available for
inspection due to the actions of the scrap yard after they were sold to
them by the Appellant. Deputy Kelly checked with Lowe’s and found the
cost to replace the fence panels that were taken to be $4,000.00. (RR6-
48, 49).
At trial the Appellant testified. She admitted that she took the
fence panels from the lot and scrapped them. (RR6-71). She claimed
that she saw two panels near the road and believed them to be
abandoned. She then walked further onto the property and saw fence
panels laying in the grass that were the same and assumed that they
must also have been abandoned. (RR6-71, 72, 77, 82). She conceded,
however, that they did look as if they had been stacked up. (RR6-77).
She and her 7 year old son carried all of the fence panels to a place near
the road and then took two trips to take them all to the scrap yard to
sell. (RR6-72, 74, 75). She claimed that she greeted a neighbor but did
not inquire of her concerning the ownership of the property. (RR6-86,
87). Instead, she assumed that the lot was just an illegal dump site in
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spite of the fact that is was surrounded by occupied houses. (RR6-72,
83). She denied that the truck, backhoe, and tractor were there at the
time. (RR6-89, 90).
Juan Rodriguez, the owner of the lot and the fence panels, did not
know the Appellant and did not give her permission to take them. (RR5-
48).
Sheriff’s Deputy Jason Davis, who regularly patrols the area
described Creek Place as a subdivision that had been about 90%
developed with houses on the majority of the lots. He described the
homes there as “high end”. The only entrance or exit to the subdivision
was clearly marked with a sign identifying it as “Creek Place”. (RR5-71,
72, 82, 83).
SUMMARY OF STATE’S ARGUMENT
The owner did not know whether the property was new or used
and had taken it in trade for labor. Due to the actions of the Appellant
they were unavailable for inspection and a determination of value.
Because the fair market value could not be ascertained, the proper
standard for determining the value of the property was the cost to
9
replace. The evidence was sufficient to prove the value as alleged in the
indictment.
The evidence that the Appellant entered upon the real property of
the owner without his consent and removed his personal property and
sold it for her own profit was sufficient for a rational jury to conclude
that she unlawfully appropriated the property with the intent to deprive
the owner.
ARGUMENT AND AUTHORITIES
First Issue on Appeal
Was the evidence sufficient to prove beyond a reasonable doubt
that the value of the property taken was $1,500 or more, but less than
$20,000?
Standard of Review
Due process of law requires that the State prove, beyond a
reasonable doubt, every element of the offense charged in the
indictment. Jackson v. Virginia, 443 U.S. 307, 313 (1979). In reviewing
the sufficiency of the evidence to support the conviction the court must
consider all of the evidence in the case in the light most favorable to the
verdict in order to determine whether, based upon the evidence and
10
reasonable inferences therefrom, a rational trier of fact could have
found the essential elements of the offense beyond a reasonable doubt.
Brooks v. State, 323 S.W.3d 893, 899 (Tx. Cr. App. 2010).
In reviewing the evidence in the light most favorable to the
verdict, the court must presume that the trier of fact resolved conflicts
in the testimony, weighed the evidence, and drew reasonable inferences
from that evidence in a manner that supports the verdict. Jackson at
318. The court must consider only whether the fact finder reached a
rational decision. Isassi v. State, 330 S.W.3d 633, 638 (Tx. Cr. App. 2010).
The weight and credibility of the evidence is solely for the fact
finder and the court will not re-evaluate those matters nor substitute its
judgment for that of the fact finder. Isassi at 638; Williams v. State, 235
S.W.3d 742, 750 (Tx. Cr. App. 2007).
Application and Analysis
Section 31.08(a) of the Texas Penal Code provides that, with
respect to theft cases, value is the fair market value of the property at
the time and place of the offense, or, if the fair market value cannot be
ascertained, the cost of replacing the property within a reasonable time
after the theft. Thus where fair market value cannot be ascertained,
replacement cost is the proper measure of value.
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In this case the owner did not purchase the fence panels, but took
them in trade for his labor. He testified that he did not know if the fence
panels were new or had been used or how old they were. Because the
Appellant sold them to a scrap yard that immediately crushed them into
a metal brick they were unavailable for examination and an estimation
of value. Their fair market value could not be ascertained.
The investigating officer inquired at Lowes, the original source of
the fence panels and learned that the total replacement cost of the fence
panels taken by the Appellant was $4,000.00. (CR6-50). The Appellant
offered no evidence to contest or contradict that figure.
A similar case is McGee v. State, 715 S.W.2d 838 (Tx. App. Houston
14th Dist. 1986 no pet.). In that case furniture was stolen from a rental
furnished apartment. It was never recovered. The owner testified that
he had no idea when he had seen the furniture last and could not testify
as to its age or condition at the time it was stolen. He did ascertain and
testify as to the cost to replace the furniture. McGee at 839.
Citing Sullivan v. State, 701 S.W.2d 905, 909 (Tx. Cr. App. 1986),
the court noted that an owner could testify to the value of his property,
either as to fair market value or replacement cost. Under the facts of the
case the court held that the fair market value could not be ascertained
12
because the furniture was not recovered and, ignorant of its condition
or age, the owner could not testify to such value. Therefore, it was
proper to testify to the cost to replace and the evidence as to value was
sufficient and the jury properly instructed to consider replacement
cost.1 McGee at 840.
In this case the owner, Juan Rodriguez, acquired the fence panels
in trade. He did not know their age or if they had been previously used.
He valued the work he did for his friend in exchange for the fence panels
at $3,000.00. The Deputy Sheriff contacted the home center where the
panels were originally obtained and found the cost to replace to be
$4,000; well in excess of the $1,500.00 minimum for state jail felony
theft. The evidence was certainly sufficient, when viewed in the light
most favorable to the verdict, for a rational jury to find that the value of
the property taken was between the amounts charged in the indictment.
Second Issue on Appeal
Was the evidence insufficient to prove beyond a reasonable doubt
that the Appellant unlawfully appropriated the property with the intent
1
In this case the jury was instructed, without objection by Appellant, as to the provisions
of Section 31.08 regarding value. (CR-24).
13
to deprive the owner of the property because the Appellant testified
that she thought it had been abandoned?
Standard of Review
The standard of review is identical to the first issue on appeal.
Application and Analysis
The Appellant, relying entirely upon her own testimony, contends
that the evidence was insufficient to prove that she had the intent to
deprive the owner of the property because she thought it was
abandoned. She utterly ignores the rest of the evidence in the case.
While she concedes that intent may be shown from her acts and words,
she only views them with respect to her own self-serving interpretation.
The Appellant claimed that she had found two of the more than
twenty fence panels near the road and concluded that they must have
been abandoned. Then, entering far into Mr. Rodriguez’ lot, she saw the
other fence panels and apparently reasoned that if the two by the
roadway were abandoned, the remaining identical panels must also
have been abandoned. Claiming that the truck, backhoe, and other
equipment were not on the lot, and ignoring the occupied homes
surrounding the lot, she also decided that it was an illegal dumping
ground. She and her son then went all about the lot collecting the fence
14
panels, hauling them to the road and making two trips in order to sell
them to the scrap metal yard.
On the other hand, Juan Rodriguez, the owner of the lot and of the
fence panels, testified that he was in the process of clearing the lot in
preparation for building a house on it. His truck, backhoe, and tractor
used in that project were on the lot. He had obtained the metal fence
panels in order to fence the front of the lot and he and his wife had
carefully stacked them 160 feet away from the road and against the
trees to protect them from the elements. He stated that he did not ever
abandon that property, but rather trusted that they would be safe there
for use in the project.
The Appellant’s acts which point to an intent to deprive the owner
of the property include going on to his lot in a residential subdivision
without seeking permission or even inquiring concerning its ownership;
rounding up a large number of fence panels from deep within the lot
and dragging them to the road; hauling them down to the scrap metal
salvage yard in two separate loads; and selling them for her own profit.
Her self-serving protestations after the fact that she thought the lot was
an illegal dump ground, and that she determined the all of the fence
panels found some 160 feet inside the lot were abandoned, do not
15
negate her actions. She simply ignores everything she did and relies on
her own interpretations of it, which were rejected by the jury.
The jury was the exclusive judge of the facts proven and the
weight to be given to the testimony and it obviously accepted as true
Rodriguez’ testimony. The mere fact that the Appellant testified that
she believed the panels to have been abandoned did not obligate the
jury to accept that testimony. The test is whether or not there was
sufficient evidence for a rational jury to find that the Appellant
appropriated the property with the intent to deprive the owner of it.
Deference must be given to the determination of the jury and if the
record contains conflicting inferences, the court must presume that the
jury resolved those facts in favor of the verdict and must defer to that
resolution. Brooks at 894-95.
In Godinez v. State, No. 08-12-00218-CR, 2014 Tex. App. LEXIS
10524 (Tx. App. El Paso 8th Dist. 2014 no pet.), not designated for
publication, the defendant similarly relied upon his own testimony that
he took property that had been discarded and abandoned. The owner,
however, testified that such was not the case. The court of appeals held
that the jury was the judge of the credibility of the witnesses and had
the sole responsibility to resolve conflicts between the witnesses for the
16
State and defendant and, viewing the evidence from the standpoint
most favorable to the jury and in light of the jury’s determination in
favor of the State, the evidence was sufficient.
In this case, moreover, the Appellant admittedly went upon the
land owned by Mr. Rodriguez and took property she deemed to have
been abandoned. A similar situation occurred in Ingram v. State, 261
S.W.3d 749 (Tx. App. Tyler 12th Dist. 2008 no pet.). There the defendant
went upon the real property of the owner and entered a structure
where he took property, claiming that it had been abandoned. On
Appeal he complained about the trial court’s denial of a charge on
mistake of fact on that basis.
Citing Worsham v. State, 120 S.W. 439 (Tx. Cr. App. 1909), the
Ingram court noted that the word “abandon” means a giving up, a total
desertion, an absolute relinquishment; and includes both the intention
to abandon and an act by which that intention is carried into effect. The
court said that it is essential in order to raise the issue of abandonment,
that there be a concurrence of the intention to abandon and an actual
relinquishment of the property in order that it may be appropriated by
“the next comer.” The court stated that an individual may abandon his
17
property and, upon abandonment, it is the property of no one until it
possessed with the intention to acquire title. Ingram at 753.
However, while it is possible to acquire abandoned without
committing theft, theft is committed where the defendant unlawfully
acquires property with the intent to deprive the owner of the property.
The owner is a person who has title to property, possession of property,
whether lawful or not, or a greater right to possession of property than
the actor. Section 1.07(a)(35), Texas Penal Code. If, therefore, a person
enters private property without the consent of the owner and takes
possession even of abandoned property, he nevertheless commits a
wrongful act and no title to the property is created in him because the
owner of the real property where the stolen personal property is found
has a greater right to possession than does the trespasser and is thus
the owner of that personal property and the taking deprives him of it.
Ingram at 754. Nothing in the evidence shows an intention of the part
of Mr. Rodriguez to abandon his property nor a concurrent act of
abandonment. Instead, it shows every intention to retain and use that
property.
There was ample evidence for a rational jury to find that the fence
panels had not been abandoned by their owner and that the Appellant
18
unlawfully appropriated them with the intent to deprive the owner of
them. Further, even had the panels been abandoned there is no
question that they were located on the real property of Mr. Rodriguez
and that the Appellant entered upon the real property and took them
without his consent. She thus unlawfully took the property with the
intent to deprive Mr. Rodriguez who, as the person with the greater
right to possession of the panels was the owner, with the intent to
deprive him of them.
PRAYER
The State of Texas respectfully prays that the judgment of
conviction herein be, in all things, be affirmed.
Respectfully Submitted,
HENRY GARZA
District Attorney
/s/ Bob D. Odom
BOB D. ODOM
Assistant District Attorney
P.O. Box 540
Belton, Tx 76513
(254) 933-5215
FAX (254) 933-5704
DistrictAttorney@co.bell.tx.us
SBA No. 15200000
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CERTIFICATE OF COMPLIANCE WITH RULE 9
This is to certify that the State’s Brief is in compliance with Rule 9
of the Texas Rules of Appellate Procedure and that portion which must be
included under Rule 9.4(i)(1) contains 3,148 words.
/s/ Bob D. Odom
BOB D. ODOM
Assistant District Attorney
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of this brief has been
served upon, Kristen Jernigan, Counsel for Appellant, by electronic
transfer via Email, addressed to her at Kristen@txcrimapp.com on this
30th day of November, 2015.
/s/ Bob D. Odom
BOB D. ODOM
Assistant District Attorney
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