No. 05-08-01325-CR
Opinion Filed February 1, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the County Court at Law No. 2, Collin County, Texas, Trial Court Cause No. 002-81564-08.
Before Justices O'NEILL, FRANCIS, and FILLMORE.
Opinion By Justice FILLMORE.
Appellant, Hawdan Adnan Barwari, pleaded not guilty to an information alleging theft of property valued at $500 or more but less than $1,500. The jury convicted him of this offense and the trial court sentenced him to ninety days in jail, suspended for one year. In three issues, he argues that (1) the evidence is legally insufficient to support the verdict; (2) the evidence is factually insufficient to support the verdict; and (3) the trial court erred in admitting hearsay testimony. We affirm the trial court's judgment.
Factual Background
Jodi Lynch, a chemistry teacher at J.J. Pearce High School in Richardson, Texas, testified that the Richardson Independent School District (RISD) had assigned her a Hewlett Packard (HP) laptop computer. Lynch said that, before leaving school each day at approximately 4:30 or 5:00 p.m., she always locked the laptop computer, which was the property of the school district, in a cabinet in her classroom and then locked her classroom door. When she arrived at school each morning at approximately 7:45 a.m., one of the first things she would do is unlock the cabinet and retrieve the laptop. The HP laptop was the only computer stored in the cabinet. On the morning of October 15, 2007, Lynch reported to work and, after unlocking her classroom door and unlocking the cabinet, discovered that the laptop was missing. Lynch did not know who had taken the computer and she did not authorize anyone else to remove it from the cabinet. When she realized the computer was missing, Lynch contacted a school resource officer and filled out a stolen property report, providing the computer's serial number and "all the information that [she] had received from the district when" the computer was assigned to her. Lynch testified that the computer had both a serial number and a green and white RISD identification "sticker." This sticker, which was approximately two or three inches long and bore the letters "R.I.S.D.," contained a separate school district identification number that was used for identification purposes when reporting technical or other problems with the computer. In addition, according to the testimony of Sandra Hayes, executive director of the RISD's Instructional Technology Department, the software installed on the HP laptop computer (model 6320) by the school district included a program called CompuTrace. Hayes explained that CompuTrace was a program manufactured by Absolute Software that "tracks when a person connects to the internet." She said it was a "hidden undetectable piece of software that runs secretly and silently behind all other applications," and there was no way for someone using the computer to know it was there. Detective Brian Ray of the Richardson Police Department testified that, after he began his investigation, he "was contacted by the Absolute monitoring center" and was provided "a name and some information about a subject who was using the computer" to access the internet. The monitoring center also told Ray that this person was using the name "Ayad Barzani," and that he "talked about working at a pizza parlor up in the Plano area." Ray "did some computer searches and found a Mr. Barzani" who was living in Frisco, Texas. When Ray interviewed Barzani, he told the detective that they had only one laptop computer in their house. Ray examined this computer and concluded that "[i]t was not the laptop stolen from the school district." Barzani said "[h]e didn't have any other knowledge about any other laptop," but he told Ray that he had a son named Zagros. Ray located Zagros, who worked at a pizza restaurant in Plano, and interviewed him about the missing RISD laptop computer. Zagros told Ray that he and appellant knew each other because they had worked together at the same pizza restaurant. He also admitted using the laptop computer but offered different explanations for how it had come into his possession. Zagros stated, for example, that he used the computer because a friend brought it to the pizza restaurant where he worked. However, in a separate interview, Zagros later claimed that he was driving through an apartment complex in Richardson "when he was approached by a black male who appeared to be nervous." According to Zagros, this person "gave him the laptop computer." Zagros alleged that, after using the laptop computer "for a couple of weeks," he drove "through the same apartment complex and found a different unknown black male and gave the laptop computer to this other guy." When the prosecutor asked Ray at trial whether he believed this explanation was "credible," Ray responded, "Absolutely not." Ray added that he thought Zagros's account of receiving a computer for free from a total stranger was "just absurd." On January 25, 2008, Ray interviewed appellant at Wylie High School, where appellant was a student. At first, appellant claimed he did not even own a computer, then he said that he only owned an Apple computer. Ray described these initial responses as "[v]ery short" and "evasive." Eventually, appellant told Ray "that he did have another laptop at his house." When asked how he had acquired this computer, appellant told Ray that he got it from "[s]omebody in Richardson." But appellant refused to identify this individual or otherwise explain how he legally acquired the computer. Appellant met Ray at appellant's house after school, and appellant surrendered the missing RISD laptop computer to Ray. After recovering the computer from appellant, Ray noticed that the "stickers" on the outside of the computer that displayed its serial number and other identifying information "had been peeled off." He also observed that these "stickers" were "heavily glued" to the computer and did not "fall off" on their own. When he brought the computer back to the police station, Ray used the identifying information in the computer system's internal BIOS to find its serial number, which confirmed that it was the missing RISD laptop computer. According to Ray, apart from reading the computer's internal BIOS, there was no other way of determining its actual serial number. Richardson police returned the computer to RISD on January 29, 2008. After taking possession of the computer, Hayes used the CompuTrace tracking software to learn that someone using the name "Ayad-PC" had used the computer to access the internet on October 27, 28, and 29, 2007; that someone using the name "Owner-PC" had accessed the internet on November 12, 2007; and that someone using the name "Dan-PC" had accessed the internet on December 19, 2007. Hayes also noticed that, during the time it was missing, the computer's Windows XP operating system had been changed to Windows Vista. Hayes brought the computer to RISD technicians for "reimaging" (i.e., removal of the unauthorized operating system and software, and reinstallation of the authorized operating system and software), after which it was "reassigned back to the teacher." Appellant and Zagros were separately charged with theft of property valued at $500 or more but less than $1,500, which is a class A misdemeanor. See Tex. Penal Code Ann. § 31.03(a), (e)(3) (Vernon 2003). The jury found appellant guilty of the charged offense and the trial court assessed punishment at ninety days in jail, with the sentence suspended for a period of one year. Discussion Legal Sufficiency
Appellant's first issue claims the evidence is legally insufficient to support the conviction because there is no evidence he knew the computer was stolen or that he was using it without the effective consent of the owner. Standard of Review In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004). The jury is responsible for resolving conflicts in the testimony, weighing the evidence, and drawing reasonable inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at 778. The jury is the sole judge of the weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Brown v. State, 270 S .W.3d 564, 568 (Tex. Crim. App. 2008). Thus, when performing a legal sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for the jury's. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We "determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict." Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). We presume that the jury resolved any conflicting inferences in favor of the prosecution and defer to that resolution. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778. Applicable Law The offense of theft occurs when a person unlawfully appropriates property with the intent to deprive the owner of the property. See Tex. Penal Code Ann. § 31.03(a) (Vernon 2003). The term "appropriate" includes both acquiring and otherwise exercising control over the property. See id. § 31.01(4)(B). Appropriation is unlawful when (1) it is without the owner's effective consent or (2) the property is stolen and the defendant appropriates the property knowing it was stolen by another. Id. § 31.03(b). "Deprive" means to dispose of property in a manner that makes recovery of the property by the owner unlikely. Id. § 31.01(2)(A). An "owner" is a person who has title to property, possession of the property, whether lawful or not, or a greater right to possession of the property than the defendant. Id. § 1.07(35)(A). The intent to deprive is determined from the words and acts of the accused. Griffin v. State, 614 S.W.2d 155, 159 (Tex. Crim. App. 1991); Roberson v. State, 821 S.W.2d 446, 448 (Tex. App.-Corpus Christi 1991, pet. ref'd). Evidence showing that an accused exercised control over property without consent of the owner, intending to deprive him of it, is always enough to prove theft. Chavez v. State, 843 S.W.2d 586, 588 (Tex. Crim. App. 1992). If an accused is found in possession of recently stolen property and, at the time of his arrest, fails to make a reasonable explanation showing his honest acquisition of the property, the jury may draw an inference of guilt. Hardesty v. State, 656 S.W.2d 73, 76 (Tex. Crim. App. 1983). The inference created is a "permissible inference," not a "true presumption." Id. "The deduction of guilt drawn from a defendant's recent and unexplained possession of property is merely a circumstance of guilt and is not conclusive." Id. at 77. It is merely a factual inference that may be drawn by a rational jury and does not unconstitutionally shift the burden of proof to the defendant. See Middleton v. State, 187 S.W.3d 134, 138 (Tex. App.-Texarkana 2006, no pet.) (rejecting argument that theory of unexplained possession is unconstitutional) (citing Hielscher v. State, 511 S.W.2d 305, 307 (Tex. Crim. App. 1974)). "Once the permissible inference arises, the sufficiency of the evidence must still be examined according to applicable direct or circumstantial evidence standards of appellate review since the inference is not conclusive." Hardesty, 656 S.W.2d at 77. To draw the inference of guilt from the sole circumstance of possession of stolen property, the accused must be shown to have been in recent possession of the property after the actual theft. Sutherlin v. State, 682 S.W.2d 546, 549 (Tex. Crim. App. 1984). The possession must be personal, recent, and unexplained, and must involve a distinct and conscious assertion of right to the property. Todd v. State, 601 S.W.2d 718, 720 (Tex. Crim. App. 1980). Ordinarily, whether stolen property is recently possessed by the accused is a question of fact. Sutherlin, 682 S.W.2d at 549. Although cases vary based on factors such as ease of transferability of the property, generally, the shorter the period of time between the taking of the property and the defendant's possession of the property, the stronger the inference that the defendant knew the property was stolen. See Naranjo v. State, 217 S.W.3d 560, 571 (Tex. App.-San Antonio 2006, no pet.). The court in Naranjo found that a trailer, which requires title documentation, stolen thirteen months prior to being found in the the defendant's possession was sufficiently recent to invoke the unexplained possession rule. See id. If the accused offers an explanation of his possession of recently stolen property at the time of his arrest, the record must show that the explanation is either false or unreasonable before the evidence supporting the conviction will be deemed sufficient. Adams v. State, 552 S.W.2d 812, 815 (Tex. Crim. App. 1977). Whether the accused's explanation is false or unreasonable is a question of fact. Id.; Jackson v. State, 12 S.W.3d 836, 840 (Tex. App.-Waco 2000, pet. ref'd). The falsity of the explanation may be shown by circumstantial evidence. Adams, 552 S.W.2d at 815. Knowledge that property was stolen can also be shown by circumstantial evidence. Chudleigh v. State, 540 S.W.2d 314, 317 (Tex. Crim. App. 1976). Analysis On the day he was interviewed by Detective Ray, appellant was in possession of a laptop computer that had been stolen from a locked cabinet in a classroom at J.J. Pearce High School less than three months before. Appellant dissembled and was evasive when answering Ray's inquiries about the location of the missing computer and refused to explain who had given it to him or otherwise indicate how he legally acquired it. The "stickers" on the outside of the computer that showed its serial number and the other identifying information had been "peeled off," and the computer's operating system and software had been changed. Ray testified that the identification "stickers" were "heavily glued" to the computer and did not "fall off" on their own. We conclude there was evidence of appellant's personal, recent, and unexplained possession of the property in question. See Sutherlin, 682 S.W.2d at 549; Todd, 601 S.W.2d at 720; Naranjo, 217 S.W.3d at 571. The jury could have also concluded on this record that appellant's assertion that he acquired the property from "[s]omebody in Richardson" was either false or unreasonable. See Adams, 552 S.W.2d at 815. Thus, the jury had sufficient evidence from which it could infer appellant's possession of recently stolen property as a circumstance of guilt. See Chavez, 843 S.W.2d at 588; Hardesty, 656 S.W.2d at 73. When considered together with evidence of the condition of the RISD laptop computer at the time of its recovery, appellant's unexplained possession of the computer constituted legally sufficient evidence. Having reviewed all of the evidence under the appropriate standard of review, we therefore conclude, deferring to the jury's determination of the credibility of the evidence, that the evidence is legally sufficient to support appellant's conviction for theft. We overrule appellant's first issue. Factual Sufficiency
Appellant's second issue contends, incorporating his previous arguments concerning the legal sufficiency of the evidence, that the evidence is factually insufficient to support the conviction. Standard of Review In a factual-sufficiency review, we consider whether, after viewing the evidence in a neutral light, a rational trier of fact was justified in finding guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). We "must be cognizant of the fact that a jury has already passed on the facts and must give due deference to the determinations of the jury." Lancon v. State, 253 S.W.3d 699, 704-05 (Tex. Crim. App. 2008). "A verdict should be set aside only if the evidence supporting the verdict is so weak as to render the verdict clearly wrong or manifestly unjust." Id. at 705. Therefore, we will not reverse a judgment on a factual sufficiency challenge unless we can say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the verdict. Watson, 204 S.W.3d at 417. In determining whether the evidence is factually insufficient to support a conviction that is supported by legally sufficient evidence, it is not enough for us to "harbor a subjective level of reasonable doubt to overturn [the] conviction." Id. We cannot conclude a conviction is clearly wrong or manifestly unjust simply because we would have decided differently than the jury or because we disagree with the jury's resolution of a conflict in the evidence. Id. We may not simply substitute our judgment for the jury's. Johnson v. State, 23 S.W.3d 1, 12 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Unless we conclude it is necessary to correct manifest injustice, we must give due deference to the jury's determinations, "particularly those determinations concerning the weight and credibility of the evidence." Johnson, 23 S.W.3d at 9. Our deference in this regard safeguards the defendant's right to a trial by jury. Lancon, 253 S.W.3d at 704. Analysis The jury weighed the credibility of the witnesses and we are not at liberty to substitute our judgment for the jury's. See Johnson, 23 S.W.3d at 12; Cain, 958 S.W.2d at 407. As noted previously, the jury had sufficient evidence from which it could infer appellant's possession of recently stolen property as a circumstance of guilt. We conclude that, viewing all the evidence in a neutral light, the evidence supporting the conviction is not so weak that the jury's determination is clearly wrong and manifestly unjust, nor does the conflicting evidence so greatly outweigh the evidence supporting the conviction that the jury's determination is manifestly unjust. See Lancon, 253 S.W.3d at 704; Watson, 204 S.W.3d at 414-15, 417. Accordingly, the evidence was factually sufficient to support appellant's conviction for theft. We overrule appellant's second issue. Hearsay Statements
Appellant's third issue claims the trial court erred by admitting Zagros's hearsay statements to Ray, which appellant contends were inadmissible under the Texas Rules of Evidence. Background At trial, defense counsel objected that Zagros's statements to Ray constituted inadmissible hearsay. The prosecutor argued the statements were admissible under rule of evidence 801(e)(2)(E), which provides that a statement offered against a party that was made by a co-conspirator of the party during the course and in furtherance of the conspiracy is not hearsay. Tex. R. Evid. 801(e)(2)(E). The trial court initially determined the State had not established the proper predicate to show that appellant and Zagros were co-conspirators under rule 801(e)(2)(E), but the court later overruled appellant's hearsay objections after the prosecutor made an offer of proof out of the jury's presence. Ray then testified before the jury, as noted above, that Zagros told him he no longer had the computer, that he had obtained it from a total stranger, and that he gave the computer away to yet another stranger. Ray also testified that Zagros had admitted using the computer when a friend brought it to the pizza restaurant where he worked. Appellant argues that rule 801(e)(2)(E) does not apply here because the State never proved that a conspiracy existed between Zagros and appellant. The State responds that (1) the statements in question were not hearsay because they were not offered to prove the truth of the matters asserted; (2) the objected-to statements were admissible under rule of evidence 803(24) as statements against interest; and (3) their admission did not affect appellant's substantial rights under rule 44.2(b) of the Texas Rules of Appellate Procedure. We focus our attention on the State's third argument. Standard of Review Assuming, without deciding, that the trial court erred in admitting the statements, the erroneous admission of hearsay evidence is non-constitutional error. See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). Rule 44.2(b) provides that we must disregard a non-constitutional error that does not affect a criminal defendant's "substantial rights." Tex. R. App. P. 44.2(b); Bourque v. State, 156 S.W.3d 675, 677 (Tex. App.-Dallas 2005, pet. ref'd). Under rule 44.2(b), we may not reverse for non-constitutional error if, after examining the record as a whole, we have fair assurance that the error, if any, did not have a substantial and injurious effect or influence on the court's decision. Bourque, 156 S.W.3d at 677. Analysis After examining the entire record, we have fair assurance that the error, if any, was harmless. We base this conclusion on the legally and factually sufficient evidence described above from which the jury could have determined appellant's guilt notwithstanding whether it believed appellant was associated with Zagros. Consequently, even if the trial court erred in admitting evidence of Zagros's conversations with Detective Ray, the disputed testimony did not have a "substantial and injurious effect" or influence in determining the jury's verdict. We overrule appellant's third issue. We affirm the trial court's judgment.