No. 04-02-00756-CR.
Delivered and Filed: March 12, 2004. DO NOT PUBLISH.
Appeal from the County Court at Law No. 5, Harris County, Texas, Trial Court No. 1109409, The Honorable E. Janice Law, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Sandee Bryan MARION, Justice.
Opinion by: PHYLIS J. SPEEDLIN, Justice.
We withdraw our opinion and judgment dated December 10, 2003, and issue the following opinion and judgment in their stead. Terrance Reynard Bell ("Bell") was charged with the misdemeanor offense of making a false report to a police officer. A jury found Bell guilty, and the trial court assessed punishment at two years probation with a $250 fine. In his sole point of error, Bell contends that the evidence is factually insufficient to support his conviction. We affirm the judgment of the trial court.
Background
On September 13, 2001, Deputy DeLeon Huff ("Huff") with the Harris County Sheriff's Department responded to a dispatch call in which Bell reported his home had been burglarized. Huff asked Bell some initial questions concerning personal information, possible suspects, and missing items until a burglary unit arrived. Deputies John Nanny ("Nanny") and Alford Cook ("Cook"), both with the Harris County Sheriff's Burglary Unit, then took over the investigation. Bell informed the deputies that various items had been stolen, including his piano. The deputies questioned Bell in detail about the piano. Ultimately, Bell was charged with making a false report to Deputy Nanny that "he owned a piano, that was allegedly stolen." Bell pled not guilty. A jury, however, found him guilty and the trial court sentenced him to 180 days in the Harris County Jail, probated for two years. This appeal resulted. At the trial of the matter, Deputy Cook testified that Bell reported he was away from his house overnight and returned to find his garage door open and a television, DVD player, and upright piano missing. Bell told the deputies that he thought his girlfriend might be the perpetrator. During their investigation, the deputies noted a shattered window that could have been the point of entry. The window, however, appeared to have been broken from inside the house because dust on the windowsill was undisturbed. Both Deputy Cook and Nanny testified they found the burglary report suspicious. They asked Bell if the piano was rented and whether he was making payments. Bell responded that he had paid for it in full, in cash, and owned it outright. When asked if he had any remaining payments on the piano, he replied "no" because he had paid the $5000 purchase price in cash to H H Music Store ("H H"). Cook and Nanny testified that they never saw any receipts or paperwork relating to the piano and that Bell provided only a visual description and the brand name of the piano, but not the serial number. At the conclusion of the interview, Bell refused to sign an affidavit stating that the piano had been stolen. John Sugg, an investigator with State Farm Insurance ("State Farm") testified that Bell filed a claim for theft of the missing items and damage to his house. Bell submitted a "Sworn Proof of Loss" form in which he indicated that his interest in the damaged property was as "owner," choosing between several choices including "owner" and "lessee." Bell also submitted a document titled "Home Keyboard Rental Agreement" from HH Music as his proof of ownership of the piano. Based upon Bell's documentation, State Farm issued a check payable to both Bell and HH Music. H H Music employee, Steve Merrill ("Merrill") testified that he was contacted by Bell and told that the piano had been stolen but subsequently recovered. At that time, Merrill testified Bell had paid only the delivery, tuning charges and the first month's rent on the piano. Despite being in default for nearly a year, Bell told Merrill that if Merrill would sign the check from State Farm, Bell would pay the back rent and resume payments for the piano. Merrill then called the State Farm agent handling the claim and informed him that Bell was in the store and had attempted to procure his signature on the check. Upon arrival, the State Farm agent questioned Bell as to the whereabouts of the stolen piano; however, Bell denied ever telling Merrill that he had recovered it. Patricia Holmstrul, the H H salesperson who assisted Bell in the piano rental, testified that the sales staff often did not point out the distinction between the straight "rent-to-own" agreements and the "rent with the option to purchase" agreements, and that customers had become confused in the past. Analysis
Bell asserts that the evidence is factually insufficient to support the jury's verdict regarding the element of intent to deceive. In conducting a factual sufficiency review, we consider all the evidence equally, setting aside a verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). In making our determination, we are to give due deference to the fact finder's determinations. Id. at 136. Furthermore, the mere existence of a reasonable alternative hypothesis does not render the evidence factually insufficient. Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim. App. 2001). A person makes a false report to a police officer if, with intent to deceive, he knowingly makes a false statement to an officer that is material to a criminal investigation. See Tex. Penal Code Ann. § 37.08(a) (Vernon 2002). Bell specifically argues the evidence shows an honest mistake, or a poor choice of words, rather than the required intent to deceive, citing in support: 1) the state's circumstantial evidence of insurance fraud, 2) the confusion as to the "rental with option to purchase" agreement he had with MM Music, and 3) the conflicting testimony of the investigating deputies. Bell first argues that the mere assertion that he was the "owner" of the piano in the sworn proof of loss statement submitted to State Farm is not compelling evidence of deceit. The form inquired as to his interest in the "damaged property" and Bell could have been referring to his house, which was damaged in the burglary and was part of his insurance claim. He also asserts that when he submitted his claim, it was accompanied by his rental agreement with H H Music. Had he intended to defraud the insurance company, he could have claimed to have lost his receipt for the piano. Additionally, Bell contends that when he received the insurance check which also required HH Music's endorsement, he had the opportunity to forge Merrill's signature, but instead chose to contact him to explain the situation. Finally, he notes that although there was some dispute as to whether Bell had recovered the piano, State Farm ultimately paid the claim after a full investigation. In further support of his argument that the evidence shows an honest mistake or a poor choice of words rather than the required element of intent, Bell relies on the testimony of HH Music's salesperson, Patricia Holmstrul. She testified that Bell initially intended to purchase a piano but was refused financing; that the sales staff used "rental with option to purchase" agreements to market the pianos; the "rent-to-own agreement" was sometimes confusing to customers; and she had not clarified the distinction to Bell. Finally, Bell argues that the testimony of both Deputies Cook and Nanny that he told them he owned the piano outright and he was not making payments is contradicted by the testimony of the first deputy on the scene, Deputy Huff. Huff testified that Bell showed the deputies a form pertaining to ownership or rental. Huff's report also contains a serial number for the piano that Bell argues could only have come from the rental agreement. That rental agreement also reflects a monthly payment and a down payment of only $194.86. Bell maintains this testimony is wholly irreconcilable with Cook's and Nanny's testimony that they never saw any receipts or other paperwork relating to the piano, and that Bell provided only a visual description and the brand name of the piano, but no serial number. Likewise, it contradicts Cook's and Nanny's testimony that Bell told them he paid $5,000 cash for the piano. In determining intent, a jury may base its conclusion on the defendant's conduct and surrounding circumstances. LaPoint v. State, 750 S.W.2d 180, 182 (Tex.Crim.App. 1986); Rodriguez v. State, 793 S.W.2d 744, 748 (Tex.App.-San Antonio 1990, no pet.). Bell cites discrepancies in the testimony of witnesses and suggests an alternative hypothesis — that he thought he was the owner of the piano and all of this was just an "honest miscommunication." The jury, however is the sole judge of the facts, the witnesses' credibility, and the weight to be given the evidence. See Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim. App. 1998). Therefore, the jury may choose to believe or disbelieve any portion or all of a witness's testimony. See Beckham v. State, 29 S.W.3d 148, 151 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd). Consequently, the jury was free to believe the testimony of Deputies Cook and Nanny that Bell affirmatively told them that he owned the piano and had paid $5,000 cash for the piano, despite some differences with the testimony of the first deputy on the scene. See Id. Likewise, even if the jury believed that Bell misunderstood the agreement he had with HH Music, the State can put forth by inference the actual state of facts, coupled with Bell's opportunity to perceive them, to establish the requisite intent. See McGee v. State, 671 S.W.2d 892, 895 (Tex.Crim.App. 1984). Regardless of the type of agreement Bell signed, Holmstrul also testified that Bell knew that he owed money on the piano. Bell also knew that the piano was worth more than $5,000 and the only money he had ever paid toward the piano was $194.86. Therefore, any statement to the deputies that he had paid $5,000 in cash for the piano could not be true. Because the jury is the sole judge of the weight and credibility of the witnesses' testimony and the evidence supports the verdict, we decline to substitute our judgment for that of the jury. King v. State, 29 S.W.3d 556, 563 (Tex.Crim.App. 2000). The proof of Bell's intent to deceive is not so obviously weak as to undermine confidence in the jury's determination or so greatly outweighed by the contrary evidence as to indicate that the verdict is manifestly unjust. Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Crim.App. 2003). Accordingly, we hold that the evidence was factually sufficient to support the verdict.