Opinion
No. 14-07-00945-CR
Opinion filed May 28, 2009. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 183rd District Court, Harris County, Texas, Trial Court Cause No. 1062640.
Panel consists of Justices FROST, BROWN, and BOYCE.
MEMORANDUM OPINION
A jury found appellant Bahram Mahboub Jahanian guilty of engaging in organized criminal activity with family members and others to commit and conspire to commit the offense of theft of property over $200,000. At the punishment hearing, Bahram pleaded "true" to two enhancement paragraphs and the trial court sentenced him to confinement in the Texas Department of Criminal Justice, Institutional Division, for life. On appeal, Bahram contends that the evidence is legally and factually insufficient to prove that the total value of the property stolen was over $200,000; the trial court erred in failing to provide the jury with an instruction defining "value" and the error caused egregious harm; and, applying the doctrine of in pari materia, he was wrongly prosecuted under Texas Penal Code section 71.02 when he should have been prosecuted under Penal Code section 32.47. We affirm.
Factual and Procedural Background
Bahram Jahanian, referred to during the trial as "B.J.," does not dispute the evidence that he participated in organized criminal activity. The evidence showed that from January 2004 through February 2006, B.J. and other members of the Jahanian family, including Cindy Jahanian, B.J.'s wife, and their son and daughter, Nicholas Jahanian and Krystal Jahanian, participated in a theft scheme to unlawfully obtain merchandise from stores throughout Texas and to sell the merchandise for profit though Nicholas Jahanian's eBay account named "Bwatchers." Others also participated in the scheme, including two accomplices who testified during the trial, Valerie Baker and Elizabeth Espirit. The stores targeted in the scheme included Target, Wal-Mart, Home Depot, and Lowe's. Representatives of these stores were named in the indictment against B.J. B.J. was confined in a Texas prison during the time the theft scheme operated. Despite his confinement, from prison he instructed the others as to how to carry out the scheme during prison visits with Nicholas or by mail sent to Cindy at her residence, which she shared with Krystal Jahanian, located at 19615 Spanish Needle in Harris County. B.J.'s advice included telling them to stay away from Target stores, to go out of town more, and to use more than two drivers. He also did not want Nicholas involved in going to the stores. The scheme operated as follows. Cindy, Krystal, and an accomplice, usually Elizabeth Espirit but sometimes others, would drive to one of the stores somewhere in Texas, and Cindy and Krystal would enter the store with labels showing UPC codes for low-priced merchandise that they or someone else in the theft ring had purchased or stolen for the purpose of getting the bar codes. Once inside the store, Cindy and Krystal located usually at least two high-end items such as MP3 players, faucets, cameras, phones, DVD recorders, or printers. While one acted as lookout, the other placed the bar-code labels for the lower-priced merchandise over the bar code shown on the items so that the desired merchandise could be purchased for a substantially lower price. The UPC codes the family used would ring up at the register as either a Lexmark ink cartridge for $27.99 or a Brita water filter for $6.99, although the prices might vary slightly at different stores. Once the bar codes were switched, Cindy or Krystal placed a cell-phone call to the accomplice, who separately entered the store. Cindy or Krystal gave the accomplice a description of the desired merchandise and its location. Cindy and Krystal then left the store, and the accomplice, who was also permitted to purchase a low-priced item for personal use at the ring's expense, would locate the merchandise and attempt to check out with it. When possible, the accomplice would take the merchandise to a check-out counter occupied by a young, seemingly inexperienced clerk. When the merchandise rang up at the lower price shown by the switched bar code, the accomplice paid for it and the personal item, left the store, and returned to the car. The three would then either go to another store or quit for the day. Cindy and Krystal would then store the stolen merchandise either at their home or a storage unit they maintained. To dispose of the merchandise, Nicholas Jahanian sold the items on eBay using his eBay account, known as "Bwatchers," and sent the merchandise to whomever had purchased it. Nicholas then distributed the profits among himself and the other members of the ring, including Cindy and Krystal. Doug Osterberg, an investigator in the Harris County District Attorney's Office Special Crimes Division, testified extensively about his involvement in the investigation of the theft ring and its operation. He testified that Nicholas was selling a large number of items including faucets, cameras, cordless phones, print cartridges, MP3 players, gift cards, cameras, printer docks, and DVD recorders and players through his Bwatchers account. Based on State's Exhibit 2A, a list obtained from eBay of the items sold through Nicholas's eBay account, Osterberg testified that there were over 2,000 items sold from the early part of 2004 until the end of October 2005, and that Nicholas made $258,970 for the sale of the items listed in State's Exhibit 2A. He also testified that, during a short period when eBay suspended his account, Nicholas continued to sell the same types of items through another source for a total value of about $13,000. Osterberg also testified that Nicholas continued to sell items on eBay past October 2005. Osterberg conceded that the State was not alleging the theft of several items on the exhibit, such as three cars, a Yao Ming bobblehead doll, and some event tickets, but he testified that, even subtracting those types of items, the value of the stolen items listed was still well in excess of $200,000. After obtaining the eBay records, Osterberg testified that he began surveillance on the Jahanian family. To assist him in the surveillance, he contacted loss-prevention personnel at Target, Wal-Mart, Lowe's, and Home Depot, the four stores whose representatives were named in the indictment against B.J. The surveillance included two teams and took place over two days in January 2006. Osterberg's team followed Nicholas Jahanian from his residence, and the other team was dispatched to Cindy and Krystal Jahanian's residence on Spanish Needle to observe their actions. Osterberg testified that on the first day he observed Nicholas Jahanian and his then-girlfriend, Valerie Baker, at a post office mailing ten cordless phones that appeared to be the same type of phones pictured on Nicholas's website. After meeting with the other team after the first day, Osterberg confirmed that Cindy, Krystal, and another person were carrying out the theft scheme in Harris County, Brazos County, and Washington County. He also testified that Dee Williams, an investigator with Target, compiled and turned over to him a number of videos and receipts of transactions involving Cindy and Krystal at Target stores in Galveston, San Antonio, Austin, and various stores throughout Harris County. The State then published to the jury surveillance video of Cindy and Krystal Jahanian and Elizabeth Espirit engaging in the UPC-code-switching scheme at a Target on Jones Road in Harris County on January 26, 2006, as Osterberg identified the participants and explained their activities. Osterberg testified that he decided to contact prison authorities where B.J. resided to request that they send him copies of B.J.'s incoming and outgoing mail. He obtained copies of several hundred letters to and from B.J. and his family members. Some of the letters were routed through another inmate to avoid interception. Other letters were found later during a police search of the Jahanian house on Spanish Needle. One letter from B.J. to Cindy discussed the potential of eBay; B.J. also sent a letter to Nicholas reflecting that he was enclosing an article on the advantages of being an "eBay entrepreneur." Another letter from B.J. included an article about a man who stole Legos worth thousands of dollars from Target stores by switching bar codes on them and selling them on eBay. Osterberg testified that, based on his investigation, the letters, although they may purport to discuss an eBay-related career, actually reflected conversations about stealing, and he explained various shorthand references used to indicate B.J.'s direction of the scheme's operation. The State subsequently filed charges against B.J., Cindy, Krystal, and Nicholas Jahanian, the accomplice Elizabeth Espirit, and Valerie Baker, Nicholas's former girlfriend. Police also executed arrest warrants and search warrants of various locations. In the guilt-innocence phase of the trial, B.J., who represented himself, cross-examined investigator Osterberg. Osterberg admitted that the surveillance team observed Jahanian family members committing thefts only during the surveillance of January 26, 2006, in Harris County, Washington County, and Brazos County. Osterberg explained that at the Jones Road Target, the ring obtained six Lexmark printer cartridges that rang up as Brita water filters. Osterberg would not agree with B.J. that the store's loss was the value of the six $27.99 cartridges minus the $6.99 apiece paid for them; Osterberg instead maintained that Target lost about $168 even though, as B.J. posited, Target received about $42 for the cartridges. B.J. then questioned Osterberg about the ring's attempted theft of two cordless phones from a Wal-Mart in Brenham that same day. Osterberg admitted that, because a cashier discovered and peeled off the fake UPC codes, Elizabeth Espirit left the store without purchasing anything. Next, Osterberg testified that the ring switched bar codes to obtain six water filters worth about $27-$28 apiece at a Lowe's in Brenham; two Delta faucets priced at about $220 apiece at a Home Depot in Brenham; and two more Delta faucets worth about the same amount at a Lowe's in Bryan. Osterberg would not agree that these were the only thefts his investigation revealed; he testified that he linked B.J. and his family to over $200,000 in theft from Wal-Mart, Target, Lowe's, and Home Depot based on State's Exhibit 2A, talking to witnesses in the case, from surveillance, and documents. Osterberg admitted, however, that he had no "firsthand knowledge" that the items were stolen. He also conceded that he never tried to recover one of the listed items from the purchasers to determine through a lot number whether the item came from one of the stores. In response to additional questioning, Osterberg testified that for purposes of the investigation, individuals from the district attorney's office, Home Depot, and Target bought items from Nicholas Jahanian's website that were the same type as those the theft ring was observed stealing. On redirect examination, Osterberg testified that he spoke to the representatives of Target, Wal-Mart, Home Depot, and Lowe's about trying to trace an item purchased on eBay back to one of their stores, but he was informed that it was not possible because those stores did not have the technology to track their inventory that way. Osterberg also testified that Brady Bailey, a representative of Target, told him that after the Jahanians were arrested, their statistics on thefts of the types of items they stole in the region showed a noticeable decrease. The State's next witness was Valerie Baker, Nicholas Jahanian's former girlfriend. She testified that she met Nicholas while she was in optometry school in 2004. They became romantically involved, and he eventually moved in with her and her roommate. At that time, Nicholas told her he had just started an eBay business. Although Nicholas told her he was selling items for others and also buying items from wholesalers to sell on eBay, she usually saw about ten items individually packaged in Wal-Mart or Target bags; she saw no evidence that Nicholas was getting the items he sold from wholesalers. She testified that Nicholas would pick up the items from Cindy and Krystal at their house or a storage unit, and then he would "ship them out on eBay." The types of items she remembered seeing were electric shavers, cameras, paint ball guns, and faucets. Nicholas would give Cindy and Krystal money to go out and purchase more items. Valerie further testified that Nicholas would pick up about ten items three to four days a week and mail them to the people who purchased them from him on eBay. He went to the post office to mail usually five to six items about five days a week. One time, when she accompanied him to the post office, she saw him remove a sticker from an electric razor, and she thought it was suspicious. She also thought it was suspicious that Nicholas did not receive items in bulk as she would expect from a wholesaler, but rather Cindy and Krystal would bring Nicholas individual items in Target or Wal-Mart bags, and Nicholas would give Cindy and Krystal each one-third of the money he made. At first, Valerie testified, Nicholas told her that his father had a wholesale business in Germany, but he later confessed that B.J. was incarcerated "for taking items from Wal-Mart." Eventually, Nicholas also told her about his family's bar-code-switching scheme. Nicholas told her that they mainly stole from Wal-Mart and Target, but she thought she also remembered faucets coming from Home Depot. She confirmed that Cindy and Krystal delivered the stolen items to Nicholas, who put them up for sale on eBay and then shipped them to the purchasers. She testified that he rationalized his behavior by saying that he was not stealing, he was "just an eBayer," and in any event, large stores like Target and Wal-Mart already "write off" many items as stolen or damaged, so the companies were not losing money. Nicholas also told her he learned about the scheme from his father, B.J. Because of her feelings for Nicholas, Valerie testified that she did not immediately leave him, and she helped him by packaging the stolen items at the post office. Consequently, Valerie admitted at trial that she was a party to the same thefts the Jahanians were charged with committing. She further testified that, although Nicholas had no other job, he was able to support himself, her, Cindy and Krystal, and he paid Elizabeth Espirit for her participation in the scheme. Nicholas also would deposit money from the theft enterprise into B.J.'s commissary fund so that B.J. could buy things in prison. Valerie further testified that she would go with Nicholas to visit B.J. in prison, where they would discuss stealing in front of her. Nicholas would report to B.J. and B.J. would advise Nicholas on ways to steal more effectively. Valerie also testified that Nicholas was suspended from eBay for about thirty days for engaging in "shield bidding," or using another account to bid on his own merchandise to increase the prices, and he continued to sell items by taking them to an eBay store that would list the items for him. During that time, they took many items worth thousands of dollars to the eBay store to sell. On cross-examination by B.J., Valerie insisted that she believed that B.J. administered an organized crime ring from his jail cell. The State next called Larry Boucher, a lieutenant investigator for the Harris County District Attorney's Office in the Major Fraud Division and investigator Osterberg's supervisor. He testified concerning his participation in the surveillance on January 26, 2006, of the theft ring's operation. As the jury viewed a surveillance tape from a Harris County Target, Boucher narrated what he saw from the store's video room, which was equipped with cameras both inside and outside the Target. He described Cindy and Krystal Jahanian coming into the store, with Elizabeth Espirit following behind them. They then separated inside the store. Along with some other items, Cindy and Krystal picked up two Kodak camera and printer bundles, priced at $249.99 each. But, as they went through the store, they appeared to begin to suspect that they were being observed, and so they abandoned their cart and left the store. Cindy, Krystal, and Elizabeth Espirit all left in the same car and went to the Jones Road Target, which Osterberg had described to the jury previously. Boucher next described following the women to a Brenham Wal-Mart, where they followed the theft ring's usual pattern. Boucher narrated the video surveillance for the jury. At the Wal-Mart, Cindy and Krystal picked up two boxes of Panasonic digital cordless phones, walked down the store's aisles, and then left the cart as they made a cell-phone call. Elizabeth Espirit then came up and pushed the cart toward a self-checkout register. Elizabeth scanned some children's socks and then the phones. A supervisor noticed that she was having trouble scanning the phones and came over to the register. When the supervisor tried to scan the phones again, she noticed they were scanning for considerably less than they should, and peeled off the UPC code stuck on the box. When the phones rang up at the correct price, Elizabeth made an excuse not to buy the items and left the store. The State then introduced evidence from this encounter, including photographs of the phones, the fake UPC codes taken from the phones, and the receipts that rang up. Boucher testified that Nicholas Jahanian had the same model phone for sale on his eBay account, and that UPC-code stickers of the same type were found during the search of Cindy and Krystal's home on Spanish Needle. Boucher further testified that the actual price for the phones was $313.86, but they rang up as two cartridges for $27.97 apiece. Thus, Boucher testified, the ring was going to walk out with about $250 in merchandise. Next, Boucher testified that the women then went to a nearby Lowe's where they followed the same pattern. As the jury observed video surveillance of this location, Boucher explained that Cindy and Krystal went to an aisle containing Brita water filters; they then left that aisle and Elizabeth came and picked up four of the water filters and went to the counter. Boucher testified that the water filters were $32 each, but they did not scan for that amount. All of the women left the store. Other personnel observing the transaction then attempted to recreate it, and they determined that the four water filters rang up as $6.96 apiece, rather than $32 apiece. From there, Boucher testified, the women went to a Home Depot nearby, where, following the same pattern, Elizabeth paid cash for two faucets, priced at $208, that rang up for $26.87 each. Thus, the ring made a little over $300. Again, the jury was shown surveillance video and physical evidence of the scheme. Lastly, the women went to a Lowe's in Bryan where they were followed by the surveillance team. Boucher testified that Cindy and Krystal went down the aisle where the faucets were located and stayed there for a few minutes as they handled some of the faucets. They then left and Elizabeth came down the same aisle, picked up two faucets, and purchased them for $6.87 each, when the actual price would have totaled about $308. Boucher then described the search of the Jahanians' Spanish Needle home following their arrests. At the house, the investigators found, among other things, a printer, fraudulent UPC codes reflecting the same numbers as those used on the products seen in the surveillance videos, and paper for printing the UPC codes. A Braun shaver that was the same type Nicholas sold on his eBay website was also found in Krystal's bedroom. Exhibits consisting of physical evidence and photographs of the home were admitted into evidence. Boucher testified that, in Krystal Jahanian's car — the car used in the scheme on January 26, 2006 — they found her purse, which contained a UPC code with the same numbers on it as those peeled off by the clerk at the Wal-Mart in Brenham and the ones found in the house. In the passenger-side front door panel they found clippings from the paper on which the UPC codes were printed, and a number of receipts from various Targets, Lowe's, and Wal-Marts, located in Austin, San Antonio, Tomball, Spring, and Cedar Park. The receipts reflected purchases of water filters for $6.96 apiece. The car's trunk contained bags from Target. Cindy's car also contained Target bags. Boucher further testified that Cindy gave consent to search a self-storage facility where the investigators found many preprinted shipping boxes with the eBay logo and mailing labels showing Nicholas Jahanian's address. Investigators also found bags from Wal-Mart, Academy, Target, and Lowe's piled up in the storage room, and amongst them were fraudulent UPC codes showing the same numbers as the UPC codes the theft ring had used. On cross-examination, Boucher did not disagree that six Lexmark cartridges worth about $168 were stolen from the Jones Road Target, and nothing was taken from the Wal-Mart where the fake UPC codes on two cordless phones were discovered and removed. Boucher also agreed that the Brenham Lowe's lost about $150 after subtracting what Elizabeth paid for the six water filters she obtained, the Brenham Home Depot lost $416 on the two Delta faucets, and the Bryan Lowe's lost about $250 after subtracting what Elizabeth paid for them. When asked whether these were the only thefts he had seen in the course of his investigation, Boucher maintained that all of the items on the eBay list were "taken in the same manner." But Boucher admitted that he did not personally see any other thefts. Patrick Smith, another investigator with the Major Fraud Division of the Harris County District Attorney's Office, testified that he assisted in the investigation of the Jahanians by using his established eBay account to purchase items from Nicholas Jahanian's eBay account. He explained that an established account would be less likely to arouse suspicion than a new account. Smith testified that he bought a Delta kitchen faucet from Nicholas for $157.50 through the Bwatchers account. The faucet was shipped to him from the Spanish Needle address. Smith also testified that he often checked the Bwatchers account, and he noticed a pattern in which the account would offer two or three faucets, phones, or other items at one time, and when the auctions of those items ended, they were immediately replaced by similar items. On cross-examination, Smith admitted he could not say with certainty the faucet he bought was stolen. The State's next witness was Thomas Brady Bailey, an organized crime investigator for Target Corporation, and one of the named complainants. Bailey testified that, as a representative of Target, he had a greater right to items stolen from Target than the person who stole them. He testified that he bought a Panasonic phone on eBay from Bwatchers that was the same brand and model that Target sold at that time, and several of the same model were for sale on the Bwatchers website. Bailey also testified that he was present at the search of the Spanish Needle house and the storage facility. He confirmed that the numbers on the UPC codes found in those locations matched the UPC codes on products Target carried at that time. He also confirmed that Target sold all of the items listed on the indictment against B.J. Bailey also identified numerous items listed on State's Exhibit 2A as items that Target sold. According to Bailey, it was not possible to trace a particular product back to a particular Target store. Bailey testified that, based on his investigation, he believed that some of the items on State's Exhibit 2A were stolen from Target based on the "overwhelming" evidence from the videos, the surveillance, the testimony of the co-defendants, and his common sense. He also testified that after the Jahanians were arrested the losses in those types of products dropped "very, very substantially." On cross-examination, Bailey testified that he determined that Target had lost $133,000 from the thefts. Although he could not say specifically whether an item on State's Exhibit 2A came from a particular Target store, he could say that "those are like items that we sold at Target." Bailey also confirmed that Target did not carry some of the items on the list, such as faucets or paint ball equipment. The State then called Elizabeth Espirit. She testified that she met the Jahanians through her then-fiancé, who was in the Harris County Jail at the same time as B.J. Elizabeth's fiancé got Krystal Jahanian's phone number from B.J. and told Elizabeth that Krystal would be calling to meet with her about a part-time job. She eventually met with Krystal and Cindy, and they "went for a ride" ending up in Alvin. The Jahanians did not tell Elizabeth they would be stealing. The women arrived at a store, either a Wal-Mart or a Target, and Cindy and Krystal told her to wait in the car while they went inside. A little while later, they came out and told her to purchase a specific item and where it would be located. Elizabeth testified that at first she did not realize what she was doing, but soon figured it out. Over the months that followed, the theft ring's favorite stores were Wal-Mart and Target, but they also went to Home Depot, Lowe's, Academy and Sears. Elizabeth testified that one of the women told her to pick young cashiers because they did not "care as much" as an older cashier would. She further testified that she always paid for the items with cash Cindy or Krystal gave her. She explained that the ring stole from stores in many locations in Texas. Elizabeth also testified that the theft ring would not only use the UPC codes from Lexmark ink cartridges or Brita water filters to obtain the higher-priced merchandise, they also used the receipts for the higher-priced merchandise, which rang up as ink cartridges or water filters, to return the ink cartridges and water filters they had originally purchased for cash. As an example, she explained that the ring would steal a $30 Lexmark ink cartridge by putting a $6 UPC code from a Brita water filter on it and buying it for $6. The Jahanians would take the Lexmark ink cartridge and make copies of its UPC code. Then, for example, the ring would steal two Panasonic phones from Wal-Mart or Target using the Lexmark UPC codes. The phones would ring up as Lexmark ink cartridges, generating a receipt reflecting the purchase of two Lexmark ink cartridges at their actual price. The ring would then return the ink cartridges, for which they paid $6 apiece, using the receipt showing the purchase of Lexmark ink cartridges for between $26-$30 apiece, for cash. Sometimes, Elizabeth testified, if they could not get cash, they would get a gift card for returned items. Elizabeth further testified that she stole many of the types of items on the indictment, although she could not recall stealing some of them. She estimated that over the thirteen-month period that she was with Cindy and Krystal they had stolen over $200,000 worth of items from about 400 stores. Stoney Burke, an eBay fraud investigator, testified concerning how items are bought and sold on eBay generally. He also testified that the Bwatchers account belonged to Nicholas Jahanian and listed the Spanish Needle address. Through the Bwatchers account, Burke testified that over 2,100 items were listed for sale, and as of the time the account information was subpoenaed in October 2005, the price of the items sold totaled $258,907.36. Burke further testified that the Bwatchers account continued to sell items after that information was compiled, and the account remained active until February 28, 2006, when eBay shut it down. Tim Scott, who worked in loss prevention for Lowe's and was one of the named complainants, testified that he participated in the surveillance of the Jahanians. He also testified that as a representative of Lowe's he had a greater right possess any stolen items than the person who stole them. He then identified the items on State's Exhibit 2A that Lowe's sold at the relevant time. Scott testified that, at that time, it was not possible to track a specific item like a faucet purchased from eBay to a particular store. On cross-examination, Scott testified he had personally seen the Jahanians participate in six specific thefts, but he did not know the total value of the items stolen in the six thefts. He also testified that the same brands of items stolen from his store were on Nicholas's eBay list, but he admitted that he had no personal knowledge that anything Nicholas sold on eBay was stolen from his store. Mary Jo Meador, a financial-crimes investigator for Wal-Mart Stores, Incorporated, and another named complainant, testified next. She testified that, as a representative of Wal-Mart, she had a greater right to possess items that were stolen from Wal-Mart than the persons who stole them. She identified the types of items Wal-Mart sold during the relevant time that were listed on State's Exhibit 2A. Meador also testified that Wal-Mart did not have the technology to trace an item bought on eBay back to an individual store. On cross-examination, Meador did not know how much of the over $200,000 allegedly stolen was attributable to Wal-Mart. She also admitted she had no personal knowledge of the thefts committed by the individuals named in the indictment, and could not tell if specific items on the list came from Wal-Mart. The State next called Dee Williams, a loss-prevention manager for Target. Williams was also involved in the surveillance and investigation of the Jahanians. After that, she testified, she conducted further research and found evidence of additional thefts, including videos of the theft ring operating in various Target stores. Williams narrated for the jury a video of the theft ring unsuccessfully attempting to obtain two Kodak camera and printer bundle packs priced at $249.99 from a Pasadena Target. The ring had attempted to purchase the items using UPC codes from Lexmark printer cartridges, which Target also sold, but the fake codes were discovered and no items were purchased. Williams also testified concerning the ring's return scheme through which the theft ring could steal, for example, a $200 shaver for $6. Williams's testimony of how the scheme worked was similar to Elizabeth Espirit's testimony, but was more detailed. Williams also found video and other evidence of the theft ring carrying out the return scheme at the Pasadena Target store, which the State showed to the jury as Williams explained the theft ring's actions. On cross-examination, Williams testified that she identified seven or eight thefts in January of 2006 resulting in a loss of about $2,500. She admitted that she could not say with certainty that any of the items Nicholas sold on eBay came from her stores, but she also testified that she knew that the items the Jahanian family were stealing "over and over again" from Target stores were the same types of items they were selling on eBay. Marshal Poe, a loss-prevention manager for Home Depot, testified as another of the named complainants. He testified that, as a representative of Home Depot, he had a greater right to possess stolen property than the person that stole it. Poe identified the categories of items on State's Exhibit 2A that Home Depot sold. Poe testified that, as part of the investigation of the Jahanians, his team was asked to purchase faucets from the Bwatchers eBay account, and the items purchased were consistent with items carried by Home Depot at that time. Poe also testified that Home Depot did not have the ability to track an item purchased on eBay to a particular store. On cross-examination, Poe conceded that he could not say with certainty that any of the items on State's Exhibit 2A came from his stores. The State's last witness was Darrell Smith, who testified that he had known B.J. and his family since May 2000. He opined that B.J. "positively" was in charge of the family. On cross-examination, Smith further opined that he considered B.J. "a sociopath" and "domineering." The State then rested. B.J. called one witness for the defense, attorney Richard Kuniansky, who testified concerning his prior representation of Krystal Jahanian. He testified that the State had offered Krystal a plea bargain of five years. Krystal did not accept the plea bargain, however, and after a jury trial with different counsel, she was sentenced to twenty-five years in prison. The defense then rested.Analysis
On appeal, B.J. raises four issues. In his first and second issues, B.J. contends that the evidence is legally and factually insufficient to prove that the total value of the property appropriated was over $200,000. In his third issue B.J. contends that the trial court's failure to provide a definition of "value" under Texas Penal Code section 31.08 resulted in egregious harm to him. In his fourth issue, B.J. contends that, under the doctrine of in pari materia, he was wrongly prosecuted under Texas Penal Code section 71.02 when Penal Code section 32.47 was the more specific statute. We will address each in turn.I. Legal and Factual Sufficiency of the Evidence
In his first and second issues, B.J. contends that the evidence is both legally and factually insufficient to prove that the total value of the property appropriated by the Jahanian family, which theft provided the basis of the organized-crime allegation against him, was over $200,000. Because B.J. discusses the issues together, we will do likewise. A. Standards of Review In reviewing the legal sufficiency of the evidence, we look at the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002). Although we consider all evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). The jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony, and it is the exclusive province of the jury to reconcile conflicts in the evidence. Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim.App. 1998). In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light. See Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App. 1997); Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App. 1996). We may set the verdict aside if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust; or (2) the verdict is against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000)). While we may disagree with the jury's conclusions, we must exercise appropriate deference to avoid substituting our judgment for that of the jury, particularly in matters of credibility. Drichas v. State, 175 S.W.3d 795, 799 (Tex.Crim.App. 2005); see also Watson, 204 S.W.3d at 414 (stating that an appellate court should not reverse a verdict it disagrees with unless it represents a manifest injustice, though supported by legally sufficient evidence). Thus, while we are permitted to substitute our judgment for that of the jury when considering credibility and weight determinations, we may do so only to a very limited degree. Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). Circumstantial evidence is as probative as direct evidence in establishing an actor's guilt. Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004). Indeed, circumstantial evidence alone is sufficient to establish guilt. Id. Furthermore, the standard of review on appeal is the same for both direct-and circumstantial-evidence cases. Id. A person engages in organized criminal activity "if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination, . . . he commits or conspires to commit" one of several enumerated offenses, including theft. Tex. Penal Code Ann. § 71.02(a)(1) (Vernon 2007). Theft is committed when a person "unlawfully appropriates property with intent to deprive the owner of property." Tex. Penal Code Ann. § 31.03(a) (Vernon 2003). "Appropriate" means "to acquire or otherwise exercise control over property other than real property." See Tex. Penal Code Ann. § 31.01(4)(B) (Vernon 2003). Appropriation of property is unlawful if it is "without the owner's effective consent" or "the property is stolen and the actor appropriates the property knowing it was stolen by another." See Tex. Penal Code Ann. § 31.03(b)(1), (2). B. Application of Law to Facts B.J. appears to concede that he and his co-defendants did engage in organized crime as alleged, but contends that "any suggestion that the value of the items wrongfully appropriated is over two hundred thousand dollars is based on nothing more than guesswork." First, B.J. points to State's Exhibit 2A and contends that the State's case rested on the assumption, without supporting evidence, that an item sold by Bwatchers that was the same make or model as one sold in a store must have been obtained through theft. B.J. points out that investigator Osterberg did not individually identify which items on State's Exhibit 2A were stolen, and he conceded that some items, such as the cars and event tickets, were not suspected of having been stolen. Further, no other witness undertook to itemize or otherwise distinguish the items on the list that were allegedly stolen from those that were legitimately obtained. B.J also points out that Osterberg was unable to trace any item on the list to any of the complainants' stores, and the only thefts he actually witnessed totaled a little more than $1,200. Second, B.J. asserts that a review of State's Exhibit 2A reveals many items that were not listed in the indictment or the jury charge, and questions what the total value of the allegedly stolen items is after these items are deducted. Third, B.J. contends that, under Penal Code subsection 31.08(d), the consideration given for the stolen items, namely the $6.99 or $27.99 that Elizabeth Espirit or another accomplice paid for those items, should have been deducted from the total value. Based on the evidence, B.J. argues, it is impossible to ascertain with any accuracy which items were actually stolen and what their value may have been. But direct evidence alone is not required to sustain a conviction. It is well established that a fact finder can determine the identity and ownership of stolen property from circumstantial evidence. See Jordan v. State, 707 S.W.2d 641, 644-45 (Tex.Crim.App. 1986) ("Proof of ownership may be made by circumstantial evidence, just as any other issue in a criminal case."); Jones v. State, 458 S.W.2d 89, 91-92 (Tex.Crim.App. 1970) ("[A]rticles in an accused's possession may be identified by circumstantial evidence as well as by direct testimony. If it appears it or they correspond with articles that were stolen, the question may go to the jury."); Villani v. State, 116 S.W.3d 297, 306 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd) ("Proof of ownership may be made by circumstantial evidence."); Robinson v. State, No. 01-85-00970-CR, 1986 WL 12889, at *2 (Tex.App.-Houston [1st Dist.] Nov. 13, 1986, pet. ref'd) (not designated for publication) ("It is well settled that the identity and ownership of stolen property may be established by circumstantial evidence."). Here, the jury heard the cross-examinations of the witnesses, including the various witnesses' admissions that they could not specifically connect any of the items on State's Exhibit 2A to their stores. But the State's inability to demonstrate a connection by serial number or other identifier does not by itself render the evidence legally or factually insufficient. See Guevara, 152 S.W.3d at 49 ("The lack of direct evidence is not dispositive of the issue of a defendant's guilt."). Under the circumstances, the jury reasonably could have inferred that the property shown on State's Exhibit 2A that corresponded to the allegations in the indictment and evidence was the same property the theft ring stole from the stores. See Benson v. State, 240 S.W.3d 478, 481-82 (Tex.App.-Eastland 2007, pet. ref'd) ("We hold that the evidence is sufficient to support Benson's conviction. . . . In this case, Benson was shown having several items similar to those taken without there being any variance between the description and the items she had in her possession. . . . As noted by Benson, a conviction may no longer fall because the property possessed is not shown to be the identical property taken."); Rogers v. State, 929 S.W.2d 103, 108 (Tex.App.-Beaumont 1996, no pet.) (rejecting claim that evidence was insufficient to support burglary conviction and noting that it was for the fact finder to weigh whatever descriptive evidence and circumstances of guilt are presented regarding identification of the missing property to determine whether the property possessed by the defendant is the same property taken from the complainant's residence, including the particular setting in which the accused possessed the property and the specific type and quantity of the property possessed); see also Nickerson v. State, 810 S.W.2d 398, 399-401 (Tex.Crim.App. 1991) (holding that evidence was legally sufficient to establish that equipment recovered from car in which defendant was passenger was same equipment taken from electronics store even though the evidence did not show that it was the identical property taken). Here, the State presented considerable circumstantial evidence, accomplice testimony, and other evidence to establish that most, if not all, of the property shown on State's Exhibit 2A was stolen from the stores whose representatives are named in the indictment. The testimony from the store representatives established that each of the stores sold in varying degrees merchandise of the types alleged in the indictment that State's Exhibit 2A reflected was sold by Nicholas Jahanian on his eBay account. The accomplice testimony and other evidence, discussed above, showed that (1) the theft ring of which B.J. was a part stole large quantities of the types of merchandise alleged in the indictment from the stores during the relevant time, and (2) Nicholas sold the merchandise stolen by the ring from those stores on eBay for the benefit of the theft ring's members. Additionally, State's Exhibit 2A showed not only the vast quantity of merchandise of the types alleged in the indictment — over 2,000 items — but also the price at which he actually sold each of the items. The State concedes that the aggregate total sales price amount of $258,9770.36 shown on State's Exhibit 2A included some items that were either not alleged in the indictment, mentioned in the charge, or within the types of merchandise shown sold by the stores, and therefore were not to be included in calculating the value of the merchandise stolen from the stores. But the jury was aware from investigator Osterberg's testimony that some of the items should not be considered in its value determination. And, as B.J. notes, items such as cars and event tickets were not alleged in the indictment or the jury charge, and so would not have been considered by the jury. B.J. seems to suggest that excluding the items that were not allegedly stolen would result in an amount below $200,000, but he does not expressly allege that to be so and does not demonstrate that it is so. Taking B.J.'s suggestion to its conclusion, this court undertook its own review of State's Exhibit 2A and determined that the sales prices of items not alleged in the indictment as stolen account for less than $25,000 of the total of $258,970.36. Thus, even subtracting the items B.J. contends should not have been included in the jury's calculation, the total amount is still well in excess of $200,000. Just as this court did, the jury was capable of reviewing State's Exhibit 2A and determining which items were included in the indictment and which should be disregarded. Osterberg testified that he linked B.J. and his family to over $200,000 in theft from Wal-Mart, Target, Lowe's, and Home Depot based on State's Exhibit 2A, surveillance, documents, and talking to witnesses in the case, including people from Wal-Mart, Target, Lowe's, and Home Depot. The jury could determine the aggregate value of the items it found were stolen from the stores whose representatives were named in the indictment and conclude that the value of the stolen items exceeded $200,000. See Valdez v. State, 116 S.W.3d 94, 98-99 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd) (rejecting claim that evidence of value over $200,000.00 was legally and factually insufficient in theft prosecution in which investigator calculated the value of stolen electronic components by determining the lowest price for which the items could have been purchased near the time of the theft and appellant offered contradictory testimony that the value was much lower based on the amount for which he could sell certain of the stolen items). Further, in addition to considering the amounts identified on State's Exhibit 2A, the jury heard evidence that Nicholas sold additional items totaling about $13,000 through an independent eBay store while his eBay account was suspended. The State also presented evidence that the theft ring continued selling items on eBay after the date the eBay compiled the information on State's Exhibit 2A. Lastly, although B.J. contends "it is beyond dispute" that consideration was given in each instance when an item was stolen, and appears to complain that the jury should have deducted such amounts from the aggregate value of the allegedly stolen items based on Penal Code subsection 31.08(d), neither this subsection nor the evidence supports this assertion. Subsection 31.08(d) specifically provides:If the actor proves by a preponderance of the evidence that he gave consideration for or had a legal interest in the property or service stolen, the amount of the consideration or the value of the interest so proven shall be deducted from the value of the property or service ascertained under Subsection (a), (b), or (c) to determine value for purposes of this chapter.Tex. Penal Code Ann. § 31.08(d). B.J. does not point out where in the record he offered proof of any total dollar amount of consideration that any member of the theft ring paid for the stolen merchandise, or any means, formula, or reasonable basis by which such an amount could be calculated. Moreover, the evidence presented is contrary to B.J.'s representation. The record reflects that the theft ring purchased or stole lower-priced merchandise, often items that would ring up as roughly either about $7 or $27, to obtain or to forge bar-code labels to put on the higher-priced merchandise they desired. At the stores, they switched the UPC codes on the higher-priced merchandise with the UPC codes for the lower-priced merchandise previously obtained, so that they could purchase the higher-priced items for the price of the lower-priced goods. The higher-priced items generated receipts show the purchase of the lower-priced merchandise, which the theft ring would then use to return the lower-priced merchandise to obtain a cash refund or, in some instances, a gift card. As Elizabeth Espirit and Dee Williams testified, in some instances the theft ring was actually able to make a profit on returned items, such as when they would return a $27 Lexmark printer cartridge they obtained for $6 (by using a fake UPC code from a Brita water filter), and get a refund of the printer cartridge's actual price of $27. State's Exhibit 2A also reflects that a number of gift cards were sold on Nicholas Jahanian's eBay account, providing an additional source of profit to the ring. Consequently, even though members of the theft ring paid the price rung up for the lower-priced merchandise at the time they obtained the higher-priced merchandise from the stores, the jury could have determined that at least some, if not most, of the higher-priced merchandise cost them little or nothing. Under the facts and circumstances of this case, the jury could have rationally inferred that the theft ring's members stole from the four complainants the types of merchandise alleged in the indictment, with a total value greater than $200,000. And, viewed in a neutral light, the evidence is not so weak that the jury's verdict seems clearly wrong and manifestly unjust, nor is the contrary evidence so strong that the jury's verdict is against the great weight and preponderance of the evidence. See Watson, 204 S.W.3d at 415-16; Jahanian v. State, No. 14-07-00700-CV, (Tex.App.-Houston [14th Dist.] May 28, 2009, no pet. h.) (mem. op., not designated for publication) (holding evidence of ownership property legally and factually sufficient to support conviction of Nicholas Jahanian for same UPC-code-switching scheme); Jahanian v. State, No. 14-07-00702-CV, (Tex.App.-Houston [14th Dist.] May 28, 2009, no pet. h.) (mem. op., not designated for publication) (holding evidence of ownership and value of property legally and factually sufficient to support conviction of Krystal Jahanian for same UPC-code-switching scheme); Jahanian v. State, No. 14-07-00703-CV (Tex.App.-Houston [14th Dist.] May 28, 2009, no pet. h.) (mem. op., not designated for publication) (holding evidence of identity and value of property legally and factually sufficient to support conviction of Cindy Jahanian for same UPC-code-switching scheme). We therefore overrule B.J.'s first and second issues.