McClain v. State

Full title: TREVOR McCLAIN, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fourteenth District, Houston

Date published: Nov 13, 2008

No. 14-07-00498-CR (Tex. App. Nov. 13, 2008)

Opinion

No. 14-07-00498-CR

Opinion filed November 13, 2008. DO NOT PUBLISH. — TEX. R. APP. P. 47.2(b).

On Appeal from the 183rd District Court, Harris County, Texas, Trial Court Cause No. 1064716.

Panel consists of Justices ANDERSON, FROST, and Senior Justice HUDSON.^_

_ Senior Justice J. Harvey Hudson sitting by assignment.

MEMORANDUM OPINION

JOHN S. ANDERSON, Justice.

A jury found appellant, Trevor McClain, guilty of the felony offense of theft of $20,000 or more but less than $100,000. See Tex. Penal Code Ann. § 31.03(e)(5) (Vernon 2003). The trial court, after finding two alleged enhancements true, sentenced appellant to forty years' confinement in the Texas Department of Criminal Justice, Institutional Division. On appeal, appellant argues (1) his right to remain silent was violated when the State's witness commented on appellant's post-arrest silence and (2) the evidence is legally and factually insufficient to prove appellant committed the offense of theft in excess of $20,000. Finding no merit in these points, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On March 25, 2006, Martha Saathoff, a Houston Police Department officer who was working an approved extra job at Lakewood Church ("the Church") in Houston, Texas, discovered three Sony projectors, a twenty-seven inch LCD monitor, and two guitars were missing from the Church.¹ After an investigation by the Houston Police Department, appellant was arrested and charged with theft of property valued at $20,000 or more but less than $100,000. During trial, Richard Anderson, an investigator with the Houston Police Department, testified that, after he was assigned to the case, he visited the Church and viewed the security videotapes. After viewing the videotapes, Anderson focused his investigation on two white males. Anderson testified through further investigation he obtained appellant's name as one of the white males on the videotape. Anderson then contacted Sasha Shaddock, appellant's girlfriend at the time, and asked if she would meet with Anderson to view some pictures. Shaddock met with Anderson and identified both the suspects in the pictures. According to Anderson, after he met with Shaddock, he ran a criminal history check and a pawn-shop check. Anderson testified the pawn-shop check revealed appellant had recently pawned property at three different pawn shops in San Antonio and Houston. Anderson then confirmed that the unique serial numbers for the three Sony projectors stolen from the Church were identical to the serial numbers at the pawn shops. Anderson testified he visited a pawn shop in San Antonio and recovered one of the projectors. Anderson also testified he asked the owner to view a photo spread, which included appellant's picture. Anderson then visited a pawn shop in Houston and recovered a second projector. Appellant's father turned the third projector over to the police. In addition, Anderson testified the co-defendant, Steven Mayes, cooperated with the police and told Anderson where to find the LCD monitor and the two guitars. Shaddock testified she met with Anderson and looked at several photos. According to Shaddock, she identified the white males in the photos as appellant and Mayes. Shaddock also testified that, after she met with Anderson, appellant called her from San Antonio and told her he was working on an air-conditioning job. Shaddock testified she found it odd appellant was working in San Antonio. In addition, appellant called Shaddock after he was arrested and told her "he was going to get off because it was not his idea and the equipment was Steven Mayes' friend's." Andrea Guidry, a contract engineer for the Church, testified he was responsible for the maintenance and operation of all the technical aspects of the Church. Guidry explained that, as a part of his job, he often had to negotiate prices, so he considered himself familiar with price ranges for certain media items. Guidry testified Sony donated the projectors to the Church in June 2005. According to Guidry, the projectors had been used for approximately 100 hours before they were stolen and were in "perfect" and "immaculate" condition. Guidry testified Sony valued each projector at $14,995 at the time it donated them to the Church, and in Guidry's opinion, the fair market value of each projector at the time it was stolen was between $9,500 and $10,000. Guidry testified he took into account the condition of the projectors and the fact Sony had stopped production on that particular model when determining a value. Guidry also testified he researched several online stores such as Ebay, Super Warehouse, and ABT Electronics, and at the time of trial, projectors with the same model number were priced around $8,662. Furthermore, Guidry testified he received a second opinion on the projectors' value from a person he dealt with on a regular basis at Projector Warehouse. According to Guidry, that person valued the projectors anywhere from $9,500 to $12,000 each. On cross-examination, however, Guidry admitted he was valuing the projectors as if they were brand new because of their limited use. Additionally, Guidry admitted the prices he researched on Ebay were merely quoted prices, and he was not aware of an actual sale on Ebay that involved a Sony projector with the same model number. Michael Hodge, owner of the stolen guitars, testified he was a musician, producer, and leader of the Church's band. Hodge testified one of the guitars stolen was a custom-made guitar with a fair market value of $1,800 to $2,500 at the time it was stolen. The second guitar was a 1971 Fender, and according to Hodge, its fair market value was $850 to $1,200 at the time it was stolen. Paul Hall, director for the audio and technical production at the Church, testified he was responsible for all of the audio and television broadcasts at the Church. Hall testified he bought the twenty-seven inch LCD monitor in June 2005 for the Church. According to Hall, he paid $997.99 for the monitor. Hall testified that, when the original monitor was stolen, Hall purchased a new, thirty-inch monitor at Best Buy for approximately $1,000. Additionally, Hall testified the stolen monitor had been used approximately twelve hours per week and was in new condition. In Hall's opinion, the stolen monitor's fair market value at the time it was stolen was between $650 and $700. Next, Shirley Gonzalez, owner of a pawn shop in San Antonio, testified appellant came to her shop in late March 2006 and traded a Sony projector for $2,700. Gonzalez testified she spent some time searching on Ebay with appellant before agreeing on a price. According to Gonzalez, a new Sony projector with the same model number was priced at $8,800, so she offered appellant a little over one-fourth the cost. Gonzalez also testified Anderson came to her shop a few days later and showed her a photo spread. Gonzalez testified she identified appellant as the person who pawned the Sony projector. Nicholas Hughes, the State's last witness, testified he worked at a pawn shop in Houston. Hughes testified appellant came to his pawn shop in late March 2006 with a Sony projector and asked for a loan. Hughes testified he believed the projector was "almost new." According to Hughes, in order to determine the amount of the loan, he looked the item up on Ebay. Hughes testified he found a projector that was in significantly worse shape than appellant's priced at $6,500. Based on this price, Hughes loaned appellant $1,600. However, on April 12, 2006, the Houston Police Department placed a hold on the projector because it had been stolen. Hughes testified because the projector was stolen, he met with Officer Anderson, viewed a photo spread, and identified appellant as the person who pawned the projector. Appellant called Chris Newlin, owner of a video production company, as his only witness. Newlin testified he had experience in using, acquiring, and maintaining different types of video and audio equipment. Because of his experience and knowledge, appellant hired Newlin to evaluate and value the stolen Sony projectors. Newlin testified since Sony had stopped producing that particular model of projectors, the value of the projectors would quickly depreciate. Newlin also testified the value of a new object is often considerably less than the original manufacturer's suggested retail price. Furthermore, Newlin testified the stolen projectors could never have been resold as "new," despite their well-maintained condition. Newlin then testified about the research he performed on Ebay. Newlin explained he found only one projector, which was in similar condition, that actually sold on Ebay. According to Newlin, this projector sold for $1,811. However, Newlin admitted on cross-examination the seller of that particular projector was in a rush and sold the item very quickly. Newlin also testified he found two other projectors on Ebay, one with a start value of $10,000 and one with a start value of $5,000. But, Newlin explained that no one had bid on or bought either of these projectors. Additionally, Newlin testified he evaluated some online dealers, and they were selling new projectors between $5,500 and $6,500. Newlin then testified, in his opinion, each stolen projector had a fair market value of $3,600 at the time it was stolen. On cross-examination, Newlin explained he arrived at the $3,600 figure by taking 40% off of the new unit price posted by online dealers. However, Newlin could not give an explanation for why he used a 40% deduction. After hearing all of the evidence, the jury found appellant guilty of the felony offense of theft of $20,000 or more but less than $100,000. Subsequently, the trial court, after finding two alleged enhancements true, sentenced appellant to forty years' confinement in the Texas Department of Criminal Justice, Institutional Division. This appeal followed.

DISCUSSION

A. Did the State Violate Appellant's Right to Remain Silent?

In his first issue, appellant argues his right to remain silent was violated when the State's witness commented on appellant's post-arrest silence. According to appellant, the State used appellant's silence against him to prove guilt. During the State's direct examination of Officer Anderson the following exchange occurred:

Q: What did you do after you made the arrest on this case, Officer Anderson?

A: I had both the individuals transported to the jail where I conducted an interview. And Mr. McClain did not want to speak to me.

MR. RAMSEY [Appellant's Attorney]: Excuse me, your Honor. I object to any —

THE COURT: Sustained.

Strike that last answer.

(Emphasis added). 1. Analysis To preserve error for our appellate review, appellant must have made a timely, specific objection. Tex. R. App. P. 33.1(a); Turner v. State, 805 S.W.2d 423, 431 (Tex.Crim.App. 1991). In addition, appellant must have obtained an adverse ruling from the trial court. Turner, 805 S.W.2d at 431; see Caron v. State, 162 S.W.3d 614, 617 (Tex.App.-Houston [14th Dist.] 2005, no pet.) (citing Brooks v. State, 642 S.W.2d 791, 798 (Tex.Crim.App. 1982)) (stating the proper method of pursuing an objection until an adverse ruling is to object, request an instruction to disregard, and move for a mistrial). Here, assuming appellant's objection was specific enough to make the trial court aware of his complaint, the trial court sustained appellant's objection. The trial court then, sua sponte, instructed that the answer be stricken; however, appellant never requested an instruction to disregard and never moved for a mistrial. Thus, appellant received all of the relief requested. Failure to request further relief after an objection is sustained preserves nothing for review. Caron, 162 S.W.3d at 617; see Badall v. State, 216 S.W.3d 865, 872 (Tex.App.-Beaumont 2007, pet. ref'd) (holding appellant waived his arguments regarding a violation of his right to remain silent because he failed to pursue his objections until he received an adverse ruling). We overrule appellant's first issue.

B. Is the Evidence Legally and Factually Sufficient?

In his second issue, appellant argues the evidence is legally and factually insufficient to support a conviction for theft in excess of $20,000. According to appellant, the indictment alleged appellant "unlawfully, appropriate[d] by acquiring and exercising control over property, namely, TWO GUITARS, ONE MONITOR, THREE NAVITAR LENSES, AND THREE PROJECTORS." (Emphasis added). However, the jury charge alleged appellant "unlawfully, appropriate[d] by acquiring or exercising control over property, namely, two guitars, one monitor, three projectors, or three Navitar lenses." (Emphasis added). Appellant argues because the jury charge alleged the stolen property in the disjunctive, instead of the conjunctive like the indictment, the State was required to prove each alleged piece of stolen property was valued in excess of $20,000. Appellant claims the State raised its burden of proof by allowing the jury charge to state the stolen property in the disjunctive. Thus, according to appellant, the evidence at trial is legally and factually insufficient to support his conviction because none of the witnesses valued a single piece of stolen property over $20,000. 1. Standard of Review In a legal sufficiency review, we view all 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. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d. 560 (1979); Salinas v. State, 163 S.W.3d 734, 737 (Tex.Crim.App. 2005). The jury, as the sole judge of the credibility of the witnesses, is free to believe or disbelieve all or part of a witness's testimony. Jones v. State, 984 S.W.2d 254, 257 (Tex.Crim.App. 1998). The jury may reasonably infer facts from the evidence presented, credit the witnesses it chooses to, disbelieve any or all of the evidence or testimony proffered, and weigh the evidence as it sees fit. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). Reconciliation of conflicts in the evidence is within the jury's discretion, and such conflicts alone will not call for reversal if there is enough credible evidence to support a conviction. Losada v. State, 721 S.W.2d 305, 309 (Tex.Crim.App. 1986). We do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App. 1993); Harris v. State, 164 S.W.3d 775, 784 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd). Inconsistencies in the evidence are resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000). In a factual sufficiency review, we consider all the evidence in a neutral light. Prible v. State, 175 S.W.3d 724, 730B31 (Tex.Crim.App. 2005). The evidence may be factually insufficient in two ways. Id. at 731. First, when considered by itself, evidence supporting the verdict may be so weak the verdict is clearly wrong and manifestly unjust. Id. Second, where the evidence both supports and contradicts the verdict, the contrary evidence may be so strong that the beyond a reasonable doubt standard could not have been met. Id. In conducting a factual sufficiency review, we must employ appropriate deference so we do not substitute our judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim.App. 1996). Our analysis must consider the evidence appellant claims is most important in allegedly undermining the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). We determine the sufficiency of the evidence based on a hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). A hypothetically correct jury charge is "one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id. 2. Analysis Although appellant cites no authority to support his assertions, we will address his arguments briefly. First, in a theft case, the allegedly stolen property must be generally described in the indictment and conforming evidence must be adduced. Johnson v. State, 187 S.W.3d 591, 604 (Tex.App.-Houston [14th Dist.] 2006, pet. ref'd); see Lehman v. State, 792 S.W.2d 82, 84 (Tex.Crim.App. 1990). However, it is proper for the jury to be charged in the disjunctive even when the indictment uses the conjunctive. Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App. 1991); see Warren v. State, 810 S.W.2d 202, 203 (Tex.Crim.App. 1991) (stating in theft case that the jury charge could have properly alleged the stolen items in the disjunctive); Johnson, 187 S.W.3d at 604B05 (disagreeing with appellant's argument that the use of the disjunctive term "or" between the complainants' names in the jury charge required the State to prove appellant stole at least $20,000 from only one particular complainant, and holding, instead, the phrasing of the jury charge in the disjunctive did not change what the State had to prove); Croft v. State, 148 S.W.3d 533, 546 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (holding it is proper to charge the jury in the disjunctive even if the indictment charged in the conjunctive). Therefore, we conclude even though the indictment used the conjunctive, it was proper for the jury charge to allege appellant "unlawfully, appropriate[d] by acquiring or exercising control over property, namely, two guitars, one monitor, three projectors, or three Navitar lenses." We conclude the language in the jury charge did not require the State to prove each alleged piece of stolen property was valued in excess of $20,000. Accordingly, the jury was required to determine that appellant stole enough of the property alleged in the indictment to satisfy the $20,000 or more but less than $100,000 allegation. During trial, Guidry testified as an expert for the State. In his opinion, the fair market value of each projector at the time it was stolen was between $9,500 and $10,000. Guidry also testified that, at the time of trial, projectors with the same model number were priced at $8,662 online. Furthermore, Guidry testified he received a second opinion on the projectors' value from a person he dealt with on a regular basis at Projector Warehouse. According to Guidry, that person valued the projectors anywhere from $9,500 to $12,000 each. Hodge also testified as an expert for the State, and according to him, his custom-made guitar had a fair market value of $1,800 to $2,500 at the time it was stolen, and he testified his 1971 Fender had a fair market value of $850 to $1,200 at the time it was stolen. Lastly, the State's third expert, Hall, testified the stolen monitor's fair market value at the time it was stolen was between $650 and $700. On the other hand, Newlin, appellant's expert, testified that, at the time the property was stolen, each projector had a value of $3,600 and the LCD monitor had a value of $600. When determining the sufficiency of the evidence, the jury is the sole judge of the facts, the credibility of the witnesses, and the weight to be given the evidence. Wyatt v. State, 23 S.W.3d 18, 30 (Tex.Crim.App. 2000); Beckham v. State, 29 S.W.3d 148, 151 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). In addition, the jury may believe or disbelieve all or part of any witness's testimony. Jones v. State, 984 S.W.2d at 258. Reconciliation of conflicts in the evidence is within the jury's discretion, and such conflicts alone will not call for reversal if there is enough credible evidence to support a conviction. Losada, 721 S.W.2d at 309. Thus, the jury was entitled to believe Guidry's testimony that the value of each stolen projector was between $9,500 and $10,000. This testimony alone satisfies the $20,000 allegation in appellant's indictment and jury charge. Viewing the evidence in the light most favorable to the verdict, we hold a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Salinas, 163 S.W.3d at 737. Thus, the evidence is legally sufficient to support appellant's conviction. Viewing the evidence in a neutral light, we hold the evidence supporting the verdict is not so weak that the verdict is clearly wrong and manifestly unjust; nor was the contrary evidence so strong the beyond a reasonable doubt standard could not have been met. See Prible, 175 S.W.3d at 730B31. Thus, the evidence is factually sufficient to support appellant's conviction. We overrule appellant's second issue.

CONCLUSION

Having overruled appellant's two issues, we affirm the trial court's judgment.