No. 14-10-00291-CR
Opinion filed July 7, 2011. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 405th District Court Galveston County, Texas, Trial Court Cause No. 09CR2220.
Panel consists of Justices ANDERSON, BROWN, and CHRISTOPHER.
TRACY CHRISTOPHER, Justice.
A jury convicted appellant Burnett Pines of felony theft of property worth more than $1,500 but less than $20,000, and after considering enhancements, the trial court assessed punishment at ten years' confinement in the Texas Department of Criminal Justice, Institutional Division. Appellant contends that the trial court erred in denying his motion for instructed verdict, and asserts that, given the long history of the presumption of innocence, it is "intellectually dishonest" for courts to presume that a person in the unexplained possession of stolen property is guilty of theft. Because there is no such presumption of guilt and the evidence was legally sufficient to support the verdict, we affirm the trial court's judgment.
I. BACKGROUND
Robert Reeves, the electrical-production foreman for Farmer's Alloy Fabricating, arrived at work at about 5:45 a.m. on Monday, July 20, 2009, to discover that the facility had been burglarized. The stolen property was worth more than $30,000, and included the company pickup truck and hundreds of pounds of copper wiring. Reeves reported that the property was secure when last seen on Friday, July 17, 2009. After learning of the theft, company owner Jason Farmer visited local scrap yards looking for the stolen wiring. At Castillo's Recycling, Farmer found a large quantity of the missing property. Castillo's Recycling buys copper wiring as scrap metal and determined the price based on the material's weight. Yesenia Olivo, an employee of Castillo's Recycling, testified that a man and woman came to the facility at 8:05 a.m. on Saturday, July 18, 2009 with wiring weighing 600 pounds wrapped in a blanket in the trunk of their car. The man identified Annie Coleman as the owner of the wiring, and provided a copy of Coleman's driver's license. Olivo offered a purchase price based on the value of the material as scrap copper wiring, and the man accepted. Olivo was unaware, and the seller did not mention, that some of the wiring was silver-plated and therefore more valuable. The pair returned at around 2:00 p.m. that afternoon and sold more material to Castillo's Recycling. The same couple sold 654 pounds of wiring to Momentum Recycling on the morning of July 20, 2009, and the transaction was captured on Momentum's surveillance videotape. Photographs produced from the videotape show a black male wearing leather gloves transferring the wires from the trunk of a car while a black female sits nearby. Momentum employee George Phillips Jr. testified that although the wiring was sold as loose scrap metal, some of the wiring was still on spools until the seller removed it for weighing. According to Phillips, the male seller identified Annie Coleman as the owner of the material, and signed her name on the receipt. A woman named Annie Coleman did own the car used to transport the wiring to the buyers, but Coleman was older than the woman shown on Momentum's surveillance videotape. When visiting Coleman's home, however, Farmer saw the younger woman who is seen on the tape. The younger woman was Shante Thomas, and she testified as an accomplice witness at appellant's trial. According to Thomas, she and appellant were staying at Coleman's house in July 2009, and Coleman told Thomas to drive appellant to the scrap-metal dealers. When Thomas went to Coleman's car, appellant already had loaded the wiring into the trunk. Thomas drove appellant to the two recycling companies, and appellant paid Coleman and Thomas for their assistance. Appellant was indicted for theft of copper wire valued at more than $20,000 and less than $100,000, and was convicted of the lesser-included offense of theft of property valued at more than $1,500 and less than $20,000. II. ANALYSIS
In a single issue, he asks this court to reverse the trial court's judgment and render a judgment of acquittal on the ground that the trial court erred in denying his motion for an instructed verdict. We treat a point of error complaining about a trial court's failure to grant a motion for directed verdict as a challenge to the legal sufficiency of the evidence. Williams v. State, 937 S.W.2d 479 (Tex. Crim. App. 1996). To evaluate the legal sufficiency of the evidence, we consider all of the evidence in the light most favorable to the verdict to determine whether a rational juror could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 463 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Here, appellant was convicted of theft. A person commits theft by unlawfully appropriating property with the intent to deprive the owner of the property. TEX. PENAL CODE § 31.03(a) (West. 2011). One "appropriates" property by transferring or purporting to transfer title to or an interest in the property, or by acquiring or exercising control over property other than real property. Id. § 31.01(4). As relevant to this case, "[a]ppropriation of property is unlawful if (1) it is without the owner's effective consent; [or] (2) the property is stolen and the actor appropriates the property knowing it was stolen by another. . . ." Id. § 31.03(b)(1), (b)(2). Thus, the evidence is legally sufficient if a rational jury could have found, beyond a reasonable doubt, that appellant unlawfully acquired, transferred, or exercised control over the wire. The appellant, however, does not discuss the legal sufficiency of the evidence. His argument that the trial court erred in denying his motion for instructed verdict is supported only by three paragraphs concerning the history of the presumption of innocence, followed by this statement: "It is argued here that it is intellectually dishonest that the offense of theft . . . is the only offense where the presumption of innocence is not given the accused . . ., unless the accused waives his right to remain silent and gives an[] explanation of his possession of the `stolen' property." (emphasis added) (citations omitted). Because appellant relies on Hardesty v. State as support for this statement, we understand appellant to assert the same argument made by the appellant in Hardesty, i.e., that there is "insufficient evidence to support the presumption of guilt arising from appellant's recent and unexplained possession of stolen property." 656 S.W.2d 73, 75-76 (Tex. Crim. App. 1983) (emphasis added). To clarify, however, there is no such "presumption" of guilt. Possession of stolen property is circumstantial evidence that may support an inference of guilt, but it does not eliminate the presumption of innocence. See id. at 77 ("[T]he burden of proof is not shifted, and the State must still prove each element of the crime beyond a reasonable doubt."). Moreover, the inference is not based solely on unexplained possession. To warrant an inference of guilt, the defendant must have personally possessed the property soon after the theft, and must have distinctly and consciously asserted a right to the property. Jackson v. State, 645 S.W.2d 303, 306 (Tex. Crim. App. 1983). It therefore might be more accurate to say that such circumstantial evidence gives rise to an inference of guilt that the accused's silence leaves unrebutted. Here, the trial court instructed the jury that appellant was presumed innocent. On the other hand, the jury heard evidence that appellant personally possessed the stolen property, as demonstrated not only by the testimony of several witnesses but also by a videotaped record. He also distinctly and consciously asserted his right to the property by selling it. See Rollerson v. State, 196 S.W.3d 803, 807 (Tex. App.-Texarkana 2006) (holding that the attempted sale of stolen property is "a distinct and conscious assertion of right to the property"), aff'd, 227 S.W.3d 718 (Tex. Crim. App. 2007); see also Chavez v. State, 843 S.W.2d 586, 588 (Tex. Crim. App. 1992) ("[E]vidence sufficient to show an accused exercised control over property without consent of the owner, intending to deprive him of it, is always enough to prove theft."). And he began selling the stolen property for its scrap value less than twenty-four hours after the theft. See Jackson v. State, 12 S.W.3d 836, 840-41 (Tex. App.-Waco 2000, pet. ref'd) (evidence that the appellant sold stolen property to a recycling center for its scrap value two days after the theft is legally sufficient to support theft conviction). Despite the presumption of innocence, the jury could infer from these circumstances that appellant was guilty of unlawfully appropriating the property, and appellant's silence left that inference unrebutted. A rational jury therefore could find that this evidence established the essential elements of the offense beyond a reasonable doubt. Because the judgment is based on legally sufficient evidence rather than on a presumption of guilt as appellant seems to suggest, we affirm the trial court's judgment.