No. 05-05-00925-CR
Opinion filed August 15, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F05-00464-UJ. Affirmed.
Before Justices MOSELEY, LANG, and MAZZANT.
Opinion By Justice MOSELEY.
On a plea of not guilty, Francisco Silva was tried and convicted by the trial court of theft of property valued at $1,500 or more, but less than $20,000; punishment, enhanced by one prior conviction, was assessed at four years' confinement. Appellant's three points of error challenge an alteration to the indictment and the legal and factual sufficiency of the evidence to support his conviction. For the following reasons, we overrule appellant's points of error and affirm the trial court's judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
In June 2003, appellant was hired as part of a maintenance crew at an apartment complex in Addison, Texas. His job included removing large unwanted items with a "Gator" cart and taking trash to a compactor. William and Letitia Fanning lived at the apartment complex and stored furniture and other items in an individual locked storage unit. Maintenance workers did not have keys to the individual storage units, but appellant had access to the storage area. In October 2003, William and Letitia left for a one- or two-week trip; when they left, their storage unit was completely full, and the door was locked. They returned on October 27, and discovered their storage unit unlocked and empty. Of the items taken, only a china cabinet, a computer printer, and a mattress were recovered. Photographs of these items were admitted as State's Exhibit Numbers 1, 2, and 3, respectively. According to Letitia, who first discovered the break-in, appellant was in the storage area when she walked in. Appellant, who had been friendly in passing, "looked a little bit on edge and a little bit suspicious," and Letitia had never seen him like that before. Because appellant seemed nervous, Letitia asked him where her property was and told him she wanted it back. Appellant started asking her questions and "talking about his family and children," which they had never discussed before and which seemed "odd" to Letitia. Appellant told her he and a co-worker had noticed that the door was unlocked two days before the incident and had reported it. Later, Letitia told appellant again that she wanted her property back, but appellant said he did not have it and did not know anything about it. William testified that he told appellant about all the missing items, specifically the china cabinet, printer, and mattress. Appellant denied any knowledge of the incident. At first, appellant was helpful and sympathetic, but then told William that he had been told not to talk to the Fannings about the break-in. William testified to the value of these three items. Both Letitia and William testified they did not give appellant consent to take their property. Appellant's supervisor, Peggy Scott, testified she saw the unlocked door "at some point," looked inside, saw "stuff on the floor," and reported the open storage unit to the apartment complex's maintenance manager. An Addison police investigator, Charlie Foster, interviewed appellant about three days after the incident; Foster considered appellant a suspect because he gave Foster a fictitious date of birth. About twelve or thirteen days later, Foster again interviewed appellant, who told Foster that on the day of the incident he found a wooden "desk" and a mattress next to a dumpster near the Fannings' unit and put them in another unit, also near the Fannings' unit. Appellant told Foster that, when he heard the description of the stolen property, he realized he was in possession of stolen property. Foster found the cabinet, mattress, and printer in the unit described by appellant, which was about fifty feet from the Fannings' unit and used for storage by the maintenance crew. Appellant testified that, when he got to work on October 27, a piece of furniture and a mattress were leaning up against the fence next to the trash compactor, and he thought they were trash. This was not unusual because there were often items left there to be thrown away. He identified State's Exhibit Numbers 1 and 3 as photos of the items he found. After he made his rounds that morning, he put the items in an empty storage room. He testified that when an item was too big for the compactor, it was put in a storage room, and that other maintenance workers also used the room for storage. While appellant and his wife were eating lunch, he saw Letitia come out of the storage unit "crying and hysterical." When appellant asked her what happened, she told him her things had been stolen, but she did not describe the items then. The police were called. Later, William spoke to appellant several times and described the stolen items, including a china cabinet and a mattress. Appellant then received instructions not to talk to William about the incident. Appellant testified he told Foster there were some items in a storage room, including a mattress, but appellant did not know if it was the Fannings' property. Foster "went and checked it." Appellant was indicted for unlawfully, intentionally, and knowingly appropriating property, namely, exercising control over the china cabinet, the printer, and the mattress, of the value of at least $1,500, but less than $20,000, without the effective consent of the owner, with the intent to deprive the owner of the property. The indictment also alleged that the property was stolen and appellant appropriated it, knowing it was stolen by another. Appellant pleaded true to an enhancement paragraph alleging a prior felony conviction. II. ALTERATIONS IN THE INDICTMENT
After the trial court called the case and before appellant was arraigned, the trial court said it would hear the State's request "to strike some things in the indictment." The State moved to strike certain words from the descriptions of the property alleged to have been stolen. The face of the indictment was altered without objection. The indictment contains the handwritten notation: "strike in the Indictment made 5/25/05." In his first point of error, appellant argues that the trial court erred in proceeding with a defective indictment. He contends the indictment was not properly amended because, although the indictment was physically altered by deleting certain words, the trial court did not authenticate the amendment with a signature. A. Standard of Review and Applicable Law
The code of criminal procedure provides that "[a] matter of form or substance in an indictment . . . may . . . be amended after the trial on the merits commences if the defendant does not object" and "[a]ll amendments of an indictment . . . shall be made with the leave of the court and under its direction." Tex. Code Crim. Proc. Ann. arts. 28.10(b), 28.11 (Vernon 1989). However, not every alteration on the face of an indictment is an amendment. Eastep v. State, 941 S.W.2d 130, 132 (Tex.Crim.App. 1997), overruled in part on other grounds by Riney v. State, 28 S.W.3d 561, 566 (Tex.Crim.App. 2000). The deletion of surplus language is an alteration that constitutes an abandonment, not an amendment. Id. at 134-35. Surplusage is language not legally essential to constitute the offense alleged. Id. at 134. If the alteration is an abandonment, the requirements of article 28.10 do not apply. Id. at 133. To complain of an error in abandonment, one must raise the complaint on appeal or it is waived. See State v. Murk, 815 S.W.2d 556, 558 (Tex.Crim.App. 1991) (applying former rule of appellate procedure 52(a), now rule 33.1(a), and addressing appellant's failure to object to amendment on day of trial pursuant to article 28.10); Hoitt v. State, 30 S.W.3d 670, 674 (Tex.App.-Texarkana 2000, pet. ref'd) ("If an indictment is amended on the day of trial, the defendant must object to the amendment or the objection is waived."). B. Discussion
We disagree with appellant's argument that these alterations were amendments, and agree with the State that the alterations were deletions of surplus language and thus abandonments. However, appellant did not object on the day of trial when the alterations were made or thereafter that the trial judge failed to authenticate the alterations with a signature. Therefore, because appellant failed to timely assert his objection, he has waived his challenge on appeal. See Murk, 815 S.W.2d at 558; Hoitt, 30 S.W.3d at 674; Tex.R.App.P. 33.1(a). We overrule appellant's first point of error. III. SUFFICIENCY OF THE EVIDENCE
In his second and third points of error, appellant challenges the legal and factual sufficiency of the evidence supporting his conviction. He argues the evidence against him is circumstantial and does not show he had the intent to deprive the Fannings of their property. A. Standard of Review and Applicable Law
We apply well-known standards when reviewing challenges to the legal sufficiency of the evidence. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Garcia v. State, 57 S.W.3d 436, 441 (Tex.Crim.App. 2001). Viewing the evidence in the light most favorable to the verdict, we determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005); Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004). The trier of fact is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to their testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). In a factual sufficiency review, we view all of the evidence in a neutral light and will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla, 143 S.W.3d at 817 (citing Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004)). The question under a factual sufficiency challenge is whether, considering all of the evidence in a neutral light, a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484. Evidence can be factually insufficient if the evidence is too weak to support the finding of guilt beyond a reasonable doubt, or contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484-85. In examining a factual sufficiency challenge, we defer to the factfinder's determination of the credibility of the evidence. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). A person commits a theft offense is he unlawfully appropriates property with intent to deprive the owner of the property. Tex. Pen. Code Ann. § 31.03(a) (Vernon Supp. 2006); see Ex parte Luna, 784 S.W.2d 369, 371 (Tex.Crim.App. 1990). 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. Tex. Pen. Code Ann. § 31.03(b)(1)-(2). Evidence 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. 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 arrest fails to make a reasonable explanation showing his honest acquisition of the property, the factfinder may draw an inference of guilt. Hardesty v. State, 656 S.W.2d 73, 76 (Tex.Crim.App. 1983). Further, when various items of property are stolen at the same time, recent, unexplained, personal possession of any one item is sufficient to support a conviction for theft of all the stolen items. Hite v. State, 650 S.W.2d 778, 781 (Tex.Crim.App. 1983). To draw the inference of guilt from the circumstance alone of possession of stolen property, the accused must be shown to have been in possession thereof recently after the actual theft. Sutherlin v. State, 682 S.W.2d 546, 549 (Tex.Crim.App. 1984). Ordinarily, whether stolen property is recently possessed by the accused is a question of fact. Id. 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). If the accused offers an explanation of his possession of recently stolen property at the time of his arrest, the record must demonstrate that the explanation is either false or unreasonable before the evidence to support 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 be shown by circumstantial evidence. Chudleigh v. State, 540 S.W.2d 314, 317 (Tex.Crim.App. 1976). B. Discussion
The evidence showed appellant was in personal possession of property that had been taken from the Fannings' unit within the previous two weeks by moving it from the fence to another storage unit, although other employees had access to that storage unit. Thus, there was evidence appellant's possession was personal and recent. See Sutherlin, 682 S.W.2d at 549; Todd, 601 S.W.2d at 720. William testified that he specifically described the china cabinet, the printer, and the mattress to appellant and that he had conversations with appellant during "the entire course" of the investigation. Appellant told William he did not know the whereabouts of the Fannings' property, despite finding, on the premises on the day of the discovery of the break-in, a "desk" and a mattress, which he identified at trial from their photographs, and moving them to another storage unit. During Foster's discussion with appellant a few weeks after the incident, appellant told Foster he realized he was in possession of stolen property when he heard the description of the property. Foster testified he did not recall specifically when appellant said he heard the description of the property. Appellant offered no explanation of the delay in such realization between his discussions with William and Foster. Although his explanation of his actions on the day the theft was discovered may have been reasonable on the day of the discovery, appellant offered no explanation why he did not recognize these items as stolen after discussions with the Fannings, which began immediately after the discovery. Thus, there was evidence from which the factfinder could have concluded that appellant's explanation at the time of his arrest was either false or unreasonable. See Adams, 552 S.W.2d at 815. We conclude that the trial judge as factfinder had sufficient evidence to 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; Hite, 650 S.W.2d at 781. Moreover, appellant's false identification to Foster is also a circumstance indicating guilt. See Felder v. State, 848 S.W.2d 85, 98 (Tex.Crim.App. 1992) (holding false identification to police officer, like evidence of flight, indicates consciousness of guilt and "an awareness [accused] needed to conceal his identity from law enforcement officials" and "may be evidence of a wrong act"). Having reviewed all the evidence under the appropriate standards of review, deferring to the factfinder's determination of the credibility of the evidence, we conclude the evidence is legally and factually sufficient to support appellant's conviction for theft. Accordingly, we overrule appellant's second and third points of error. IV. CONCLUSION
Having overruled appellant's three points of error, we affirm the trial court's judgment.