Uyamadu v. State

• Decision Date: 29 December 2011
• Docket Number: Nos. 14–10–00393–CR,14–10–00394–CR.,s. 14–10–00393–CR
• Citation: 359 S.W.3d 753
• Parties: Emeka Michael UYAMADU, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

359 S.W.3d 753

Emeka Michael UYAMADU, Appellant,

v.The STATE of Texas, Appellee.

Nos. 14–10–00393–CR

14–10–00394–CR.

Court of Appeals of Texas, Houston (14th Dist.).

Dec. 29, 2011.

Winston E. Cochran, Houston, for appellant.

Michelle R. Townsend, Houston, for appellee

Panel consists of Justices BROWN, BOYCE, and McCALLY.

OPINION

WILLIAM J. BOYCE, Justice.

A jury convicted appellant Emeka Michael Uyamadu of theft ¹ in cause number 1138060 and assessed punishment of ten years' confinement. A jury also convicted appellant of witness tampering ² in cause number 1176507 and assessed punishment at two years' confinement. The trial court ordered the sentences to be served concurrently. Appellant raises numerous issues on appeal. We affirm.

Background

Police Officer Kenneth Kalka was dispatched to a vehicle burglary in a hotel parking lot near Intercontinental Airport at about 9:30 a.m. on June 6, 2007. Several “Toughbook” laptop computers containing specialized software for hospital emergency management and preparedness were stolen from the vehicle. Officer Kalka was able to lift a palm print from the vehicle, but the print did not match the appellant.

Two of the Toughbook computers that were stolen in the June 6 burglary were discovered in appellant's luggage when the luggage set off the alarm at a baggage check location at Intercontinental Airport on July 12, 2007. Appellant intended to travel to Nigeria and had seven laptop computers in his luggage. Before appellant boarded his plane to fly to Nigeria, Customs Officer Robert Neal asked appellant if he had filed the required shipper's export declaration in order to take the computers out of the country. Appellant acknowledged that he did not file the declaration and told Officer Neal to contact his secretary regarding invoices for the computers he had in his luggage. Appellant boarded his plane and left the computers in the custody of customs officials.

Officer Neal brought the computers taken from appellant's luggage to Houston Police Officer Terry Robertson and ICE Agent Deanna Overholt. Officer Robertson and Agent Overholt ran the computers' serial numbers in national and Texas databases and determined that the two Toughbook computers appellant had in his luggage had been stolen in the June 6 burglary. They asked Special Agent Dan Young to inspect the computers and determine if anything on the computers had been altered. Agent Young noticed that the two stolen Toughbook computers were expensive and contained expensive specialized software that he had not seen before. He also noticed that the last access date on some of the computer files on the hard drive was July 5 or 6, 2007.

When appellant returned from Nigeria on August 13, 2007, Officer Robertson and Agent Overholt met appellant at the airport and interviewed him. Appellant stated that he had bought the computers at internet auctions in May 2007. He stated that he did not know much about computers and that his friend, Chike Nzewi, would inspect computers before appellant purchased them.

Appellant later was charged with theft of the two stolen Toughbook computers. Several months after appellant was charged with theft, Officer Robertson and Agent Overholt received information that prompted them to begin a new investigation into whether appellant had tampered with a witness. The investigation revealed that Sabrina Belfon had been contacted numerous times by Nzewi, who was appellant's friend and Belfon's former boyfriend, about agreeing to “take the charge” of theft for appellant in exchange for money. Working with law enforcement, Belfon agreed to wear a concealed microphone and record the conversations during a meeting she scheduled with appellant and Nzewi.

Belfon met with Nzewi and appellant for several hours on May 17, 2008. During the meeting, appellant told Belfon about the theft charges against him and explained how Belfon was supposed to “take the charge” for him.

After the May 17 meeting, Nzewi tried to contact Belfon by telephone numerous times. Belfon did not answer Nzewi's calls until a monitored call was set up by police on June 18, 2008. Nzewi asked Belfon to meet with him so Belfon could write her statement and give it to appellant's attorney. Appellant later was indicted for tampering with a witness.

A jury trial was held from April 16 to April 23, 2010. The jury convicted appellant of theft in cause number 1138060 and assessed punishment of ten years' confinement; the jury also convicted appellant of tampering with a witness in cause number 1176507 and assessed punishment at two years confinement. Appellant timely filed his notice of appeal raising six issues on appeal.

Analysis

I. Sufficiency of the Evidence

In his first and second issues, appellant argues that the evidence is insufficient to support his theft conviction in cause number 1138060 because the evidence does not establish that (1) the alleged value of the two Toughbook computers is at least $20,000 as required by the indictment and jury charge; and (2) “appellant personally stole the computers or appropriated the computers with knowledge that they had been stolen by somebody else.” In his third issue, appellant contends that the evidence is insufficient to support his conviction for tampering with a witness in cause number 1176507 because the evidence does not establish that Belfon was a “prospective witness.”

A. Standard of Review

When reviewing the sufficiency of evidence, we view all of the evidence in the light most favorable to the verdict to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 899 (Tex.Crim.App.2010) (plurality op.). We may not sit as a thirteenth juror and substitute our judgment for that of the factfinder by reevaluating the weight and credibility of the evidence. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999); Jefferson v. State, 346 S.W.3d 254, 256 (Tex.App.-Houston [14th Dist.] 2011, no pet.); see Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.1986) (expressing that jury may choose to believe or disbelieve any portion of the testimony). “Our review of ‘all of the evidence’ includes evidence that was properly and improperly admitted.” Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007).

We determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence viewed in the light most favorable to the verdict. Id. When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the verdict and defer to that resolution. Id. In viewing the record, we treat direct and circumstantial evidence equally; circumstantial evidence can be as probative as direct evidence, and circumstantial evidence alone can be sufficient to establish guilt. Id.

The sufficiency of the evidence is measured by the elements of the offense as defined in a hypothetically correct jury charge, which 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. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997).

B. Value of Stolen Computers

In his first issue, appellant contends that the evidence is insufficient to establish that the value of the stolen computers is at least $20,000 as required by the indictment and the jury charge.

Douglas Havron, the complainant and owner as alleged in the indictment and stated in the jury charge, testified that each computer cost $4,800; the installed host software for each computer cost $1,995; the installed command software for each computer cost $2,995; and the installed mobile software needed for each computer cost $1,995. The total is $23,570. Appellant contends this evidence does not satisfy the $20,000 threshold because the (1) computers themselves cost $4,800 each; and (2) the value of software installed on the computers cannot be considered in determining their value.

A person commits theft if he unlawfully appropriates property with intent to deprive the owner of property. Tex. Penal Code Ann. § 31.03(a) (Vernon 2011). The offense is “a felony of the third degree if the value of the property stolen is $20,000 or more but less than $100,000.” Id. § 31.03(e)(5).

Appellant argues that the jury charge did not define the term “computer,” and that a hypothetically correct jury charge would have contained a definition of that term. Because neither the theft chapter nor the general provisions and definitions in the Penal Code contain a definition for the term “computer,” appellant argues that a hypothetically correct jury charge would have included the definition for the term “computer” contained in Penal Code Chapter 33.

Chapter 33, entitled “Computer Crimes,” provides different definitions for the term “computer,” “computer network,” “computer program,” “computer services,” “computer system,” and “computer software.” See Tex. Penal Code Ann. §§ 33.01(4)-(9) (Vernon 2011). “Computer” is defined in Chapter 33 as “an electronic, magnetic, optical, electrochemical, or other high-speed data processing device that performs logical, arithmetic, or memory functions by the manipulations of electronic or magnetic impulses and includes all input, output, processing, storage, or communication facilities that are connected or related to the device.” Id. § 33.01(4).

Based on the Chapter 33 definition, appellant argues that the value of the two stolen computers must be measured without considering the value of software installed on them. Appellant acknowledges that all of the definitions of Chapter 33 are prefaced by the words, “In this chapter.” Appellant nevertheless argues that “[t]here is no reason to think the Legislature intended to adopt precise definitions for use in one...