Garraway v. State
| Decision Date | 11 April 2017 |
| Docket Number | NO. 03-14-00595-CR,03-14-00595-CR |
| Parties | Andrew Garraway, Appellant v. The State of Texas, Appellee |
| Court | Texas Court of Appeals |
NO. CR-11-0925, HONORABLE GARY L. STEEL, JUDGE PRESIDING
A jury convicted appellant Andrew Garraway of theft. See Tex. Penal Code § 31.03. Punishment was assessed at two years' confinement in state jail, but the district court suspended imposition of the sentence and placed Garraway on community supervision for five years. In six issues with various subparts, Garraway contends that the theft charge should not have been submitted to the jury because theft is not a lesser-included offense of burglary, that the charge erroneously allowed the jury to convict him without requiring unanimous agreement on every instance of theft, that the court abused its discretion in admitting certain exhibits and testimony over his objections, and that the evidence was legally insufficient to support his conviction. We will affirm the judgment.
BACKGROUND1
Andrew Garraway was charged by indictment with twenty counts of burglary of a habitation.2 Each count in the indictment alleged the date of the offense, the county where the offense occurred, the name of the victim, lack of consent from the victim, and that Garraway entered each habitation "with the intent to commit theft, did attempt to commit theft, and did commit theft." At trial, the jury heard testimony from five of the twenty victims named in the indictment, along with testimony from Garraway, Garraway's accomplice Justin Kajileh, and employees of the businesses where Garraway and Kajileh pawned items.
The victims were residents of apartment complexes in Hays County where many college students lived. Five victims testified about the items stolen from their respective apartments, including credit cards, cash, a computer, an iPod, a small digital camera, an $800 SLR camera, a television, a laptop, a saxophone, a graphing calculator, an Xbox console, controllers, and games.3 Owners of the credit cards learned that their cards had been used at several stores without their permission. All five of the victims who testified stated that they did not know Garraway and had not given him consent to enter their apartments or to take their property.
Kajileh, Garraway's accomplice, testified that Garraway was a childhood friend and college classmate who asked Kajileh for a loan to get his car out of the shop. Because Kajilehdid not have the money, he said that he and Garraway turned to burglary, targeting apartment complexes in the pre-dawn hours and looking for unlocked doors. Kajileh testified that he and Garraway started their burglaries in the same apartment complex where Kajileh lived and took things from five apartments on the first night. According to Kajileh, he stood watch while Garraway entered the apartment to take money or things that were worth money, including a saxophone, TV, and Xbox. Kajileh testified that items taken from the first burglary alone were sold at pawnshops in Austin for $1,500.
After "being so successful the first night," Kajileh said he and Garraway took more things from unlocked apartments and sold them to pawnshops, mainly in Austin but once or twice to shops in San Antonio.4 Kajileh testified that sometimes only one of them would enter the pawnshop and the other would wait in the car to avoid being seen in the shop together frequently and reduce the risk of being recognized. Kajileh recalled that he and Garraway quickly used the credit cards they took to buy food, gas, and gift cards before the credit cards were deactivated. Kajileh acknowledged that the gift cards could be used even after a victim's credit card was canceled. Kajileh testified that anytime he committed a burglary, Garraway was with him. Kajileh denied that any of the victims named in the indictment had given him or Garraway permission to enter their apartments or to take any property.
Kajileh testified that he was surprised when Garraway's girlfriend notified him that Garraway was arrested. Kajileh also testified that he was called in by police for questioning thefollowing week, after which he confessed and provided some of the stolen property in his possession to the police.
Contrary to Kajileh's testimony, Garraway testified that he did not participate in any of the burglaries and that he only helped Kajileh pawn items. Garraway testified that he was a "broke college student" and that Kajileh offered him a way to make money. Garraway admitted at trial that pawning the items was wrong and that the items were probably stolen or "black market," but he testified that he never inquired about the source of the items, considering it a "don't ask, don't tell" situation. Garraway also admitted that he used credit cards that he knew did not belong to him. Garraway agreed that the pawning of the items and using the credit cards was a common scheme. He testified that the value of all the items he and Kajileh pawned would be over $1,500 and that a list summarizing all the pawned items that was admitted into evidence appeared accurate. Garraway acknowledged that the value he received from the pawnshops was at the bottom end of the items' value.
Police detectives testified about their investigation of the case, and pawnshop managers testified about the transactions involving Kajileh and Garraway, some of which were captured on security videotapes and presented to the jury. At the conclusion of the trial, the jury convicted Garraway of theft but acquitted him of the burglary charges, and the court suspended imposition of his sentence, placing Garraway on community supervision for five years. This appeal followed.
DISCUSSION
Theft charge properly submitted to jury
Garraway contends that the theft charge against him should not have been submitted to the jury because theft was not a lesser-included offense of burglary of a habitation as indicted in this case. According to Garraway, the indictment is flawed for not specifying every element of the lesser-included offense of theft. An offense is a lesser-included offense if it is established by proof of the same or less than all the facts required to establish the commission of the offense charged. Tex. Code Crim. Proc. art. 37.09(1). The Texas Court of Criminal Appeals has held that one offense is a lesser-included offense of another if the indictment for the greater-inclusive offense: (1) alleges all of the elements of the lesser-included offense, or (2) alleges elements plus facts from which all of the elements of the lesser-included offense may be deduced. State v. Meru, 414 S.W.3d 159, 162 (Tex. Crim. App. 2013) (citing Ex parte Watson, 306 S.W.3d 259, 273 (Tex. Crim. App. 2009)). Elements of the lesser-included offense do not have to be pleaded in the indictment when they can be deduced from facts in the indictment. Id. In this situation, the reviewing court may use a functional-equivalence test, examining the elements of the lesser offense and deciding whether they are "functionally the same or less than those required to prove the charged offense." Id.
A person commits the offense of burglary of a habitation, the greater-inclusive offense alleged in this indictment, by entry into a habitation without the effective consent of the owner and committing or attempting to commit a felony, theft, or an assault. Tex. Penal Code § 30.02(a)(3). The State charged Garraway in each count of his indictment with "intentionally or knowingly, enter[ing] a habitation without the effective consent of [identified victim], the owner thereof, withthe intent to commit theft, did attempt to commit theft, and did commit theft." Theft is the appropriation of property without the owner's effective consent with intent to deprive the owner of the property. Id. § 31.03(a). In this case, the offense of theft is a lesser-included offense of burglary of a habitation because it is established by proof of the facts of burglary of a habitation as Garraway was charged, less proof of entry into the habitation. See Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011) (); Garcia v. State, 571 S.W.2d 896, 899 (Tex. Crim. App. 1978) (). We overrule Garraway's contention that the theft charge should not have been submitted to the jury as a lesser-included offense of his indictment for burglary of a habitation.
No charge errors
Garraway next contends that in this aggregated-theft case, the charge erroneously allowed the jury to convict him without requiring unanimous agreement on every instance of theft. However, the Texas Court of Criminal Appeals has rejected that contention, holding that in aggregated-theft cases, "[e]very instance of theft need not be unanimously agreed upon by the jury." Kent v. State, 483 S.W.3d 557, 562 (Tex. Crim. App. 2016) ().
Garraway also complains that the application section of the charge did not specify which statutory definition of "unlawful" appropriation of property was relied upon for establishingtheft. See Tex. Penal Code § 31.03(b) (). But when, as here, the indictment for theft does not specify a particular statutory definition of unlawful appropriation of property, the charge need not contain that specific statutory...
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