King v. State, 01-85-0383-CR

• Decision Date: 29 May 1986
• Docket Number: No. 01-85-0383-CR,01-85-0383-CR
• Citation: 712 S.W.2d 799
• Parties: Lesha Patrice KING, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 799

712 S.W.2d 799

Lesha Patrice KING, Appellant, v. The STATE of Texas, Appellee.

No. 01-85-0383-CR.

Court of Appeals of Texas Houston (1st Dist.).

May 29, 1986.

Charles F. Baird, Alan Tanner, Houston, for appellant.

John B. Holmes, Jr., Harris County Dist. Atty., Kathlyn Giannaula, Harris County Asst. Dist. Atty., Houston, for appellee.

Before SAM BASS, COHEN and DUNN, JJ.

OPINION

DUNN, Justice.

This is an appeal from a conviction for theft. The jury assessed punishment at 3 years confinement and a $2500 fine.

The State's evidence was circumstantial, and appellant's sole ground of error challenges its sufficiency.

The complainant, Tom Folmer, testified that he went to a fundraiser for the South Houston Chamber of Commerce at the Hobby Airport Hilton Hotel on the evening of May 11, 1984. He left the fundraiser between 10:00 and 11:00 p.m. and went across the hall to the hotel nightclub, where he was a regular customer. He was also accustomed to wearing expensive jewelry and testified that on that night, his jewelry was worth approximately $17,000. Folmer stated that he and appellant began talking at the bar, but he could not remember who initiated the conversation. Folmer estimated that his alcohol consumption throughout the evening consisted of 4 to 6 drinks at the fundraiser and 1 drink every 30 to 45 minutes at the nightclub until he left around 1:30 a.m. He could not remember if he had eaten lunch or dinner that day. He described himself as a heavy social drinker and explained that it was customary for him to drink large quantities of alcohol on the weekends. Folmer testified that he and a group of his friends, including his girlfriend, stayed at the club with appellant drinking and listening to the band for several hours.

Folmer testified that he and appellant left the nightclub in his automobile between 1:00 and 1:30 a.m. and drove to his home. He could not remember whether he invited her to come with him or whether it was by "mutual agreement." In the parking lot of his apartment complex, Folmer began to feel wary and placed his wallet under the car's front seat. After Folmer and appellant entered his apartment, appellant went to the kitchen to get two beers while Folmer put on a video tape. Folmer testified that the last thing he remembered was drinking some of his beer and that he could not remember anything else until he woke up in his bed at 4:00 p.m. the next afternoon. He did not remember going to his bedroom, and stated that, upon awakening, it was very difficult for him to move or think. According to Folmer, he did not usually feel this way when he had a hangover, and he assumed that he had been drugged. At this time, he noticed that all the jewelry he had worn the night before was missing. After Folmer called the police, he went to his car and found it to be unlocked, with his keys and wallet lying on the floorboard. Everything had been removed from his wallet, including his driver's license, credit cards, and approximately $1,000 in cash. The initial police report stated that the stolen property consisted of jewelry, credit cards, 2 cameras, and a video recorder. The cameras and video recorder were subsequently found by Folmer at his place of business.

Houston Police Sergeant Billy Johnson testified that he was familiar with a scheme to commit theft in which the usual victim was a male wearing expensive jewelry and drinking in a bar. In the typical case, a woman would engage the victim in conversation and slip a small dose of a barbituate into his drink. After the victim had taken the woman home with him, she would give him one final drink containing a large dose of the drug, and he would lose consciousness. Sergeant Johnson's testimony did not show a connection between appellant and this type of scheme nor was there any evidence, other than Folmer's own speculation, that he had been drugged. Folmer stated that he tried to give the remainder of the can of beer for analysis of its contents to the officer who responded to his call on May 12, but that the officer did not take it.

Folmer testified that, in September of 1984, he saw the woman he had taken home with him on May 12, four months before. He observed her for about an hour and tried to follow her when she left, but lost her in the crowd. He returned to the bar and asked the bartender for a copy of the American Express receipt she had left in payment for her drink. This information was given to Sergeant Johnson.

After determining that appellant was the owner of the American Express card, Sergeant Johnson contacted her and went to her residence at her invitation. With her cooperation, he obtained her photograph and composed a photograph spread. Folmer and another witness, Chuck Hyde, tentatively identified appellant as the woman they had seen on the night of May 11. Folmer testified that he remembered the woman he took to his home as wearing more makeup than that shown on appellant in the photo spread. Sergeant Johnson then obtained appellant's driver's license photo, which showed her wearing more makeup, and composed a second photograph spread. Folmer positively identified appellant from the second group of photographs, and Hyde made a second tentative identification.

At trial, appellant was positively identified by Folmer, Hyde, another friend of Folmer's, and Folmer's girlfriend. The manager of the nightclub, who had been in and out of the club all evening on May 11, and who had seen the woman with Folmer both inside the bar and outside in the hallway, failed to identify appellant.

Appellant testified that she was in the nightclub at the Hilton Hotel on September 13, 1984, and that she paid for her drink with an American Express card. Approximately 3 weeks later, she received a phone call from Sergeant Johnson asking if he could meet with her. At this meeting, appellant referred to her personal calendar, which showed that she had been at home on the evening of Friday, May 11, 1984, entertaining a friend. This friend testified that he could not remember the exact night he saw appellant, although he did remember seeing her on a Friday night around the middle of May 1984.

The standard for appellate review is the same for circumstantial evidence cases as it is for direct evidence cases. The evidence is to be viewed in the light most favorable to the prosecution, and the relevant question is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Carlsen v. State, 654 S.W.2d 444 (Tex.Crim.App.1983).

Under Tex. Penal Code Ann. sec. 31.03(a) (Vernon Supp.1986), the essential elements of the offense of theft are that a...