Morales v. State, No. 08-06-00067-CR (Tex. App. 1/30/2009)

Decision Date30 January 2009
Docket NumberNo. 08-06-00067-CR,08-06-00067-CR
PartiesMAGDALENA MORALES, Appellant, v. THE STATE OF TEXAS, Appellee.
CourtTexas Court of Appeals

Appeal from the 171st Judicial District Court of El Paso County, Texas, (TC# 20050D02077)

Before CHEW, C.J., McCLURE, and CARR, JJ. CARR, J. (Not Participating)

OPINION

DAVID WELLINGTON CHEW, Chief Justice.

This is an appeal from a conviction of theft of property valued at $100,000 or more but less than $200,000. We affirm.

Officer David Hernandez of the El Paso Police Department was assigned to a tactical unit in October of 2004 that was investigating burglaries of habitations and businesses, thefts of construction equipment, and all-terrain vehicles (ATVs). About a year earlier, the police had received a tip implicating the Moraleses and tactical units began surveilling homes at 222 Pasodale and 114 Gaspar.

On October 5, 2004, Officer Hernandez, driving by114 Gaspar, noticed two trailers loaded with heavy machinery equipment, and on a second drive-by saw a cement mixer, ladders, and an ATV. He called in for additional surveillance units. He was joined by Officer Jesus Hernandez and Officer Minjarez. Officer David Hernandez saw Mr. Jesus J. Morales securing and moving some property on a trailer with an unknown Hispanic male. The two men got into a Dodge Durango that was hitched to one of the trailers. The Durango drove off with a trailer loaded with ladders, gym equipment, cement mixer, and other items. Two police units followed the Durango to 222 Pasodale, where the pickup and trailer briefly parked in the yard. When the pickup and trailer left the Pasodale house surveillance was taken over by Sergeant De Avila in an unmarked car.

Officer Hernandez testified that he waited at 222 Pasodale. He saw Mr. Morales arrive with his wife. Then the officers saw a van arrive and the van driver talking to Mr. Morales. Mr. Morales and the driver then hitched what the officers thought to be a generator to the van. Officer Hernandez alerted other units that the van was leaving the premises with heavy equipment. Officer Hernandez followed. When the van failed to signal a turn, a marked police car was alerted to stop the van for the traffic offense. Sergeant Briones stopped the van on Loop 375. The "generator" was actually a welder. He obtained identifiers from the welder to see if it had been reported stolen. The driver of the van, Mr. Carmona, was arrested for possession of stolen property.

Sergeant Briones was then instructed to go to the 9000 block of Alameda, where he stopped Mr. Jesus Morales and his father. Sergeant Briones told them that Mr. Morales was being detained for investigation of a theft.

As he was placing Mr. Jesus Morales in the back of his car, he was approached by Magdalena Morales and Leonor Morales, Mr. Morales' sisters. The sisters asked about the stop, and Sergeant Briones explained to them why the stop occurred. The sisters asked about how their father was doing. Sergeant Briones then learned from Magdalena that she resides at 114 Gaspar. Magdalena told him that she was the owner and in control of the residence, and lived there with her father and mother. Sergeant Briones then asked for consent to search for possible stolen items at her residence, which she gave but only as to the outside of her house. She also stated that there was no stolen property there, and that whatever was outside was bought by her brother at swap meets for which she had receipts. Sergeant Briones filled out a consent to search form, which was witnessed by her sister and Officer Hernandez. Magdalena, Lorena, and their father drove to 114 Gaspar in their own car while the officers went in their cars. After arriving at the address, Sergeant Briones met with the other officers there, and advised them of the consent to search the outside of the property. Sergeant Briones asked Magdalena for the receipts she had mentioned, so they could take a look at them. The officers began searching the exterior, and found some stolen property at which point they paused the search, to acquire a search warrant for the entire property. A search warrant was obtained, and the inside and outside of the residence on Gaspar were searched. A search warrant was also executed at the Pasodale residence, and property was collected from inside and outside the house at this location as well.

Jesus J. Morales, Magdalena Morales, Baudelio Morales, Jesus Morales, Erick Morales, Leonor Morales, Sylvia Morales, Lorena Morales, Leonor Morales, Lorena Morales, and Oscar Miramontes were all indicted with one count of theft over $100,000 (aggregated) and one count of engaging in organized crime. At trial, the State presented more than thirty complaining witnesses who testified they had been a victim of theft, indicated what was taken, identified their property in a photo taken either at 114 Gaspar or 222 Pasodale, that they did not know who had stolen it, and none of the defendants had their consent to have the property at either location. The State also introduced evidence that Jesus J. Morales was a co-owner of 222 Pasodale.

After the State rested, the trial judge entered a directed verdict for all the defendants regarding the engaging in organized crime charge, and a directed verdict for the theft charge for all the defendants except Jesus J. Morales and Magdalena Morales.

During jury deliberations, the original trial judge was not present. However, the original trial judge would provide responses to the jury's questions, and the presiding judge would rule on any objections the attorneys made to the response to the jury. The jury submitted a question as to whether there was a plea bargain for the defendants who were no longer a part of the trial. The answer provided by the judge was "[y]ou are only to consider the evidence admitted in this case." The jury let the court know through the bailiff that they had reached a conclusion on one cause, but were deadlocked 10-2 on the other. The instruction provided by the original trial judge was "[y]ou must continue to deliberate with a view of reaching a unanimous verdict in both cases." The jury asked to recess for the day, and consider it anew in the morning when they would more likely have a fresh outlook. The court responded that they could take a fifteen minute break, but must remain together, and would then continue deliberations.

Appellant was found guilty of theft by the jury. She was sentenced to five years' confinement suspended for five years' community supervision. Jesus J. Morales was sentenced to eight years' confinement after being found guilty of theft.1 Appellant raises twenty-one issues on appeal.

In Issues One and Two, Appellant contends the evidence is legally and factually insufficient to establish beyond a reasonable doubt that the items were appropriated without the effective consent of the owners. In Issues Three and Four, Appellant contends that the evidence is legally and factually insufficient to establish beyond a reasonable doubt that the value of the stolen items was in the range of $100,000 to $200,000.

In assessing the legal sufficiency of the evidence to support a criminal conviction, under Jackson v. Virginia, we consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt. Rollerson v. State, 227 S.W.3d 718, 724 (Tex.Crim.App. 2007), citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979) and Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007). Evidence that rationally supports a verdict of guilt beyond a reasonable doubt, under the Jackson v. Virginia legal sufficiency standard, can still be factually insufficient. Rollerson, 227 S.W.3d at 724. Evidence is factually insufficient if the conviction is clearly wrong and manifestly unjust or the finding of guilt is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). Both legal and factual sufficiency standards require the reviewing court to consider all of the evidence. Rollerson, 227 S.W.3d at 724. A legal sufficiency review requires the court to give deference to the jury's credibility and weight determinations while a factual sufficiency review allows the court to substitute its judgment for the jury's on these questions, albeit to a very limited degree. Id., citing Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). The question we must consider under a factual sufficiency review is whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the fact finder's determination, or the proof of guilt, although adequate if taken alone is greatly outweighed by contrary proof. Johnson, 23 S.W.3d at 11.

A person commits the offense of theft if he unlawfully appropriates property with intent to deprive the owner of property. Tex.Penal Code Ann. § 31.03(a)(Vernon Supp. 2008). Unlawful appropriation of property occurs when:

(1) it is without the owner's effective consent;

(2) the property is stolen and the actor appropriates the property knowing it was stolen by another; or

(3) property in the custody of any law enforcement agency was explicitly represented by any law enforcement agent to the actor as being stolen and the actor appropriates the property believing it was stolen by another.

Tex.Penal Code Ann. § 31.03(b).

Theft is a second degree state felony if the value of the property stolen is $100,000 or more but less than $200,000. Tex.Penal Code Ann. § 31.03(e)(6). A person is criminally responsible as a party to an offense, if the offense is committed by his own conduct, by the conduct of another for which he is...

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