Rush v. State
| Decision Date | 09 March 2023 |
| Docket Number | 02-21-00213-CR |
| Parties | Darren James Rush, Appellant v. The State of Texas |
| Court | Texas Court of Appeals |
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 30th District Court Wichita County, Texas Trial Court No. DC30-CR2019-0363
Before Sudderth, C.J.; Kerr and Birdwell, JJ.
Elizabeth Kerr Justice Appellant Darren James Rush challenges his conviction and resulting ten-year sentence for stealing a trailer and three trucks valued between $30,000 and $150,000, a third-degree-felony offense. See Tex. Penal Code Ann. § 31.03(a) (e)(5). Although we agree with Rush that the trial court should have included the Texas Penal Code's definition of "value" in the jury charge, he was not egregiously harmed by its omission, nor did the evidence fail to prove that essential element. See id. § 31.08. And although we also agree that it's hard to see how trial counsel could justify having filed a new-trial motion that was obviously cut and pasted from a different case with wholly different facts, Rush has not shown the egregious harm needed to succeed on his ineffective-assistance issue. We will thus affirm.
In the early morning hours of May 2, 2018, a Wichita County manufacturing facility-Falls Concrete-was relieved of three of its work trucks and a trailer, as employee Larry Clapp discovered upon arriving for work between 4:00 and 5:00 a.m. that morning. A motion-activated security camera had captured video shortly after 1:00 a.m. of several individuals driving off with a 2014 Toyota Tacoma pickup, a 2016 GMC Sierra pickup, and a 2003 Chevrolet Silverado pickup.[1] The trailer was attached to the Sierra.
Clapp did not recognize anyone in the video, but through GPS tracking devices on the two newer pickups, the trucks' whereabouts were quickly pinpointed as being in the Fort Worth area. After locating the Tacoma parked at an apartment complex, Fort Worth law enforcement surveilled the spot to see if anyone showed up. FWPD Officer Tom Gierling, who was working the case, then learned of the Sierra's location, and one of his teammates went to surveil that area as well. And although the trailer had been separated from the Sierra at some point, Officer Gierling was able to find it abandoned at a third location and surveilled it too, "[t]ry[ing] to catch anybody that had their hands on it, had any involvement in it."
Officer Gierling returned to the trailer's location three or four times throughout the day (May 2), finally deciding that because no activity had occurred around the two pickups or the trailer, they should just be removed from the scene(s). When Officer Gierling went to recover the trailer at around 7:00 p.m., he serendipitously "rolled up on several individuals, and there was a dark-colored SUV backed up to it, hooked up to the trailer."[2]
Of the five people there, one immediately ran off but was soon found hiding behind a trash can: Darren Rush. Rush had sold the trailer that day to one of the other people on scene for $500 or so. After being arrested, Rush directed Officer Gierling to the otherwise untrackable 2003 Silverado.
A grand jury indicted Rush for theft of property having a value greater than $30,000 but less than $150,000. See id. § 31.03(a), (e)(5). A jury convicted Rush of that charge, and the trial court imposed a ten-year prison sentence. Rush appealed.
On appeal, Rush asserts the following, in five issues:
1. The trial court erred in allowing Clapp to authenticate, and thus in admitting into evidence, a CPA-prepared document-State's Exhibit 3-that was the sole evidence of value.[3]
2. The trial court erred by not including the statutory definition of "value" in the jury charge, an omission that was egregiously harmful.
3. Considering the evidence in light of the hypothetically correct jury charge, which would have defined "value" as "fair market value," the evidence was insufficient to support the verdict.
4. Trial counsel was constitutionally ineffective by filing a new-trial motion that was obviously cribbed from an altogether different case and mentioned facts and legal arguments having nothing to do with Rush's case.
5. Trial counsel was constitutionally ineffective by not objecting to State's Exhibit 3 on Confrontation Clause grounds.[4]
We must review "all alleged jury-charge error . . . regardless of preservation in the trial court." Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). In reviewing a jury charge, we first determine whether error occurred; if not, our analysis ends. Id.
Unpreserved charge error warrants reversal only when the error resulted in egregious harm. Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g); see Tex. Code Crim. Proc. Ann. art. 36.19. The appropriate inquiry for egregious harm is fact- and casespecific. Gelinas v. State, 398 S.W.3d 703, 710 (Tex. Crim. App. 2013); Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011).
In making an egregious-harm determination, we must consider "the actual degree of harm . . . in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel[,] and any other relevant information revealed by the record of the trial as a whole." Almanza, 686 S.W.2d at 171. See generally Gelinas, 398 S.W.3d at 708- 10 (applying Almanza). Errors that result in egregious harm are those "that affect the very basis of the case, deprive the defendant of a valuable right, vitally affect the defensive theory, or make a case for conviction clearly and significantly more persuasive." Taylor, 332 S.W.3d at 490 (citing Almanza, 686 S.W.2d at 172). The purpose of this review is to illuminate the actual, not just theoretical, harm to the accused. Almanza, 686 S.W.2d at 174. Egregious harm is a "high and difficult standard" to meet. Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013).
In our evidentiary-sufficiency review, we view all the evidence in the light most favorable to the verdict to determine whether any rational factfinder could have found the crime's essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017).
To determine whether the State has met its Jackson burden to prove a defendant's guilt beyond a reasonable doubt, we compare the crime's elements as defined by the hypothetically correct jury charge to the evidence adduced at trial. See Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016); see also Febus v. State, 542 S.W.3d 568, 572 (Tex. Crim. App. 2018) (). Such a charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Jenkins, 493 S.W.3d at 599. The "law as authorized by the indictment" means the statutory elements of the charged offense as modified by the factual details and legal theories contained in the charging instrument. See id.; see also Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014) ("When the State pleads a specific element of a penal offense that has statutory alternatives for that element, the sufficiency of the evidence will be measured by the element that was actually pleaded, and not any alternative statutory elements.").
In this case the charge given to the jury, the hypothetically correct charge, and the evidence on value warrant discussing Rush's second and third issues together. Cf. Phillips v. State, No. 02-16-00049-CR, 2016 WL 6519118, at *2 (Tex. App.-Fort Worth Nov. 3, 2016, no pet.) (mem. op., not designated for publication) (addressing interrelated issues together). The result, on these facts and under applicable law, is that we must affirm.
Penal Code Section 31.08(a) defines "value"-an essential element of a theft charge, as it drives the applicable offense level-as "the fair market value of the property . . . at the time and place of the offense," or, "if the fair market value of the property cannot be ascertained, the cost of replacing the property within a reasonable time after the theft." Tex. Penal Code Ann. § 31.08(a). The Penal Code does not define fair market value, but it has long been judicially recognized to mean "the amount the property would sell for in cash if offered for sale by a willing seller to a willing buyer, given a reasonable time for selling it." Mangum v. State, No. 02-15-00063-CR, 2016 WL 1072134, at *4 (Tex. App.-Fort Worth Mar. 17, 2016, no pet.) (mem. op., not designated for publication) (citing Keeton v. State, 803 S.W.2d 304, 305 (Tex. Crim. App. 1991)); see also Keeton, 803 S.W.2d at 306-07 (Clinton, J., concurring).
The State concedes that the trial court should have given the jury this definition. But no harm, no foul, the State urges, pointing to the common understanding of "value" generally as the equivalent of "fair market value" when an owner[5] testifies to it, and to cases in which omitting the definition of fair market value was not egregiously harmful. We start with those cases.
The first is Landrum v. State, 590 S.W.3d 640 (Tex App.-Waco 2019, pet. ref'd). There, the owner "testified as to the fair market value of the property stolen by estimating the purchase price for each item[,] as he was permitted to do." Id....
To continue reading
Request your trial