                                 NO. 07-04-0251-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL D

                                 FEBRUARY 16, 2005

                         ______________________________


                          JAMES GUTIERREZ, APPELLANT

                                          V.

                         THE STATE OF TEXAS, APPELLEE


                       _________________________________

              FROM THE 64TH DISTRICT COURT OF HALE COUNTY;

        NO. A15152-0309; HONORABLE ROBERT W. KINKAID, JR., JUDGE

                        _______________________________

Before QUINN and REAVIS and CAMPBELL, JJ.


                              MEMORANDUM OPINION


      Following a not guilty plea, appellant James Gutierrez was convicted by a jury of

theft and punishment was assessed by the trial court at two years confinement in a state
jail facility and a $2,500 fine. In presenting this appeal, counsel has filed an Anders1 brief

in support of a motion to withdraw. We grant counsel’s motion and affirm.


       In support of his motion to withdraw, counsel certifies he has diligently reviewed the

record and, in his opinion, the record reflects no reversible error upon which an appeal can

be predicated. Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493

(1967); Monroe v. State, 671 S.W.2d 583, 585 (Tex.App.--San Antonio 1984, no pet.).

Thus, he concludes the appeal is frivolous. In compliance with High v. State, 573 S.W.2d

807, 813 (Tex.Cr.App. 1978), counsel has candidly discussed why, under the controlling

authorities, there is no error in the court's judgment. Counsel has also shown that he sent

a copy of the brief to appellant and informed appellant that, in counsel's view, the appeal

is without merit. In addition, counsel has demonstrated that he notified appellant of his right

to review the record and file a pro se response if he desired to do so. Appellant did not file

a response. Neither did the State favor us with a brief.


       Luis Asebedo and appellant had been roommates in the past, and when appellant

needed a place to stay, he moved in with Luis and his live-in girlfriend, Avilda Sanchez.

Luis and Avilda made frequent trips to Kansas and left appellant in charge of their home.

Appellant was never given a house key and the door was left unlocked when he went out.




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           Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

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       Upon returning from a trip to Kansas, Luis noticed numerous items missing from his

home. He called the police, but also wanted to talk with appellant before filing a report.

When he found appellant at a relative’s house, he picked him up and they returned home.

According to Luis, after a confrontation, appellant admitted he took the items because he

was sick and needed the money and apologized. Luis called the police a second time to

file a report. Luis testified that appellant admitted taking the items in the presence of the

responding police officer. Avilda returned from Kansas a day later. She confronted

appellant about her jewelry box and its contents and testified that appellant apologized.


       Appellant was the only witness in his defense. He testified he was at a friend’s

house when he learned that Luis had returned from Kansas and was looking for him. He

called Luis and told him to pick him up at his sister-in-law’s house. He denied admitting to

Luis, Avilda, or the responding officer that he took the missing items. His sorrow, he

claimed, was because the items had been taken while he was in charge of the home. A

few days after the incident, he left for Oklahoma. Months later he learned through his

family, who was close to Luis, that he had been accused of the theft. He returned to Texas

and turned himself in to the sheriff’s office and was arrested.


       By the Anders brief, counsel does not advance any arguable grounds for appeal.

Appellant was indicted for theft of property of the value of $1,500 or more, but less than

$20,000. After proper voir dire, a jury was empaneled and appellant’s trial commenced.

The State presented testimony from Luis and Avilda and then rested. Appellant testified


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in his own defense, and during cross-examination, the State inquired into prior felony

convictions to which defense counsel objected as being prejudicial. After a hearing outside

the jury’s presence, the court concluded appellant could be impeached with a prior forgery

conviction but not a prior DWI. Defense counsel’s motion for mistrial on the ground that the

State violated a motion in limine was overruled and the jury was instructed to disregard the

State’s question. The denial of a motion for mistrial is reviewed for abuse of discretion.

Trevino v. State, 991 S.W.2d 849, 851 (Tex.Cr.App. 1999); Lusk v. State, 82 S.W.3d 57,

60 (Tex.App.–Amarillo 2002, pet. ref’d). Also, an instruction to disregard is sufficient to

cure error when evidence is placed before the jury in violation of a motion in limine. Barney

v. State, 698 S.W.2d 114, 125 (Tex.Cr.App. 1985). No reversible error is presented in the

trial court’s denial of appellant’s motion for mistrial.


       It is a fundamental rule of criminal law that one cannot be convicted of a crime

unless it is shown beyond a reasonable doubt that the defendant committed each element

of the alleged offense. U.S. Const. amend. XIV; Tex. Code Crim. Proc. Ann. art. 38.03

(Vernon Supp. 2004-05); Tex. Pen. Code Ann. § 2.01 (Vernon 2003). In conducting a legal

sufficiency review, we examine the verdict, after viewing the evidence in the light most

favorable to the prosecution, to determine whether any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Burden v. State, 55

S.W.3d 608, 612-13 (Tex.Cr.App. 2001). This standard is the same in both direct and

circumstantial evidence cases. Burden, 55 S.W.3d at 612-13. In measuring the sufficiency


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of the evidence to sustain a conviction, we measure the elements of the offense as defined

by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Cr.App.

1997). This is done by considering all the evidence that was before the jury—whether

proper or improper—so that we can make an assessment from the jury's perspective.

Miles v. State, 918 S.W.2d 511, 512 (Tex.Cr.App. 1996). As an appellate court, we may not

sit as a thirteenth juror, but must uphold the jury's verdict unless it is irrational or

unsupported by more than a “mere modicum” of evidence. Moreno v. State, 755 S.W.2d

866, 867 (Tex.Cr.App. 1988).


       After conducting a legal sufficiency review under Jackson, we may proceed with a

factual sufficiency review. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Cr.App. 1996). As

an appellate court, we view all the evidence without the prism of “in the light most favorable

to the prosecution” and set aside the verdict only if it is so contrary to the overwhelming

weight of the evidence as to be clearly wrong and unjust. Johnson v. State, 23 S.W.3d 1,

9 (Tex.Cr.App. 2000). It is the exclusive province of the jury to determine the credibility of

the witnesses and the weight to be given their testimony, and unless the record clearly

demonstrates a different result is appropriate, we must defer to the jury’s determination.

Id. at 8.


        Theft is the unlawful appropriation of property with the intent to deprive the owner

of the property. Tex. Pen. Code Ann. § 31.03(a). An appropriation is unlawful if it is

without the owner’s effective consent. § 31.03(b)(1). In circumstantial evidence cases it is



                                              5
not necessary that every fact point directly and independently to the accused's guilt; it is

enough if the conclusion is warranted by the combined and cumulative force of all the

incriminating circumstances. Johnson v. State, 871 S.W.2d 183, 186 (Tex.Cr.App. 1993),

cert. denied, 511 U.S. 1046, 114 S.Ct. 1579, 128 L.Ed.2d 222 (1994); Armstrong v. State,

958 S.W.2d 278, 283 (Tex.App.--Amarillo 1997, pet. ref'd).


       The evidence showed that appellant was the sole occupant of the home while Luis

and Avilda were in Kansas. According to their testimony, when they left for Kansas all the

items that were later missing had been in the home. There was no evidence of a break-in.

Luis testified that a DVD player, television, video game player, VCR, movies, boots,

sandals, clothing, and Avilda’s metal jewelry box and contents were missing. He offered

estimates of the value of the items, except for the jewelry box and its contents with which

Avilda was more familiar. She testified that three years prior to the incident her jewelry had

been appraised at $5,000 and that she had probably added another $4,000 since then.


       Although neither victim could confirm that appellant possessed the stolen items, Luis

testified that appellant was wearing a pair of his pants and his shirt. Appellant, however,

claimed that he took Luis’s pants and shirt because when he went to the house to pack and

move out, his personal belongings were gone. The jury, as trier of fact, may believe all,

some, or none of any witness’s testimony.          Sharp v. State, 707 S.W.2d 611, 614

(Tex.Cr.App. 1986). A jury’s decision is not manifestly unjust merely because it resolved




                                              6
conflicting views of evidence in favor of the State, Cain v. State, 958 S.W.2d 404, 410

(Tex.Cr.App. 1997).


       In rebuttal to appellant’s testimony, the responding officer testified that when he

returned to Luis’s home a second time, Luis and appellant were talking in the front yard.

He heard appellant admit to Luis that he had taken the items to buy crack, but did not arrest

him at the time because he did not have a warrant. We conclude the evidence was legally

and factually sufficient to support appellant’s conviction.


       According to the record, appellant was afforded effective assistance of counsel. See

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See also

Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Cr.App. 1986). Counsel filed numerous pre-

trial motions, conducted proper voir dire, lodged objections to the State’s questions,

vigorously cross-examined witnesses, and moved for mistrial. Given the presumption that

counsel’s conduct falls within the wide range of reasonable and professional

representation, no reversible error is demonstrated. Bone v. State, 77 S.W.3d 828, 833

(Tex.Cr.App. 2002); see also Mallett v. State, 65 S.W.3d 59, 63 (Tex.Cr.App. 2001).


       Appellant was convicted of a state jail felony and sentenced to two years

confinement and a $2,500 fine. See Tex. Pen. Code Ann. § 31.03(a), (b) & (e)(4)(A).

Punishment for a state jail felony ranges from 180 days to two years and a fine not to

exceed $10,000. § 12.35(a) & (b). A trial court is vested with a great degree of discretion

in imposing an appropriate sentence. Jackson v. State, 680 S.W.2d 809, 814 (Tex.Cr.App.

                                              7
1984). If the punishment assessed is within the statutory range, then it should not be

disturbed on appeal.       Nunez v. State, 565 S.W.2d 536, 538 (Tex.Cr.App. 1978).

Additionally, no objection was made when sentence was pronounced by the trial court.

Hardeman v. State, 1 S.W.3d 689, 690-91 (Tex.Cr.App. 1999).


       After our independent examination of the entire record, we conclude there are no

arguable grounds which might support this appeal. See Penson v. Ohio, 488 U.S. 75, 109

S.Ct. 346, 102 L.Ed.2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Cr.App.

1991). We agree with counsel that the appeal is frivolous. Currie v. State, 516 S.W.2d 684

(Tex.Cr.App. 1974); Lacy v. State, 477 S.W.2d 577, 578 (Tex.Cr.App. 1972).


       Accordingly, counsel's motion to withdraw is hereby granted and the judgment of the

trial court is affirmed.


                                         Don H. Reavis
                                           Justice

Do not publish.




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