                                                                                                ACCEPTED
                                                                                           03-14-00595-CR
                                                                                                   4575393
                                                                                 THIRD COURT OF APPEALS
                                                                                            AUSTIN, TEXAS
                                                                                     3/20/2015 10:01:01 AM
                                                                                          JEFFREY D. KYLE
                                                                                                     CLERK

          C ASE N UMBER 03-14-00595-CR
                                                               FILED IN
                                                        3rd COURT OF APPEALS
A NDREW G ARRAWAY                                   C OURT AUSTIN,
                                                            OF A PPEAL
                                                                     TEXASS
                                                        3/23/2015 1:35:00 PM
              Appellant
                                                          JEFFREY D. KYLE
VS .                                        T HIRD D ISTRICT OF Clerk
                                                                   T EXAS

T HE S TATE   OF   T EXAS                                    AUSTIN , T EXAS


         On appeal from the 274th Judicial District Court
                            Hays County, Texas
                       Cause Number CR-11-0925



 A PPELLANT ’ S A MENDED B RIEF

                     Oral argument is not requested
               unless requested by the State or this Court




                                     M R . E LLIC S AHUALLA
                                     Counsel for Appellant
                                     State Bar Number 24057365
                                     600 W. 13th St.       Austin, Texas 78701
                                     ph (512) 921-8247     fax (512) 451-5882
                                     email ellic@sahuallalaw.com
             I DENTITY OF PARTIES & C OUNSEL
Tr i a l Pa r t i e s
T HE S TATE OF T EXAS                       MR. ANDREW GARRAWAY
                                            Defendant

Tr i a l C o u n s e l
M R . B ENJAMIN M OORE                      M R . D AVID W ATTS
Counsel for the State                       Counsel for Defendant
State Bar Number 24042522                   State Bar Number 20978750
712 S. Stagecoach Trail, Ste. 2057          174 S. Guadalupe St., Ste. 101
San Marcos, Texas 78666                     San Marcos, Texas 78666
ph (512) 393-7600    fax (512) 393-7619     ph (512) 395-8538 fax (512) 393-8539
email benjamin.moore@co.hays.tx.us          email wattslaw@centurytel.net


A p p e l l a t e Pa r t i e s
MR. ANDREW GARRAWAY                         T HE S TATE OF T EXAS
Appellant

Appellate Counsel
M R . E LLIC S AHUALLA                      T HE H ONORABLE W ES M AU
Counsel for Appellant                       Counsel for the State
State Bar Number 24057365                   State Bar Number 00784539
600 W. 13th St.       Austin, Texas 78701   712 S. Stagecoach Trail, Ste. 2057
ph (512) 921-8247     fax (512) 451-5882    San Marcos, Texas 78666
email ellic@sahuallalaw.com                 ph (512) 393-7600 fax (512) 393-7619
                                            email wes.mau@co.hays.tx.us
                     T ABLE OF C ONTENTS
Index of Authorities                                      1
      Cases                                               1
      Statutes                                            3

Statement of the Case                                     4
Statement Regarding Oral Argument                         5
Issues Presented                                          6

Statement of Facts                                        8
Summary of the Argument                                  20
Argument                                                 22

      Issue One—Theft as a Lesser-included Offense       22
      Issue Two—Elements in the Theft Charge             25
      Issue Three— LeadsOnline Exhibits                  29

      Issue Four—Kajileh’s Effective Consent Testimony   35
      Issue Five—Jarman’s Ownership Testimony            38
      Issue Six— Legal-sufficiency of the Evidence       40

Prayer                                                   45
Certificate of Compliance                                46
Certificate of Service                                   47
                         I NDEX OF AUTHORITIES
Cases

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) .............................. 24, 27
Beasley v. State, 426 S.W.3d 140 (Tex. App.—Houston [14th Dist.] 2012, no pet.)......... 24
Benavidez v. State, 323 S.W.3d 179 (Tex. Crim. App. 2010).............................. 25, 28

Bowen v. State, 374 S.W.3d 427 (Tex. Crim. App. 2012) ......................................... 44
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ......................34, 37, 39, 40
Byrd v. State, 336 S.W.3d 242 (Tex. Crim. App. 2011)................................ 27, 41, 42

Cole v. State, 839 S.W.2d 798 (Tex. Crim. App. 1990) ............................................ 30
Coronado v. State, 351 S.W.3d 315 (Tex. Crim. App. 2011) ..................30, 31, 36, 39
Davis v. State, 699 S.W.2d 955 (Tex. App.—Fort Worth 1985, no writ) .............. 30

Dean v. State, 938 S.W.2d 764 (Tex. App.—Houston [14th Dist.] 1997, no writ) .......... 23
Dinkins v. State, 894 S.W.2d 330 (Tex. Crim. App. 1995) ...................................... 25
Evans v. State, 606 S.W.2d 880 (Tex. Crim. App. [Panel Op.] 1980)............... 26, 27

Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007)...................................... 22, 23
Hill v. State, 625 S.W.2d 803 (Tex. App.—Houston [14th Dist.] 1981, no writ) ...... 26, 27
Holz v. State, 320 S.W.3d 344 (Tex. Crim. App. 2010) ........................................... 43

Jackson v. Virginia, 443 U.S. 307 (1979).................................................................... 40
Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1998) .....................34, 35, 37, 40
Kent v. State, 447 S.W.3d 408 (Tex. App.—Houston [14th Dist.] 2014, pet. granted) ... 27, 28

Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) ......................................... 41
Mann v. State, 964 S.W.2d 639 (Tex. Crim. App. 1998) ............................. 24, 25, 27
Martinez v. State, 327 S.W.3d 727 (Tex. Crim. App. 2010) ...................33, 34, 37, 39

                                        Appellant’s Brief, 03-14-00595-CR
                                                 Page 1 of 47
Michigan v. Bryant, 131 S. Ct. 1143 (2011) .............................................30, 31, 36, 39
Middleton v. State, 187 S.W.3d 134 (Tex. App.—Texarkana 2005, no pet.) .......... 23

Milton v. State, 652 S.W.2d 958 (Tex. Crim. App. 1983) .................................. 26, 27
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) ................................ 31
Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002) ........................34, 37, 39, 40
Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005) ............................................ 28
Peoples v. State, 566 S.W.2d 640 (Tex. Crim. App. [Panel Op.] 1978) ................... 23
Pointer v. Texas, 380 U.S. 400 (1965)............................................................. 30, 36, 39
Powell v. State, 189 S.W.3d 285 (Tex. Crim.. App. 2006) ........................................ 31
Rabb v. State, 434 S.W.3d 613 (Tex. Crim. App. 2014)........................................... 43
Sanchezv.State,182S.W.3d34(Tex.App.—SanAntonio2005),aff’d,209S.W.3d117(Tex.Crim.App.2006). 26

Sandoval v. State, 409 S.W.3d 259 (Tex. App.—Austin 2013, no pet.) ...... 33, 37, 39
Schmuck v. U.S., 489 U.S. 705 (1989) ....................................................................... 24
Ex parte Sewell, 606 S.W.2d 924 (Tex. Crim. App. 1980)....................................... 23

Steward v. State, 830 S.W.2d 771 (Tex. App.—Houston [14th Dist.] 1992, no writ) ....... 23
Stuhler v. State, 218 S.W.3d 706 (Tex. Crim. App. 2007) ........................................ 28
Sullivan v. State, 701 S.W.2d 905 (Tex. Crim. App. 1986) ...................................... 43
Taylor v. State, 332 S.W.3d 483 (Tex. Crim. App. 2011) ......................................... 24
Temple v. State, 390 S.W.3d 341 (Tex. Crim. App. 2013) ........................................ 40
Thomason v. State, 892 S.W.2d 8 (Tex. Crim. App. 1994) ....................................... 23

Thompson v. State, 574 S.W.2d 103 (Tex. Crim. App. [Panel Op.] 1978)......... 25, 26
Thornton v. State, 425 S.W.3d 289 (Tex. Crim. App. 2014)..................................... 44
Williams v. State, 958 S.W.2d 186 (Tex. Crim. App. 1997)..................................... 32

                                        Appellant’s Brief, 03-14-00595-CR
                                                 Page 2 of 47
Wirth v. State, 361 S.W.3d 694 (Tex. Crim. App. 2012) ......................................... 26
Wood v. State, 632 S.W.2d 734 (Tex. Crim. App. 1982) .......................................... 23

Woodard v. State, 322 S.W.3d 648 (Tex. Crim. App. 2010) ............................... 24, 25
Woods v. State, 653 S.W.2d 1 (Tex. Crim. App. 1982) ............................................. 26
Young v. State, 621 S.W.2d 779 (Tex. Crim. App. [Panel Op.] 1981) ............... 26, 27



S t a t u t e s & Ru l e s

T EX . C ODE C RIM . PROC. A NN. art. 36.19 (West 2006) ..................................... 24
T EX . C ODE C RIM . PROC. A NN. art. 37.09 (1) (West 2006) ............................... 23
T EX . C ODE C RIM . PROC. A NN. art. 37.14 (West 2006) ............................... 25, 28

T EX . C ONST. art. I, § 10 .......................................................................................... 25
T EX . P EN. C ODE A NN. § 30.02 (West 2011) ....................................................... 23
T EX . P EN. C ODE A NN. § 31.03 (West 2011) ........................................... 23, 26, 42

T EX . P EN. C ODE A NN. § 31.09 (West 2011) ....................................................... 42
T EX . R. A PP. P. 33.1 .................................................................................... 30, 36, 39
T EX . R. A PP. P. 44.2 .................................................................................... 35, 37, 39

T EX . R. E VID. 401 ................................................................................................... 32
T EX . R. E VID. 403 ................................................................................................... 32
T EX . R. E VID. 801 ....................................................................................... 30, 36, 38

T EX . R. E VID. 802 ............................................................................................. 30, 36
T EX . R. E VID. 803 ............................................................................................. 30, 31
U.S. C ONST. amend. V............................................................................................. 25

U.S. C ONST. amend. VI ............................................................................... 31, 37, 39
                                            Appellant’s Brief, 03-14-00595-CR
                                                      Page 3 of 47
                  S TATEMENT OF THE C ASE
       The appellant, Andrew Elon Garraway (“Garraway”), was indicted for

twenty counts of burglary of a habitation. 3 R.R. at 15–22. The case proceeded
to trial (with evidence beginning on April 15, 2014), and the State ultimately
abandoned two counts. 7 R.R. at 4. The trial court dismissed those counts and

submitted the remaining eighteen to the jury along with a lesser-included offense
of theft where the value of the property stolen was $1,500 or more but less than
$20,000, a state jail felony. 7 R.R. at 6–25.

       On April 21, 2014, the jury acquitted Garraway of all burglary counts but
convicted him of theft. 7 R.R. at 67. At a later hearing on June 19, 2014, the trial
court sentenced Garraway to two years in state jail and a $1,500 fine but probated
the sentence for five years and placed him on community supervision. 8 R.R. at
4. That conviction is the basis of this appeal.




                               Appellant’s Brief, 03-14-00595-CR
                                        Page 4 of 47
 S TATEMENT R EGARDING O RAL A RGUMENT
      The appellant is not requesting oral argument because the issues presented

in this appeal are not novel and the record is straightforward. However, if the
State requests oral argument or this court believes it would help resolve this
matter, the appellant would like an opportunity to appear and argue.




                            Appellant’s Brief, 03-14-00595-CR
                                     Page 5 of 47
                               I SSUES P RESENTED
         Garraway presents six principal issues on appeal:

I s s u e O n e T h e f t a s a L e s s e r- i n c l u d e d O f f e n s e

Wa s t h e f t o f p r o p e r t y va l u e d a t $ 1 , 5 0 0 ≤ $ 2 0 , 0 0 0 a l e s s e r-

i n c l u d e d o f f e n s e o f b u r g l a r y a s - i n di c t e d i n t h i s c a s e, a n d i f n o t ,
wa s G a r r away e g r e g i o u s l y h a r m e d by i t s s u b m i s s i o n t o t h e j u r y ?

I s s u e Two E l e m e n t s i n t h e T h e f t C h a r g e

D i d t h e t r i a l c o u r t ’s ch a r g e o n t h e f t o f p r o p e r t y va l u e d a t
$ 1 , 5 0 0 ≤ $ 2 0 , 0 0 0 r e q u i r e t h e j u r y t o u n a n i m o u s l y f in d a l l
e l e m e n t s o f t h e o f f e n s e b e yo n d a r e a s o n a b l e d o u b t , a n d i f n o t ,
wa s G a r r away e g r e g i o u s l y h a r m e d by t h a t e r r o r ?

Issue Three LeadsOnline Exhibits

D i d t h e t r i a l c o u r t a b u s e i t s d i s c r e t i o n by a d m i t t i n g S t a t e ’s
E x h i b i t s 3 6 , 3 7 , & 4 1 ove r G a r r away ’s o b j e c t i o n s t o h e a r s ay,
c o n f r o n t a t i o n , f o u n d a t i o n , r e l e va n c e, a n d p r e j u d i c e, a n d i f s o,
d i d t h a t h a r m a f f e c t G a r r away ’s s u b s t a n t i a l r i g h t s ?

I s s u e Fo u r K a j i l e h ’s E f f e c t ive C o n s e n t Te s t i m o n y

D i d t h e t r i a l c o u r t a b u s e i t s d i s c r e t i o n by a d m i t t i n g t e s t i m o n y
f r o m Ju s t i n K a j i l e h a b o u t e f f e c t ive c o n s e n t ove r G a r r away ’s

o b j e c t i o n s t o h e a r s ay a n d c o n f r o n t a t i o n , a n d i f s o, d i d t h a t
h a r m a f f e c t G a r r away ’s s u b s t a n t i a l r i g h t s ?


                                       Appellant’s Brief, 03-14-00595-CR
                                                Page 6 of 47
I s s u e F ive Ja r m a n’s O w n e r s h i p Te s t i m o n y

D i d t h e t r i a l c o u r t a b u s e i t s d i s c r e t i o n by a d m i t t i n g t e s t i m o n y
f r o m D e t e c t ive M a r k Ja r m a n a b o u t ow n e r s h i p ove r G a r r away ’s
o b j e c t i o n s t o h e a r s ay a n d c o n f r o n t a t i o n , a n d i f s o, d i d t h a t

h a r m a f f e c t G a r r away ’s s u b s t a n t i a l r i g h t s ?

Issue Six Legal-sufficiency of the Evidence

Wa s t h e e v i d e n c e l e g a l l y s u f f i c i e n t t o c o nv i c t G a r raway o f t h e f t
o f p r o p e r t y va l u e d a t $ 1 , 5 0 0 ≤ $ 2 0 , 0 0 0 ?




                                      Appellant’s Brief, 03-14-00595-CR
                                               Page 7 of 47
                     S TATEMENT OF FACTS
      The indictment in this case charged Garraway with twenty counts of

burglary of a habitation. 3 R.R. at 15–22. Each count alleged the date, the county,
the name of the relevant owner, a lack of consent, and that the defendant entered
each habitation “with intent to commit theft, did attempt to commit theft, and

did commit theft.” Id. However, no count described the stolen property or its
value and there was no allegation that the burglaries or thefts were committed as
part of one scheme or continuing course of conduct. Id.

      At trial, five of the twenty property owners (“owners”) named in the
indictment testified. Amy Zuniga testified that on February 22, 2011, she
discovered her television, laptop, and saxophone missing from her Hays County
apartment, which was part of a complex called University Heights. 4 R.R. at 39.
She later recovered the saxophone from the police. 4 R.R. at 40–41. On redirect,
she added that the person who went into her apartment did not have her
permission and that she did not know Garraway. 4 R.R. at 44.

      Andrew Davila said that on March 4, 2011, he was contacted by his
roommate about the burglary of their apartment, also located in University
Heights. 4 R.R. at 47. He found that his Xbox, controllers, and games were gone,

along with his roommate’s calculator and possibly a subwoofer from his
entertainment system. 4 R.R. at 47–48. The Xbox and calculator were later
returned by the police. 4 R.R. at 49. Davila did not give anyone permission to

enter his apartment and did not know Garraway. 4 R.R. at 50.


                             Appellant’s Brief, 03-14-00595-CR
                                      Page 8 of 47
      Kaitlyn Cunningham told the jury that on March 24, 2011, she noticed
credit cards and cash missing from her purse, which was in the living room of

her apartment at the Outpost, a complex in Hays County. 4 R.R. at 55. After
checking her statements online, Cunningham discovered that her cards had been
used at several stores without her permission. 4 R.R. at 56. She did not give
anyone permission to use her cards or enter her apartment, and she did not know
Garraway. 4 R.R. at 57.

      April Kontak stated that on March 29, 2011, she awoke to find her
computer and credit card missing from her apartment at the Outpost. 4 R.R. at
69–70. She later recovered the computer from the police. 4 R.R. at 71. The credit
card, meanwhile, had been used at a number of stores without her permission. 4
R.R. at 72. She did not know Garraway and did not give him permission to use
her cards, take her property, or enter her apartment. 4 R.R. at 72.

      Finally, Caitlyn Smith testified that on April 5, 2011, cash and some
electronics turned up missing at her apartment, located at the Grove in Hays
County. 4 R.R. at 75–76. Among the electronics was an “SLR camera . . . a Casio
or a Canon . . . like an 800-dollar camera.” 4 R.R. at 76. Smith did not give anyone
permission to enter her apartment or take her property. 4 R.R. at 76–77. She later
got the SLR camera and some other property back from the police. 4 R.R. at 77.

      Justin Kajileh (“Kajileh”), an accomplice witness, was the next person to

take the stand. He identified Garraway as an old friend and classmate from
elementary school all the way through college at Texas State University. 4 R.R. at

                              Appellant’s Brief, 03-14-00595-CR
                                       Page 9 of 47
81. While attending the college, Garraway asked Kajileh to lend him money to
get his car out of the shop, but since Kajileh had none, the two turned to

burglary. 4 R.R. at 82–83. They targeted apartment complexes in Hays County in
the hours before dawn. 4 R.R. at 83–84. They would look for unlocked doors,
which one person would enter to take things—mostly cash or electronics—while
the other stood watch just outside. 4 R.R. at 84–85.

      On the first night, they began in the same complex Kajileh lived in:
University Heights in Hays County. 4 R.R. at 83. Among other things, they took
a saxophone, the only one they ever stole during their string of burglaries. 4 R.R.
at 85. Kajileh and Garraway then visited several pawnshops in the Austin area
and sold what they had taken, earning around $1,500. 4 R.R. at 87–88.

      When asked whether he had gone to the Outpost or the Grove (among
other complexes), Kajileh testified that he had gone to “the majority” of them.
4 R.R. at 89. Later, he stated that he had committed burglaries at both complexes,
but not that Garraway was involved. 4 R.R. at 93 & 99. For other complexes,
Kajileh said he “possibly” committed the burglaries, 4 R.R. at 99, but claimed he
never committed burglaries alone—Garraway was always there. 4 R.R. at 100.

      Kajileh was asked whether each owner named in the indictment against
Garraway had given Garraway permission to enter the residence or take any
property, and each time, Kajileh responded that they had not. 4 R.R. at 90–98.

Defense Counsel objected several times “on hearsay and confrontation clause”
but was overruled each time. 4 R.R. at 91–94.

                             Appellant’s Brief, 03-14-00595-CR
                                     Page 10 of 47
       The burglaries continued for several months, and Kajileh described the
evolution of their methods and additional pawn shops he and Garraway went to

in both Austin and San Antonio. 4 R.R. at 100–108. The scheme came to a head
when Garraway was arrested and Kajileh was called in by the police for
questioning, 4 R.R. at 108, which prompted Kajileh to confess and turn over
some of the stolen property to the police. 4 R.R. at 109–10. He also told police
how he and Garraway would use stolen credit cards to purchase food, gas, and
gift cards at different retailers. 4 R.R. at 111–15.

       Kajileh confirmed that he and Garraway went to the EZ Pawn, Cash
Pawn, and Cash America Pawn pawnshops in Austin on February 22, 2011 by
authenticating video and photographic evidence of the two at those locations. 4
R.R. at 118–28. There, the two sold a saxophone and an Xbox. 4 R.R. at 125–26.
On February 25, 2011, the two were captured on video at two different EZ Pawn
locations and then again at Action Pawn in Austin, where they sold an Xbox and
a PlayStation. 4 R.R. at 128–35. On March 5, 2011 and again on March 31, 2011,
Garraway and Kajileh were recorded at an Action Pawn pawnshop in San

Antonio. 4 R.R. at 135–37 & 147–49. Kajileh went on to authenticate a video of
Garraway and him using a credit card at a Target store in Kyle on March 24,
2011, 4 R.R. at 143, and numerous other videos and images of the pair at various

pawnshops in the Austin and San Antonio area, 4 R.R. at 143–66. There were
also videos of Kajileh at pawnshops alone on different dates selling what he said
was property from the burglaries he and Garraway committed. 4 R.R. at 138–43.


                               Appellant’s Brief, 03-14-00595-CR
                                       Page 11 of 47
      He admitted to having signed a contract to testify in exchange for a
favorable plea agreement, 4 R.R. at 166–73, and on cross-examination, Kajileh

clarified that although he had never committed a burglary alone, he was not
present for all the burglaries alleged against Garraway; he claimed that he had
participated in perhaps half of them. 4 R.R. at 180. He responded “I don’t know”
each time when asked whether he had participated in the burglary described by
each count, and summarized it by saying “I don’t know if I committed any of
the burglaries on this piece of paper. I don’t know.” 4 R.R. at 185–87.

      Kajileh’s testimony was briefly interrupted for the State to call Buda police
officer Brandon Hale, who testified that he investigated cases of credit card
abuse at a Wal-Mart and a gas station around March 24, 2011. 4 R.R. at 190. After
consulting with other law enforcement agencies, he determined that the victims
were Kaitlyn Cunningham and April Kontak, and he connected his cases with
burglaries being investigated by Mark Jarman, a San Marcos detective. 4 R.R. at
191. Diana Talamantes, a detective with the Kyle Police Department, testified
that she similarly connected a credit card abuse case that affected Kaitlyn

Cunningham to a burglary being investigated by Detective Jarman. 4 R.R. at 196.

      Recalled to the stand, Kajileh testified to an additional video and
photographs showing Garraway and him at a Wal-Mart store using unspecified
stolen credit cards. 5 R.R. at 38–47. Further cross-examination reiterated that
Kajileh could not say whether any of the burglaries alleged against Garraway

were the ones he and Garraway had participated in together. 5 R.R. at 54–60.


                             Appellant’s Brief, 03-14-00595-CR
                                     Page 12 of 47
      The State’s next witnesses were employees of some of the pawnshops at
which Garraway and Kajileh sold were seen selling property.

      David Sears testified that he worked at Cash Pawn and authenticated a
pawn slip (State’s Exhibit 32) showing that on February 22, 2011, Garraway

pawned an Xbox 360 and its controllers as well as a saxophone. 5 R.R. at 61–66.

      Michael Medina said that he worked at EZ Pawn and brought two pawn
slips (State’s Exhibits 31 and 33) showing that on February 25, 2011, Garraway
pawned Blu-ray movies, videogames, PlayStation and Xbox game consoles,
controllers, and a calculator, and on April 8, 2011, another Xbox, several
controllers, and another calculator. 5 R.R. at 67–72.

      Frank McCray stated that he worked at Action Pawn and produced a pawn

slip (State’s Exhibit 34) showing that on February 25, 2011, Garraway pawned
yet another Microsoft Xbox 360. 5 R.R. at 73–76.

      Richard Barker, an employee of another Action Pawn, sponsored a pawn
slip (State’s Exhibit 35) showing that on March 31, 2011, Kajileh pawned an
Xbox, accessories, and games. 5 R.R. at 77–80.

      Alan Shaw worked at Cash America Pawn, and his pawn slip (State’s
Exhibit 30) showed that on April 4, 2011, Garraway pawned a PlayStation 3. 5

R.R. at 81–85.




                             Appellant’s Brief, 03-14-00595-CR
                                     Page 13 of 47
      Denton Fox testified that he worked for Wal-Mart and authenticated a
video (State’s Exhibit 28) corroborating part of Kajileh’s testimony about he and

Garraway using a stolen credit card there. 5 R.R. at 86–88.

      The State then called Adrian Marin (“Marin”), a San Marcos Police

Department detective. He testified that after getting “hits” on LeadsOnline, a
law enforcement pawn database, he retrieved suspect property from various
pawnshops and drafted a search warrant for Garraway. 5 R.R. at 96–105.
However, after objection to hearsay by the defense, the court would not let him
testify to who owned the property. 5 R.R. at 100 & 103. Marin then executed the
warrant and retrieved a variety of suspect property from Garraway’s residence
ranging from electronics to purses to combs. 5 R.R. at 107. Marin then completed
a similar process with Kajileh and other suspects. 5 R.R. at 112–14.

      During Marin’s testimony, the State asked him to authenticate State’s
Exhibit 36, a set of LeadsOnline reports on Garraway and Kajileh. 5 R.R. at 119.
Marin testified that the records were entered by various pawnshop employees for
law enforcement use, that it was in the regular course of business for some
pawnshops to do so, but that some may maintain records in other ways (“I’m not
sure. I’m not sure if they still do that or—I know that if they do LeadsOnline,

that they are not required to hand-deliver anything over.”). 5 R.R. at 119–20. He
also affirmed that sometimes the records were not entered near the time of the
transactions they described or “in a timely fashion” and that either clerks or

managers may be entering information after the fact. Id. He then reiterated


                             Appellant’s Brief, 03-14-00595-CR
                                     Page 14 of 47
several times that it was a “law enforcement based service” that non-law
enforcement personnel could not use to search transactions or update

information. 5 R.R. at 122.

      When the State moved to admit State’s Exhibit 36, Defense Counsel

objected (among other grounds) that it was “hearsay from probably 50 to 60
different sources,” that it denied Garraway the right to confrontation, that it was
a law enforcement report, and that a proper foundation had not been laid for it;
indeed, that “a whole lot of [the exhibit] has not been verified by [Marin] in any
form, fashion or style” because the detective was not qualified to authenticate it.
5 R.R. at 124–25. He also objected that it was more prejudicial than probative
because it contained “numerous items . . . which cannot be identified as stolen
property [without] names on them. But the danger to the jury in seeing that
documentation is to go: ‘Oh, all of this must be stolen’ [which] he can’t testify
[to].” 5 R.R. at 126. It was discovered during the evidentiary discussion that the
exhibit contained handwritten notes from both Marin and an unknown person
who Marin speculated was another detective. 5 R.R. at 124–25.

      The State responded that State’s Exhibit 36 was probative because Kajileh
had already testified that everything he and Garraway pawned was stolen and that

it was not a law enforcement record because pawnshops access it as well to enter
the initial data. 5 R.R. at 127. As for authentication, the argument was that it was
a business record, and in the digital age, anyone who can access and understand

the program was qualified to authenticate its reports. 5 R.R. at 127–28.


                              Appellant’s Brief, 03-14-00595-CR
                                      Page 15 of 47
       The court admitted State’s Exhibit 36, 5 R.R. at 128, but the cross-
examination of Marin focused on other matters. 5 R.R. at 128–45.

       The State’s last witness was Detective Mark Jarman (“Jarman”), also with
the San Marcos Police Department. He testified that he and Marin first

connected Garraway with credit card abuse cases involving owners Kaitlyn
Cunningham and April Kontak and a burglary involving an unnamed owner and
a stolen Xbox. 5 R.R. at 150–52.

       The bulk of Jarman’s testimony concerned the process of the
investigation. Jarman and Marin found hits on LeadsOnline then went to
pawnshops to retrieve property and match it to reports and owners (only one of
whom, a “Mr. Lopez” who owned an Xbox, was ever identified in Jarman’s
testimony). 5 R.R. at 153–60. They also investigated and interviewed other
suspects, some of whom had missing property (suspect Aaron Carr, for example,
had April Kontak’s laptop). 5 R.R. at 161–63.

       The State discussed Exhibit 36 with Jarman and also offered State’s
Exhibit 37, a summary of the investigation and various aspects of multiple police
reports covering dates, pawnshop locations, pawned property, and the identity
of the person pawning the property. 5 R.R. at 170–71. Defense Counsel objected,
saying that “it is confusing, it is work product, it’s hearsay [and] assumes facts not
in evidence”; the State responded that it was already “in the LeadsOnline [State’s

Exhibit 36].” 5 R.R. at 171. The court admitted the exhibit. Id.



                               Appellant’s Brief, 03-14-00595-CR
                                       Page 16 of 47
       The State also went through the indictment and asked whether each listed
owner had identified specific property as their own. 5 R.R. at 187–97. Detective

Jarman connected each owner to each piece of property through the police
reports they had filed and asked them to verify that they owned the property. 5
R.R. at 187. Defense Counsel objected to hearsay, and arguably, confrontation,
saying the testimony “was hearsay. This individual has not testified. . . . If he
wants to testify . . . that’s fine. But as far as that individual’s identification of
property . . . that’s purely hearsay.” 5 R.R. at 189. The objection was overruled
and the testimony permitted. Id.

       The last piece of evidence admitted through Detective Jarman was State’s
Exhibit 41, a summary of his investigation Jarman himself created “through
LeadsOnline and what [he] actually recovered from the pawnshops.” 6 R.R. at
56. Garraway objected “on the basis of hearsay. A summary of his police report
with excerpts that he thinks is best for the jury to hear is not admissible [and] it
is duplicative of the information from the LeadsOnline.” 6 R.R. at 57. That was
overruled and the exhibit admitted. Id.

       The remaining testimony from Detective Jarman established that some of
the owners listed in the indictment had never gotten their property back, and
much of what was found had been pawned by or recovered from Kajileh or
other suspects. 6 R.R. at 58–71.

       The state then rested, and after a brief opening, Garraway himself took
the stand. 6 R.R. at 76. He testified that Kajileh would regularly bring him

                              Appellant’s Brief, 03-14-00595-CR
                                      Page 17 of 47
property that they pawned together; he found it suspicious, but Kajileh never
said where the property came from and Garraway never asked. 6 R.R. at 81–84.

Eventually that progressed to Kajileh showing Garraway credit cards he knew
did not belong to Kajileh, but Garraway nonetheless used them together with
Kajileh. 6 R.R. at 86. He denied having any part in the burglaries. 6 R.R. at 88.

       On cross-examination, Garraway admitted that the value of all items he
and Kajileh pawned would be over $1,500. 6 R.R. at 110.

       Both sides rested and closed following Garraway’s testimony, and the
parties discussed the charge. 7 R.R. at 4. As that discussion began, the State
abandoned (and the court dismissed) the final two counts in the indictment. 7
R.R. at 4–5. The charge, prepared earlier by State, 4 R.R. at 63, was not objected
to by either side. 7 R.R. at 4–5.

       It tracked each of the remaining burglary counts but added a lesser-
included of state jail felony theft alleging that:
       Andrew Garraway, on or about and between the 22nd day of February 2011
       and the 14th day of April 2011, in the County of Hays and State of Texas,
       pursuant to one scheme and continuing course of conduct did then and there
       intentionally and unlawfully appropriate property: to wit, various musical
       instruments and equipment and electronic equipment of the value of $1,500
       or more, but less than $20,000 with the intent to deprive the owners of the
       property: to wit, [each owner listed in the indictment]

7 R.R. at 21.

       Garraway’s closing focused on attacking Kajileh’s credibility and the
conclusiveness of the investigation in the case. 7 R.R. at 27–52. It also

                               Appellant’s Brief, 03-14-00595-CR
                                       Page 18 of 47
highlighted the lack of proof about value, 7 R.R. at 44–45, and ownership. 7 R.R.
at 50–52. The State’s closing responded by addressing the credibility of both

Garraway and Kajileh, emphasizing the applicability of the law of parties, and
highlighting the documentary evidence in the case. 7 R.R. at 53–62. The State
also informed the jury that it could convict for any form of unlawful
appropriation (although none submitted). 7 R.R. at 55–56.




                             Appellant’s Brief, 03-14-00595-CR
                                     Page 19 of 47
              S UMMARY OF THE A RGUMENT
      The argument in this case can be divided into three areas: charge error,

evidentiary error, and legal sufficiency of the evidence. Charge error allowed
Garraway’s conviction for a lesser-included that was not properly within the
indictment. The burglary counts in the indictment simply did not contain all the

necessary elements that would include theft of property valued at $1,500 or more
but less than $20,000—specifically, a description of the stolen property and its
value or any language to aggregate the various thefts underlying the burglaries.
The charge on the lesser-included also entirely omitted the essential element of
“lack of effective consent” and failed to require the jury to unanimously agree
about what property was stolen and from whom. Garraway was egregiously

harmed by these errors, which warrants remand for a new trial.

      The evidentiary matters include the admission of three State’s exhibits and
certain testimony. The exhibits were all from or based on a program called
LeadsOnline, a database used by law enforcement. As Defense Counsel objected
at trial, those exhibits were hearsay, inadmissible law enforcement records, not

properly authenticated as business records, violations of Garraway’s right to
confrontation, not relevant, and more prejudicial than probative. The testimony
was hearsay about effective consent, ownership, and property identity that met

no exception to hearsay whatsoever and infringed on Garraway’s confrontation
rights. The improper admission of this evidence was an abuse of discretion that
affected Garraway’s substantial rights and therefore merits remand for a new trial.


                             Appellant’s Brief, 03-14-00595-CR
                                     Page 20 of 47
      Finally, the evidence was legally insufficient because there was no evidence
to establish the identity or lack of consent of many of the owners involved and

no legally adequate evidence to establish a property value falling within the state
jail felony range. While normally that might call for a reformation of the
judgment, there can be no certainty that the jury found every element of any
lesser-included offense due to the errors in the jury charge, leaving entry of an
acquittal as the only recourse.




                              Appellant’s Brief, 03-14-00595-CR
                                      Page 21 of 47
                                     A RGUMENT
I s s u e O n e T h e f t a s a L e s s e r- i n c l u d e d O f f e n s e

G a r r awa y wa s e g r e g i o u s l y h a r m e d b e c a u s e t h e ju r y c h a r g e
a u t h o r i ze d a c o nv i c t i o n f o r t h e f t o f p r o p e r t y va lu e d a t
$ 1 ,5 0 0 ≤ $ 2 0 ,0 0 0 , w h i c h wa s n o t a l e s s e r - i n c lu d e d o f f e n s e
o f b u r g la r y a s - i n d i c t e d i n t h i s c a s e

        Theft of property valued at $1,500 or more but less than $20,000 was
included in the jury charge as a lesser-included offense of the burglaries charged
in the indictment. A lesser-included offense is “established by proof of the same
or less than all the facts required to establish the commission of the offense
charged.” T EX . C ODE C RIM . PROC. A NN. art. 37.09 (1) (West 2006). That
determination is made by comparing the elements of the greater offense as set

forth in the indictment with the elements of the lesser offense, a process known
as the “cognate pleadings” test. Hall v. State, 225 S.W.3d 524, 536–37 (Tex. Crim.
App. 2007). Since the actual pleadings are the focus, “when the greater offense
may be committed in more than one manner, the manner alleged will determine
the availability of lesser-included offenses.” Id. at 531.

        Burglary and theft are distinct offenses; burglary is a prohibited entry,
while theft is a prohibited taking. Compare T EX . P EN. C ODE A NN. § 30.02 (West
2011) (elements of burglary) with id. § 31.03 (elements of theft). Because burglary

may be committed by a prohibited entry followed by a theft, theft may be a lesser-



                                    Appellant’s Brief, 03-14-00595-CR
                                            Page 22 of 47
included offense if burglary is indicted that way. Hall, 225 S.W.3d at 537. The
indictment in this case did just that.

       However, theft has elements not normally associated with burglary,
including a description of the stolen property and its value. Wood v. State, 632

S.W.2d 734, 736 (Tex. Crim. App. 1982). For theft to be a lesser-included offense
of burglary, then, a burglary indictment must actually include those elements. Ex
parte Sewell, 606 S.W.2d 924, 924 (Tex. Crim. App. 1980); Peoples v. State, 566 S.W.2d
640, 641 (Tex. Crim. App. [Panel Op.] 1978); Middleton v. State, 187 S.W.3d 134,
140 (Tex. App.—Texarkana 2005, no pet.); Steward v. State, 830 S.W.2d 771, 774
(Tex. App.—Houston [14th Dist.] 1992, no writ); see Dean v. State, 938 S.W.2d
764, 770 (Tex. App.—Houston [14th Dist.] 1997, no writ) (theft by receiving
stolen property not lesser-included offense of burglary unless all elements of
theft alleged in indictment). Likewise, aggregate thefts must allege that the
offenses were all part of one scheme or continuing course of conduct. Thomason
v. State, 892 S.W.2d 8, 10 (Tex. Crim. App. 1994). If a burglary indictment does
not include all elements that must be proven in a theft, a lesser-included offense
of theft cannot be submitted to a jury. Middleton, 187 S.W.3d at 140.

       The indictment in this case did not describe the stolen property or its

value. As a consequence, theft was not an available lesser-included offense. There
was also no allegation in the indictment of a single scheme or continuing course
of conduct, but the “lesser-included” combines all counts in the indictment into

a single aggregate theft; it actually requires greater proof than any allegation


                               Appellant’s Brief, 03-14-00595-CR
                                       Page 23 of 47
Garraway was charged with. The charge he was convicted of should never have
been submitted to the jury in the first place.

       Errors in the trial court’s charge to the jury cannot result in reversal unless
“the error . . . was calculated to injure the rights of the defendant [or if he] has

not had a fair and impartial trial.” T EX . C ODE C RIM . PROC. A NN. art. 36.19
(West 2006). That is decided through a harm analysis. Almanza v. State, 686 S.W.2d
157, 174 (Tex. Crim. App. 1985). In cases like this, where there was no objection

to the charge, the threshold is “egregious harm.” Mann v. State, 964 S.W.2d 639,
641 (Tex. Crim. App. 1998); Almanza, 686 S.W.2d at 171.

       Egregious harm refers to errors “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 v.
State, 332 S.W.3d 483, 489–90 (Tex. Crim. App. 2011); Almanza, 686 S.W.2d at
172. A charge that authorizes conviction for an improper lesser-included offense
meets that standard because it deprives the defendant of notice of the charges
against him. Schmuck v. U.S., 489 U.S. 705, 717–18 (1989); Woodard v. State, 322
S.W.3d 648, 657 (Tex. Crim. App. 2010); Beasley v. State, 426 S.W.3d 140, 147–49
(Tex. App.—Houston [14th Dist.] 2012, no pet.); see U.S. C ONST. amend. V

(establishing right to be charged by indictment); T EX . C ONST. art. I, § 10
(establishing right to notice of charges).

       In other words, conviction of an improper lesser-included offense is a per
se violation of a defendant’s due process rights, and an “unobjected-to and

                              Appellant’s Brief, 03-14-00595-CR
                                      Page 24 of 47
unwaived submission of an unindicted offense in the jury charge followed by a
conviction of that offense meets Almanza’s ‘egregious harm’ standard.” Woodard,

322 S.W.3d at 658–59. Submission of an erroneous lesser-included offense is
only harmless if the defendant actively requested the charge. Id. at 659.

        Garraway did not request the lesser-included charge of theft in this case;
in fact, the charge was suggested by the State. As a result, he suffered egregious
harm, and the proper remedy in this situation is a new trial. Benavidez v. State, 323
S.W.3d 179, 181 (Tex. Crim. App. 2010). The new trial, of course, should be on
the improperly submitted lesser-included offense, since when a defendant is
convicted “of an offense lower than that for which he [wa]s indicted,” the
previous acquittal of the higher offense in the first trial “shall be considered an
acquittal of the higher offense” in the jeopardy context of any new trial. T EX .
C ODE C RIM . PROC. A NN. art. 37.14 (West 2006).

I s s u e Two E l e m e n t s i n t h e T h e f t C h a r g e

G a r r awa y wa s e g r e g i o u s l y h a r m e d b e c a u s e t h e ju r y c h a r g e
a u t h o r i ze d a c o nv i c t i o n f o r t h e f t o f p r o p e r t y va lu e d a t
$ 1 ,5 0 0 ≤ $ 2 0 ,0 0 0 w i t h o u t r e q u i r i n g t h e ju r y t o u n a n i m o u s l y

f i n d a l l e l e m e n t s o f t h a t o f f e n s e b e yo n d a r e a s o n ab le d o u b t

        A jury charge “must contain an accurate statement of the law and must
set out all the essential elements of the offense.” Dinkins v. State, 894 S.W.2d 330,
339 (Tex. Crim. App. 1995). Unsurprisingly, a charge that does not include all
elements of an offense is fundamentally defective. Thompson v. State, 574 S.W.2d

                                  Appellant’s Brief, 03-14-00595-CR
                                          Page 25 of 47
103, 104 (Tex. Crim. App. [Panel Op.] 1978); Evans v. State, 606 S.W.2d 880, 883
(Tex. Crim. App. [Panel Op.] 1980), overruled on other grounds, Woods v. State, 653

S.W.2d 1 (Tex. Crim. App. 1982); Sanchez v. State, 182 S.W.3d 34, 62 (Tex. App.—
San Antonio 2005), aff ’d, 209 S.W.3d 117 (Tex. Crim. App. 2006). While         the
indictment in this case did not contain all the elements that would have made
theft a lesser-included, the actual lesser-included charge did not contain all the
elements of theft.

          To prove a theft, the State must show “that the defendant unlawfully
appropriated property with the intent to deprive the owner of property without
the owner’s effective consent.” T EX . P EN. CODE A NN. § 31.03 (a) (West 2011);
Wirth v. State, 361 S.W.3d 694, 697 (Tex. Crim. App. 2012). The application
section of a jury charge for theft must (among other things) require the jury to
find beyond a reasonable doubt whichever statutory definition of “unlawful” is
relied upon, such as the lack of effective consent of the owner. Milton v. State,
652 S.W.2d 958, 959 (Tex. Crim. App. 1983); Young v. State, 621 S.W.2d 779, 780–
81 (Tex. Crim. App. [Panel Op.] 1981); Evans, 606 S.W.2d at 883; Hill v. State, 625
S.W.2d 803, 806–07 (Tex. App.—Houston [14th Dist.] 1981, no writ). That was
entirely omitted from the charge given to the jury in Garraway’s trial, and in fact,
the State told the jury in its closing that they could convict based on any

definition of unlawful, although none were actually alleged in the application
portion of the charge.




                              Appellant’s Brief, 03-14-00595-CR
                                      Page 26 of 47
       The relevant standard here is whether Garraway suffered “egregious
harm” from the charge error. Mann, 964 S.W.2d at 641; Almanza, 686 S.W.2d at

171 & 174. That standard is met by a conviction obtained without requiring the
jury to find all elements of an offense beyond a reasonable doubt. Sanchez, 182
S.W.3d at 62. In fact, the Court of Criminal Appeals and other courts of appeals
have explicitly found jury charges on theft insufficient for failing to require proof
that the appropriation was without the effective consent of the owner. Milton,
652 S.W.2d at 959; Young, 621 S.W.2d at 780–81; Evans, 606 S.W.2d at 883; Hill,
625 S.W.2d at 806–07.

       Considering the elements in the charge raises the additional question of
jury unanimity. In this case, the names of each owner from burglaries were listed
disjunctively and a general description of all collective property was listed
conjunctively in the charge on theft. Although the names as such are not
substantive elements of theft, they describe an element: ownership. Byrd v. State,
336 S.W.3d 242, 251 (Tex. Crim. App. 2011). In an aggregate theft case, a jury
must “unanimously agree about what property was unlawfully appropriated and

who owned it,” as discussed at length recently by the Fourteenth Court of
Appeals in Kent v. State, 447 S.W.3d 408 (Tex. App.—Houston [14th Dist.] 2014,
pet. granted).

       In Kent, the court’s charge covered multiple thefts from multiple owners
over an extended time period but did not specify that the jury must be unanimous

about which thefts it was relying on to convict, just like the charge here. Id. at


                              Appellant’s Brief, 03-14-00595-CR
                                      Page 27 of 47
413. On appeal, the Fourteenth Court found that because it could not determine
from either the charge or the record whether the jury had been unanimous about

which owners or property (and therefore, which complete thefts) were being
relied upon, reversal was called for. Id. at 423–24.

       Like charge error that omits elements, charge error that authorizes a non-
unanimous verdict can result in egregious harm. Stuhler v. State, 218 S.W.3d 706,
719–20 (Tex. Crim. App. 2007); Ngo v. State, 175 S.W.3d 738, 751–52 (Tex. Crim.
App. 2005). A telling example is found in Stuhler. There, the Court of Criminal
Appeals noted that although the State “did not make a point of stressing to the
jury that it need not agree which of the elemental facts occurred,” the very fact
that there was significant dispute over which alternative facts had been proven
suggested egregious harm. Stuhler, 218 S.W.3d at 720. Here, similarly, because
Garraway vigorously disputed the proof of ownership through both cross-
examination (particularly of Kajileh) and closing argument, the opportunity for
a non-unanimous verdict on that point worked an egregious harm.

       The proper remedy here is a new trial on theft. See T EX . C ODE C RIM .
P ROC. A NN. art. 37.14 (West 2006) (conviction of lesser-included acquittal of
higher charge if new trial granted); Benavidez, 323 S.W.3d at 181 (charge error
resolved by new trial).




                              Appellant’s Brief, 03-14-00595-CR
                                      Page 28 of 47
Issue Three LeadsOnline Exhibits

T h e t r i a l c o u r t ab u s e d i t s d i s c r e t i o n b y a d m i t t i n g S t a t e ’s
E x h i b i t s 3 6 , 3 7 , & 4 1 ove r G a r r awa y ’s o b je c t i o n s t o h e a r s a y,
c o n f r o n t a t i o n , f o u n d a t i o n , r e le va n c e , a n d p r e ju di c e , w h i c h

c a u s e d h a r m a f f e c t i n g G a r r awa y ’s s u b s t a n t i a l r i g h t s

        Any error related to the admission of evidence must, of course, be

preserved by a timely objection at trial. T EX. R. A PP. P. 33.1 (a). The evidence
about the identity and value of most of the property in Garraway’s trial came
from State’s Exhibits 36, 37, and 41. Exhibit 36 was a printout from LeadsOnline,
a law enforcement database documenting pawnshop transactions; it was objected
to on the grounds of hearsay, confrontation, a lack of proper foundation,
relevance, and undue prejudice. Exhibits 37 and 41 were summaries prepared by

detectives of the police investigation and findings, which incorporated a great
deal of data from LeadsOnline as well as information from various police reports
prepared by officers who did not testify; they were objected to on the grounds
of hearsay and undue prejudice.

        Hearsay is any out-of-court statement offered to prove the truth of the
matter asserted (aside from a few exceptions that are irrelevant here). T EX . R.
E VID. 801. It is not admissible unless it meets an exception outlined in the Rules
of Evidence. T EX . R. E VID. 802. One such exception is for public records and

reports; however, the relevant rule explicitly excludes “in criminal cases matters
observed by police officers and other law enforcement personnel.” T EX . R.

                                    Appellant’s Brief, 03-14-00595-CR
                                            Page 29 of 47
E VID. 803 (8)(B). If hearsay is not admissible due to that exclusion, it is not
alternatively admissible as a business record. Cole v. State, 839 S.W.2d 798, 804–

06 (Tex. Crim. App. 1990).

      Business records that are not also law enforcement records are another

exception. These include any “memorandum, report, record, or data compilation
in any form, of acts, events, conditions, opinions, or diagnoses, [1] made at or
near the time [2] by, or from information transmitted by, a person with
knowledge, [3] if kept in the course of regularly conducted business activity, and
[4] if it was the regular practice of that business activity to make the
memorandum, report, record, or data compilation, [5] all as shown by the
testimony of the custodian or other qualified witness.” T EX . R. EVID. 803 (6).
For someone to be an “other qualified witness,” the person must have personal
knowledge about how the records are entered and maintained. Davis v. State, 699
S.W.2d 955, 958 (Tex. App.—Fort Worth 1985, no writ).

      Even if an exception to hearsay is met, a defendant has a right to confront
the witnesses against him. U.S. C ONST. amend. VI; Pointer v. Texas, 380 U.S. 400,
404 (1965). That right excludes any hearsay statement—even those that might
otherwise meet an exception—if the statement is testimonial based on the

“primary purpose” test. Michigan v. Bryant, 131 S. Ct. 1143, 1161–62 (2011);
Coronado v. State, 351 S.W.3d 315, 324 (Tex. Crim. App. 2011). The question is
whether, viewing the circumstances surrounding the out-of-court statement

neutrally, a reasonable person would think that the statement was made primarily


                             Appellant’s Brief, 03-14-00595-CR
                                     Page 30 of 47
to establish facts for later litigation (which makes it testimonial). Bryant, 131 S.
Ct. at 1161–62; Coronado, 351 S.W.3d at 324.

      Procedurally admissible evidence must still be relevant for admission.
Evidence is relevant if it makes “any fact that is of consequence” to the case

“more probable or less probable.” T EX . R. E VID . 401. The test is whether a
reasonable person would find the evidence helpful in resolving a matter of
consequence to the trial. Montgomery v. State, 810 S.W.2d 372, 376 (Tex. Crim.

App. 1990).

      Finally, relevant evidence may still be excluded “if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, or needless

presentation of cumulative evidence.” T EX . R. E VID . 403. Weighing probative
value against prejudice is done by balancing
      (1) how probative the evidence is; (2) the potential of the evidence to impress
      the jury in some irrational way; (3) the time the proponent will need to develop
      the evidence; and (4) the proponent’s need for the evidence, i.e., whether other
      evidence is available and whether the fact of consequence is related to a
      disputed issue.

Montgomery, 810 S.W.2d at 378; accord Powell v. State, 189 S.W.3d 285, 287 (Tex.
Crim.. App. 2006). Once a rule 403 objection has been made, a trial court must
perform this balancing test; if the record is silent on that point, an appeals court

must presume the trial court did so but simply did not put it on the record.
Williams v. State, 958 S.W.2d 186, 195–96 (Tex. Crim. App. 1997).


                                Appellant’s Brief, 03-14-00595-CR
                                        Page 31 of 47
      State’s Exhibits 36, 37, and 41 were hearsay because they were offered to
prove all aspects of the transactions they described. They were also law

enforcement records; Marin testified at length that they are only accessible by
law enforcement personnel and pawnshop employees and that law enforcement
agents enter information into the database to further criminal investigations.
State’s Exhibit 36, the printout of the LeadsOnline information, actually says
“The information contained herein is for authorized law enforcement use only”
on the footer of every single page. In addition to the LeadsOnline data, the other
two exhibits also contained information culled from various police reports.
These exhibits are specifically excluded by the Rules of Evidence.

      Even if they were not, Marin and Jarman did not and could not lay the
foundation for these exhibits as business records. The testimony was that the
records were not necessarily made at or near the time of the transaction being
documented, and it was not established that the people entering information had
personal knowledge of the transactions. Moreover, the detectives’ general
confusion and admitted lack of understanding about the details of how the

records were generated demonstrate that they are not “other qualified witnesses”
who could authenticate the records.

      The right to confrontation undermines these exhibits as well. As the
product of a database used strictly for investigations by law enforcement and the
cornerstone of the actual investigation of Garraway, the LeadsOnline exhibits

were testimonial. In fact, State’s Exhibit 36 included not only the LeadsOnline


                             Appellant’s Brief, 03-14-00595-CR
                                     Page 32 of 47
information, but also the handwritten notes of multiple detectives, and both
State’s Exhibits 37 and 41 were entirely prepared by detectives in anticipation of

trial based on LeadsOnline information and inadmissible police reports created
by officers who did not testify. Admitting these testimonial documents denied
Garraway his constitutional right to confront the witnesses against him.

       Since there is no dispute that much of the information in these exhibits
concerned transactions and property not related to the indictment against
Garraway, the exhibits were also irrelevant. But more importantly, as Defense
Counsel accurately noted, the exhibits were more prejudicial than probative.
They were only partially probative due to the relevance issues already mentioned,
but the irrelevant material had a strong potential to irrationally impress the jury
by suggesting that much more property had been taken than was proven. The
State also spent considerable time with multiple witnesses developing the
evidence despite limited need for it—other evidence was available to prove the
same issues, as demonstrated by the actual owners and pawnshop personnel the
State did call to the stand at trial.

       Admissibility decisions by a trial court are reviewed for abuse of
discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010); Sandoval
v. State, 409 S.W.3d 259, 297 (Tex. App.—Austin 2013, no pet.). Admitting
evidence is an abuse of discretion if the decision on admissibility “lies outside
the zone of reasonable disagreement.” Martinez, 327 S.W.3d at 736. Here, the

court admitted hearsay documents that were undisputedly law enforcement


                                Appellant’s Brief, 03-14-00595-CR
                                        Page 33 of 47
records and summaries of both those records and police reports. The record also
shows that those documents were not supported by a proper foundation and

that there were issues of confrontation, relevance, and prejudice tainting them.
There is no reasonable disagreement about whether they were admissible—they
were not—making the trial court’s decision an abuse of discretion.

       Improper admission of evidence is a non-constitutional error, so when an
abuse of discretion has been shown, the next step is a harm analysis to determine
whether the error affected any “substantial rights.” Motilla v. State, 78 S.W.3d 352,
355 (Tex. Crim. App. 2002); see T EX . R. A PP. P. 44.2 (b) (standards for non-
constitutional errors). Inadmissible evidence does not affect any substantial

rights “if the appellate court, after examining the record as a whole, has fair
assurance that the error did not influence the jury, or had but a slight effect.”
Motilla, 78 S.W.3d at 355 (quoting Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim.
App. 1998)). That includes situations in which the same evidence was also
properly admitted from other sources. Brooks v. State, 323 S.W.3d 893, 897 (Tex.
Crim. App. 2010).

       Motilla and Johnson provide useful examples. The appellate court in Motilla
had fair assurance of the minimal effect of inadmissible evidence because that
evidence was “brief and bore no relationship to the sole contested issue in the
case,” was not unduly prejudicial, and “the State did not emphasize the error,” all
set against a body of trial evidence in that case that was substantial proof of

guilt. Motilla, 78 S.W.3d at 359. Conversely, the court in Johnson found that


                              Appellant’s Brief, 03-14-00595-CR
                                      Page 34 of 47
evidence of an extraneous offense was prejudicial by its very nature. Johnson, 967
S.W.2d at 416–17. Unlike Motilla, the LeadsOnline exhibits here were not brief,

were directly related to contested issues in the case, were prejudicial (and objected
to on those alternative grounds), were emphasized by the State in both
questioning and closing, and were set against evidence weak enough to lead to
acquittal on every count in the indictment in favor of a single lesser-included.
And like Johnson, these exhibits were prejudicial and incorporated evidence of
extraneous matters.

        As a result, there is no assurance—fair or otherwise—that the
inadmissible evidence had no or only slight effect on the verdict against
Garraway. In such circumstances, the appropriate remedy is reversal and remand
for a new trial. Id. at 417.

I s s u e Fo u r K a j i l e h ’s E f f e c t ive C o n s e n t Te s t i m o n y

The      trial      cour t      ab u s e d       its      discretion       by      admitting
t e s t i m o ny f r o m Ju s t i n K a ji le h ab o u t e f f e c t ive c o n s e n t ove r
G a r r awa y ’s o b je c t i o n s t o h e a r s a y a n d c o n f r o n t a t i o n , w h i c h
c a u s e d h a r m a f f e c t i n g G a r r awa y ’s s u b s t a n t i a l r i g h t s

        Only evidence that was objected to a trial is subject to review. TEX . R.
A PP. P. 33.1 (a). In this case, the evidence about effective consent for most

owners came from Kajileh, who said that no listed owner had given Garraway
consent to enter their residence or take any property. Defense Counsel objected
“on hearsay and confrontation clause,” which was summarily overruled.

                                   Appellant’s Brief, 03-14-00595-CR
                                           Page 35 of 47
      Hearsay is any out-of-court statement provided for proof of its truth.
T EX . R. E VID. 801. It is categorically inadmissible unless it meets a legal

exception to that rule. T EX . R. E VID. 802. Kajileh’s testimony was intended to
prove that Garraway did not have the effective consent of the owners, who did
not testify. No exception was offered for the statement’s admissibility by either

the State or the trial court, and no applicable exception is apparent now.

      Garraway also had a right to confront the owners in question, as

guaranteed by the Confrontation Clause. See U.S. C ONST. amend. VI
(Confrontation Clause); Pointer, 380 U.S. at 404 (affirming right to confront
witnesses in a criminal trial). Kajileh’s statement was testimonial: he was an
accomplice-witness contractually cooperating with the State, and the statement
was elicited as a stand-in for testimony necessary to establish an element of the
offense. See Bryant, 131 S. Ct. at 1161–62 (statement testimonial if, viewing

attendant circumstances in neutral light, reasonable person would think
statement made primarily to establish facts for later litigation); Coronado, 351
S.W.3d at 324 (same).

      Review of evidentiary issues is a question of abuse of discretion—
whether the decision to admit the evidence “lies outside the zone of reasonable

disagreement.” Martinez, 327 S.W.3d at 736; Sandoval, 409 S.W.3d at 297. Kajileh’s
hearsay testimony was admitted without the trial court asking for or finding an
exception allowing admission, and there does not appear to be one. Garraway’s

right to confront the relevant witnesses was also set to one side without


                             Appellant’s Brief, 03-14-00595-CR
                                     Page 36 of 47
explanation, and none is obvious in hindsight. Allowing Kajileh’s testimony on
effective consent was an abuse of discretion.

       The trial court’s abuse of discretion did harm to Garraway’s substantial
rights because we are left with no fair assurance the evidence had no or minimal

influence on the jury. See T EX . R. A PP. P. 44.2 (b) (standards for non-
constitutional errors); Motilla, 78 S.W.3d at 355 (improper admission of evidence
non-constitutional error subject to harm analysis); see also Brooks, 323 S.W.3d at

897 (substantial rights not affected if same evidence properly admitted from
other source). Evidence of lack of effective consent from almost all of the
owners here was not offered through any other witness or exhibit, so what

Kajileh testified to was required to prove an essential element of the offense. See
Motilla, 78 S.W.3d at 359 (no or mimimal influence by inadmissible evidence
where evidence not related to contested issue, not prejudicial, State did not
emphasize it, and substantial additional evidence supported conviction). Reversal
and remand for a new trial are the correct course of action as a result. Johnson,
967 S.W.2d at 417.

I s s u e F ive Ja r m a n’s O w n e r s h i p Te s t i m o n y

The      trial    cour t      ab u s e d       its      discretion   by   admitting
t e s t i m o ny f r o m D e t e c t ive M a r k Ja r m a n ab o u t o w n e r s h ip




                                 Appellant’s Brief, 03-14-00595-CR
                                         Page 37 of 47
ove r G a r r awa y ’s o b je c t i o n s t o h e a r s a y a n d c o n f r o n t a t i o n ,
w h i c h c a u s e d h a r m a f f e c t i n g G a r r awa y ’s s u b s t a n t i a l r i g h t s

        Evidentiary issues must be preserved through objection. T EX . R. A PP. P.
33.1 (a). The evidence about ownership for most owners in Garraway’s trial came

from the testimony of Jarman, who stated that he had spoken with the various
owners listed in the indictment and they had told him the property was theirs.
Defense Counsel objected that this was hearsay and that these witnesses were
not testifying (that is, there was no opportunity for confrontation).

        Hearsay—an out-of-court statement offered to prove the truth of the
matter asserted—is inadmissible unless it meets an exception defined by the
Rules of Evidence. TEX . R. E VID. 801 & 802. Jarman’s testimony was offered
to prove the truth of what the owners had said about various property—namely,

that they recognized it as the property that had been stolen from them and that
they owned it. Despite the objection, the State pointed to no exception that
would allow its admission, and the trial court asked for none before overruling
the objection. That is unsurprising, since there is no exception that would apply
in these circumstances: the testimony about ownership was classic hearsay.

        Its admission also violated Garraway’s right to confrontation. Even if an
exception to hearsay is met, a defendant has a right to confront the witnesses
against him. See U.S. C ONST. amend. VI (Confrontation Clause); Pointer, 380 U.S.

at 404 (affirming right to confront witnesses in a criminal trial). Even if there
were an exception, the statements Jarman described were all testimonial: they

                                   Appellant’s Brief, 03-14-00595-CR
                                           Page 38 of 47
were made at the urging of police detectives in the course of a criminal
investigation to establish facts for Garraway’s eventual trial. See Bryant, 131 S. Ct.

at 1161–62 (statement testimonial if, viewing attendant circumstances in neutral
light, reasonable person would think statement made primarily to establish facts
for later litigation); Coronado, 351 S.W.3d at 324 (same).

       Whether evidence was improperly admitted is reviewed for abuse of
discretion—whether the decision “lies outside the zone of reasonable
disagreement.” Martinez, 327 S.W.3d at 736; Sandoval, 409 S.W.3d at 297. The trial
court admitted Jarman’s testimony without asking for or finding any exception
to the hearsay rule, and no exception is apparent now. Likewise, Garraway’s right
to confront the witnesses whose statements Jarman testified to was ignored
without any rationale being advanced, and again, no clear avenue to admissibility
can be found now. Allowing Jarman’s testimony on ownership was an abuse of
discretion.

       That abuse of discretion affected Garraway’s substantial rights because
there is no fair assurance the evidence did not influence (or barely influenced)
the jury. See T EX . R. A PP. P. 44.2 (b) (standards for non-constitutional errors);
Motilla, 78 S.W.3d at 355 (improper admission of evidence non-constitutional
error subject to harm analysis); see also Brooks, 323 S.W.3d at 897 (substantial rights
not affected if same evidence properly admitted from other source). Indeed,
evidence of ownership for the overwhelming majority of the owners in this case

did not come from any other source, meaning that Jarman’s testimony was


                               Appellant’s Brief, 03-14-00595-CR
                                       Page 39 of 47
absolutely necessary to support an essential element of the offense. See Motilla,
78 S.W.3d at 359 (no or mimimal influence by inadmissible evidence where

evidence not related to contested issue, not prejudicial, State did not emphasize
it, and substantial additional evidence supported conviction). The appropriate
course of action now is reversal and remand for a new trial. Johnson, 967 S.W.2d
at 417.

Issue Six Legal-sufficiency of the Evidence

T h e e v i d e n c e wa s le g a l l y i n s u f f i c i e n t t o c o nv i c t G a r r awa y
o f t h e f t o f p r o p e r t y va lu e d a t $ 1 , 5 0 0 ≤ $ 2 0 , 0 0 0

       Legal-sufficiency is tested by deciding whether—viewing the evidence in
the light most favorable to the verdict—any rational juror could have found each

element of the offense beyond a reasonable doubt. Brooks, 323 S.W.3d at 896
(applying standard announced in Jackson v. Virginia, 443 U.S. 307 (1979)). The
“most favorable to the verdict” language means that sufficiency review must

defer to the jury’s determinations of weight and credibility and resolve any
conflicting evidence in favor of the verdict. Jackson, 443 U.S. at 318–19; Temple v.
State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013); Brooks, 323 S.W.3d at 912. In
essence, if there is some evidence of each essential element, the evidence is legally
sufficient to support a conviction.

       The relevant elements come from the “hypothetically correct jury
charge”—one that



                                  Appellant’s Brief, 03-14-00595-CR
                                          Page 40 of 47
       accurately sets out the law, is authorized by the indictment, does not
       unnecessarily increase the State’s burden of proof or unnecessarily restrict the
       State’s theories of liability and adequately describes the particular offense for
       which the defendant was tried.

Malik v. State, 953 S.W.2d 234, 239–40 (Tex. Crim. App. 1997). Therefore, while
Garraway contends that theft was not properly before the jury and in any event
was not properly charged, the sufficiency of the evidence may still be challenged.

       A hypothetically correct jury charge on aggregate theft in this case would
have required the jury to find beyond a reasonable doubt that, pursuant to one
scheme or continuing course of conduct, Garraway unlawfully appropriated
property with the intent to deprive each named owner of the property without

each named owner’s effective consent, and that the value of the property stolen
was $1,500 or more but less than $20,000. See T EX . P EN. C ODE A NN. § 31.03
(a), (b), & (e)(4) (West 2011) (elements of state jail felony theft); id. § 31.09

(aggregation of amounts involved in theft); Byrd, 336 S.W.3d at 250–51 (theft
involves taking specified property away from owner without owner’s consent).

       Missing here is any evidence whatsoever of the identity or lack of consent
of the overwhelming majority of the owners or a property value falling within
the state jail felony range.

       While an owner’s name is not an element of the offense, it generally stands
in for ownership itself, an element that must be proven. Byrd, 336 S.W.3d at 251–

53 & n. 16. In Byrd, the State very thoroughly proved that the defendant had
committed theft from Wal-Mart, which the Court of Criminal Appeals held


                                 Appellant’s Brief, 03-14-00595-CR
                                         Page 41 of 47
insufficient to prove theft from a loss prevention officer named in the charging
instrument and jury charge but not proven at trial. By failing to prove the identity

of the owner, the State failed to prove an essential element of the offense. The
same happened in Garraway’s case: the State proved the identity of five of the
eighteen owners listed in the jury charge. The remaining thirteen were mentioned
during argument and the questioning of Kajileh and Jarman, but did not testify
and were not connected with their specific property. As in Byrd, there was never
any actual evidence offered to identify the owners.

      Because most of the owners never testified, there was not any testimony
establishing their lack of consent. At best, Kajileh testified that he had not “seen
or heard” Garraway obtain permission, but he could not testify that the owners
had denied him effective consent.

      The value of the property is likewise murky. The only property for which
there is evidence of value from the owner was the camera that belonged to
Caitlyn Smith, which she said cost about $800. There is also evidence to infer
that Amy Zuniga’s saxophone was the same one Garraway sold for $350 (as
documented by State’s Exhibit 32) and that Andrew Davila’s Xbox and
controllers were the same ones pawned for a total (including other items) of $120
(as documented by State’s Exhibit 33).

      For the rest of the property, there is no evidence whatsoever connecting

it to the owners listed in the indictment, and consequently, no evidence of the
value of the property taken from those owners. There is mention by Kajileh that

                              Appellant’s Brief, 03-14-00595-CR
                                      Page 42 of 47
they pawned a number of items for “around $1,500” and similar testimony by
Garraway, but that does not establish the value of the specific items taken or

even establish their collective value, since there is no evidence that the property
pawned is the same property listed in the jury charge on theft.

       Finally, even if the pawn values were connected to the property listed in
the theft charge, pawn value alone cannot establish value as a matter of law. Not
only is it not a “sale”—a pawn being a loan on collateral—the standard is that
when a non-owner testifies about value, “the non-owner must be qualified as to
his knowledge of the value of the property and must give testimony explicitly as
to the fair market value or replacement value of the property.” Sullivan v. State,
701 S.W.2d 905, 909 (Tex. Crim. App. 1986); accord Holz v. State, 320 S.W.3d 344,
350 (Tex. Crim. App. 2010). The same logic would apply to statements by
Kajileh, Jarman, and Garraway—non-owners—about general possible values of
the property.

      When the evidence is legally insufficient to convict under a hypothetically
correct jury charge, a case must be remanded to the trial court for either acquittal
or reformation. Rabb v. State, 434 S.W.3d 613, 618 (Tex. Crim. App. 2014).
Reformation is only available when the jury necessarily found every element for
a lesser-included offense and the evidence was sufficient for conviction of that
offense. Thornton v. State, 425 S.W.3d 289, 299–300 (Tex. Crim. App. 2014). For
example, in a property offense, if the only element for which there is insufficient

evidence is value, reformation to the appropriate lesser grade of the offense for


                              Appellant’s Brief, 03-14-00595-CR
                                      Page 43 of 47
which there is sufficient evidence is the appropriate remedy. Bowen v. State, 374
S.W.3d 427, 432 (Tex. Crim. App. 2012).

      Here, there is probably sufficient evidence for conviction of class A
misdemeanor theft of property valued at $500 or more but less than $1,500.

However, the errors in the jury charge—omission of elements and no unanimity
requirement—mean that the jury did not necessarily find every element of that
lesser-included. Since we cannot know what they found based on the record, the
only solution available is a judgment of acquittal.




                              Appellant’s Brief, 03-14-00595-CR
                                      Page 44 of 47
                                   P RAYER
      Garraway moves this court to reverse the judgment against him. If this

court finds only that Garraway was egregiously harmed by charge error or that
his substantial rights were affected by improperly admitted evidence, Garraway
moves for remand to the trial court for a new trial on theft. However, Garraway

urges this court to remand the case to the trial court for acquittal based on the
legal insufficiency of the evidence.

                                                         R ESPECTFULLY S UB MITTED,




                                             M R . E LLIC S AHUALLA
                                             Counsel for Appellant
                                             State Bar Number 24057365
                                             600 W. 13th St.       Austin, Texas 78701
                                             ph (512) 921-8247     fax (512) 451-5882
                                             email ellic@sahuallalaw.com




                             Appellant’s Brief, 03-14-00595-CR
                                       Page 45 of 47
            C ERTIFICATE OF C OMPLIANCE
      I certify that the parts of this document not excluded under T EX . R. A PP.

P ROC. 9.4 (i)(1) contain a total of 9,277 words according to the word count of
the computer program used to prepare the document.




                                             M R . E LLIC S AHUALLA
                                             Counsel for Appellant
                                             State Bar Number 24057365
                                             600 W. 13th St.       Austin, Texas 78701
                                             ph (512) 921-8247     fax (512) 451-5882
                                             email ellic@sahuallalaw.com




                             Appellant’s Brief, 03-14-00595-CR
                                     Page 46 of 47
                 C ERTIFICATE OF S ERVICE
      I certify that on March 20, 2015, a true and correct copy of this document

was served on the Honorable Wes Mau (whose address is 712 S. Stagecoach Trail,
Ste. 2057, San Marcos, Texas 78666) through the electronic filing manager.




                                            M R . E LLIC S AHUALLA
                                            Counsel for Appellant
                                            State Bar Number 24057365
                                            600 W. 13th St.       Austin, Texas 78701
                                            ph (512) 921-8247     fax (512) 451-5882
                                            email ellic@sahuallalaw.com




                            Appellant’s Brief, 03-14-00595-CR
                                    Page 47 of 47
