                                                                               ACCEPTED
                                                                          03-14-00595-CR
                                                                                 4634405
                                                                THIRD COURT OF APPEALS
                                                                           AUSTIN, TEXAS
                                                                    3/25/2015 11:14:55 AM
                                                                         JEFFREY D. KYLE
                                                                                   CLERK
                    NO. 03-14-00595-CR


                    COURT OF APPEALS              FILED IN
                                           3rd COURT OF APPEALS
                       FOR THE                  AUSTIN, TEXAS
           AUSTIN SUPREME JUDICIAL DISTRICT3/25/2015 11:14:55 AM
                                               JEFFREY D. KYLE
                                                    Clerk


                 ANDREW ELON GARRAWAY,
                          Appellant

                           VS.


                   THE STATE OF TEXAS,
                          Appellee


                      APPEAL FROM
           THE 22ND JUDICIAL DISTRICT COURT
                   HAYS COUNTY, TEXAS
            TRIAL COURT CAUSE NO. CR-11-0925




                     STATE'S BRIEF




                          Ben Moore
                          Asst. Criminal District Attorney
                          712 S. Stagecoach Trail, Suite 2057
                          San Marcos, Texas 78666
ORAL ARGUMENT IS          Ph: (512) 393-7600 / Fax: (512) 393-2246
 NOT REQUESTED            State Bar No. 24042522
                          benj amin.nioore@co.hays.tx.us
                          Attorney for the State of Texas
                           NAMES OF PARTIES

Appellee:                  State of Texas


Attorneys for the State:   Wesley H. Mau, Hays County District Attorney
      At trial:            Ben Moore, Assistant Criminal District Attorney
      On appeal:           Ben Moore
                           Asst. Criminal District Attorney
                           Katie McVaney
                           Asst. Criminal District Attorney
                           712 S. Stagecoach Trail, Suite 2057
                           San Marcos, Texas 78666

Appellant:                 Andrew Elon Garraway

Attorneys for Appellant:
      At trial:            David S. Watts
                           174 S. Guadalupe Street, Suite 101
                           San Marcos, Texas 78666-5567

      On appeal:           Ellic Sahualla
                           600 West 13*^ Street
                           Austin, Texas 78710




                                                                             Page ii
                      TABLE OF CONTENTS

NAMES OF PARTIES                                                ii
TABLE OF CONTENTS                                              iii
INDEX OF AUTHORITIES                                           iv
STATEMENT OF THE CASE                                           2
STATEMENT OF FACTS                                              3
ISSUES PRESENTED                                                3
ARGUMENT                                                        4
  STATE'S RESPONSE TO POINT OF ERROR 1                          4
    THEFT IS A LESSER ESfCLUDED OFFENSE OF BURGLARY OF A
    HABITATION.
 STATE'S RESPONSE TO POINT OF ERROR H                    8
    THE JURY CHARGE PROPERLY ALLEGED THE THEFT ELEMENTS.
 STATE'S RESPONSE TO POINT OF ERROR m                   10
    BUSINESS  RECORDS   AND    SUMMARIES  WERE   PROPERLY
    ADMITTED.
 STATE'S RESPONSE TO POINT OF ERROR TV               12
    THE COURT DID NOT ADMIT HEARSAY THROUGH THE
    CODEFENDANT TESTIFYING ABOUT       CONSENT TO ENTER
    HABITATIONS.
 STATE'S RESPONSE TO POINT OF ERROR V                         13
    THE DETECTIVE'S TESTIMONY TO WHOM          AND      HOW   HE
    RETURNED STOLEN PROPERTY WAS NOT HEARSAY.
 STATE'S RESPONSE TO POINT OF ERROR VI                         14
    THE    EVIDENCE   WAS   LEGALLY   SUFFICIENT   TO   CONVICT
    GARRAWAY OF THEFT OF PROPERTY VALUED AT $1,500.00 OR
    MORE BUT LESS THAN $20,000.00.
CONCLUSION                                                     16

PRAYER                                                         16

CERTIFICATE OF COMPLIANCE WITH TEX.R.APP.PROC.,
RULE 9.4                                                       17

CERTIFICATE OF SERVICE                                         17




                                                          Page iii
                            INDEX OF AUTHORITIES

FEDERAL CASES


Crawford v. Washington, 541 U.S. 36 (2004)                         13

STATE CASES


Bergv. State, 747 S.W.2d 800 (Tex. Crim. App. 1988).....          ...9

Banner v. State, 820 S.W.2d 25 (Tex. App.—^Houston [Hth
  Dist] 1991)                                                       7

Brooks V. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)             14

Crocker v. State, 573 S.W.2d 190 (Tex. Crim. App. 1978)            12

Evans v. State, 606 S.W.2d 880 (Tex. Crim. App. 1980)               8

Exparte Sewell, 606 S.W.2d 924 (Tex. Crim. App. 1980)               6

Hall V. State, 225 S.W.3d 524 (Tex. Crim. App. 2007)                4

Kellar v. State, 108 S.W.3d 311 (Tex. Crim. App. 2003)             10

Kent V. State, 447 S.W.3d 408 (Tex. App.—Houston [14^ Dist.]
   2014) (pet. granted)                                             9

Langs V. State, 183 S.W.3d 680 (Tex. Crim. App 2006)                4

Martinez v. State, 'ill S.W.3d 727 (Tex. Crim. App. 2010)          10

McClain v. State, 687 S.W.2d 350 (Tex. Crim. App. 1985)             9

Milton V. State, 652 S.W.2d 958 (Tex. Crim. App. 1983)              9

Mitchell V. State, 137 S.W.3d 842 (Tex. App.—Houston [r'
   Dist] 2004, pet. refd)                                           5

Ramirez y. State, 422 S.W.3d 898 (Tex. App.—Houston [14th
  Dist] 2014, pet refd)                                             8

Shelby V. State, 2007 WL 2141291 (Tex. App.—Austin 2007)            5

                                                               Page iv
Tapps V. State, 257 S.W.3d 438 (Tex. App. —^Austin 2008, pet.
  granted)                                                            12

Williams v. State, 314 S.W.3d 45, 53 (Tex. App.—Tyler 2010)           7

Young V. State, 621 S.W.2d 779 (Tex. Crim. App. 1981)                 8

STATE STATUTES


Tex. Code Crim. Proc. Ann. Art. 37.09                                 4

Tex. Code Crim. Proc. Art. 38.39                                      15

Tex. Penal Code Ann. § 30.02                                           5

Tex. Penal Code Ann. § 31.03 (A)(1)                                   6

Tex. R.EVID. 1006                                                  11,12

Tex.R.Evid. 801                                                    13,14

Tex.R.Evid. 803(6)                                              10,11,12




                                                                  Page V
                             NO. 03-14-00595-CR


                             COURT OF APPEALS
                                   FOR THE
                  AUSTIN SUPREME JUDICIAL DISTmCT




                       ANDREW ELON GARRAWAY,
                                     Appellant

                                      VS.


                           THE STATE OF TEXAS,
                                     Appellee


                                APPEAL FROM
                   THE 22ND JUDICIAL DISTRICT COURT
                           HAYS COUNTY, TEXAS
                   TRIAL COURT CAUSE NO. CR-11-0925




                               STATE'S BRIEF



TO THE HONORABLE JUSTICE OF THE COURT OF APPEALS:


      COMES NOW the State of Texas, by and through her Assistant District

Attorney, Ben Moore, and files this State's Brief pursuant to Texas Rules of

Appellate Procedure 38.2 and would show the Court the following:




                                                                     Page 1
                          STATEMENT OF THE CASE

      The Grand Jury of Hays County indicted Andrew Elon Garraway

("Garraway") on November 22, 2011/ The indictment consisted of twenty counts of

Burglary of Habitation with intent to commit theft, did attempt to commit theft, and

did commit theft? Two counts were abandoned by the State.

      On April 10, 2014, a jury trial began.^ The jury found Garraway not guilty on

all counts.'^ The jury found Garraway guilty of the lesser-included offense of theft,

$1,500 or more, but less than $20,000 on April 21, 2014/

      On June 19, 2014, the Court pronounced Garraway's punishment!® Garraway

was sentenced to the Texas Department of Criminal Justice's Institutional Division

for 2 years for the lesser-included offense of theft and was fined $1,500, to be paid

joint and severally? Garrawayappeals his conviction. A notice of appeal was filed on

September 12,2014.^ Appellant's brief was filed on January 16, 2015.




^CR4.
^CR4-7.
^2RR4.

^ 7 RR 67.
®8RR4.
^8RR4-5.
^CR73.
                                                                              Page 2
                              STATEMENT OF FACTS

         The defendant testified and admitted to all elements except for entry into the

habitation.^ The State further adopts the Appellant's Statement of Facts.


                                ISSUES PRESENTED

         Theft is a lesser included offense of burglary of a habitation by entering and

committing theft. All the facts and elements required to prove theft are required to

prove the charged offense of burglary of a habitation by entering and committing

theft.


         Business records are properly used as evidence as an exception to the hearsay

rule when proved by testimony from any qualified person, including a law

enforcement officer and pawn shop employee. The trial court did not abuse its

discretion when he admitted the authenticated records. When business records are

voluminous, the trial court has the discretion to admit sunamaries to aid the jury in

using the records.

         Witnesses are allowed to testify to what they did, how they did what they did,

and why. This testimony is not hearsay.

         In a trial, evidence legally sufficient to prove elements may come from many

different witnesses, proving different required elements. No one person is required to

offer evidence to any specific element, and a jury is allowed to make their decision


^6RR76-111.
                                                                                Page 3
from all the evidence. The jury determined the witnesses' credibility and gave the

appropriate weight to the evidence. The jury properly found the defendant guilty

based on the totality of evidence.


                                      ARGUMENT

                     STATE'S RESPONSE TO POINT OF ERROR I

THEFT       IS   A    LESSER    INCLUDED        OFFENSE     OF   BURGLARY         OF   A
HABITATION.

       Appellant erroneously claims in his first issue that theft is not a lesser included

offense ofburglary. An offense is a lesser included offense if it is established by

proof of the same or less than all the facts required to establish the commission of the

offense charged.The elements of the offense actually charged must be compared to

the statutory elements ofthe possible lesser included offense.       The     Court     of

Criminal Appeals came to the same conclusion with burglary and separate felonies

committed within the burglaries. In Langs v. State,the court used the Blockburger

test to determine if the underlying felonies in burglaries were lesser included

offenses:


       It is well-settled that a defendant may not be punished for both the underlying
       felony and burglary if the burglary allegation is that the defendant entered a
       home without the consent of the owner and then committed the underlying
       felony within the home as defined in § 30.02(a)(3). [....] Under Blockburger,
       burglary under Section 30.02(a)(3) requires proof of a fact that the felony

  Tex. Code Crim. Proc. Ann. Art. 37.09 (West 2006).
  Hallv. State, 225 S.W.3d 524 (Tex. Crim. App. 2007).
  Langs V. State, 183 S.W.3d 680 (Tex. Crim. App 2006).
                                                                                   Page 4
       charge does not, namely, entry without consent. However, to prove the
       burglary charge, the State must prove all of the elements of the underlying
       felony. Thus, the felony offense would not require proof of an additional
       element that the burglaryoffense does not also require.'^
This Court of appeals has cometo a similarconclusion in Shelby v. State}'^               To

prove burglary of a habitation, the State must show that the defendant entered a

habitation and committed a felony, thefl or assault.'^         In the current case, all counts

within the indictment stated "did enter a habitation without the effective consent of


Victim], the owner thereof, with intent to commit theft, did attempt to commit thefl,

and did commit theft}^       In Mitchell v. State, the defendant was charged with

burglary of a habitation by entering and committing and attempting to commit the

felony offense of aggravated assault}^ He pled guilty without a plea bargain to the

underlying aggravated assault with a deadly weapon. He was sentenced and

appealed. The Court determined that aggravated assault with a deadly weapon was a

lesser-included offense of burglary. The Court pointed out that the same facts would

have to be proven for aggravated assault and burglary by entering and committing

aggravated assault.



    at 686.
   Shelby v. State, 2007 WL 2141291 (Tex. App.—Austin 2007) (not designated for publication)
(holding a conviction for burglary of a habitation by the commission of an assault and conviction
for the underlying assault create a double jeopardy violation).
  Tex. Penal Code Ann. § 30.02 (West 2011).
  (CR 4) (emphasis added).
  Mitchell V. State, 137 S.W.3d 842 (Tex. App.—Houston [1'' Dist.] 2004, pet. refd).
   Tex. Penal Code Ann. § 30.02(a)(3).
''Id.
                                                                                         Page 5
           To prove theft, the State must show that the defendant unlawfiilly appropriated

property with intent to deprive the owner of said property.^" When theft amounts are

obtained pursuant to one scheme or continuing course of conduct, whether from the

same or several sources, the amounts may be aggregated in determining the grade of

theft.''

           In the present situation, like the Langs case, burglary under Texas Penal Code

Ann. § 30.02(a)(3) requires proof of a fact that the theft charge does not, namely,

entry without consent. To prove the burglary by entering and committing theft, the

State had to prove all the elements of the underlying theft. Therefore, theft is a lesser

included offense.


           The Texas Court of Criminal Appeals has stated theft is a lesser included

offense of burglary, but only when it is an element of the burglary, and not when

burglary is charged as burglary with the intent to commit theft.'' Dixon v. State cites

Ex parte Sewell for the proposition that theft may be a lesser included offense of

burglary of a habitation if the theft is alleged.'^ However, Dixon misreads Exparte

Sewell to require a burglary indictment to allege the value of the items along with

their description.'"^ Before 1973, an indictment for burglary of a habitation had to


  Tex. Penal Code Ann. § 31.03 (A)(1).
^'Id.
" ExparteSewell, 606 S.W.2d 924 (Tex. Crim. App. 1980).
   Dixon V. State, 43 S.W.3d 548, 551 (Tex. App.—^Texarkana 2001, no pet.).
''Id.
                                                                                   Page 6
allege all the elements of the theft in the indictment.Sewell discusses a 1955

burglary indictment.^^ Sincethe new adoption of the Penal Code of 1973, the State is

now onlyrequired to allege the accused committed theft?^

      Other Courts of Appeal have held similarly in aggravated robbery cases. In

Bonner v. State, the Court affirmed the denial of Appellant's request for a lesser

included offense on theft in an aggravated robbery case because: "Appellant

presented no other evidence at trial, nor did the State, as to the value of the property

stolen which is a required element of class-A misdemeanor theft. As a result,

appellant could not have been found guilty of class-A misdemeanor theft which must

be shown to meet the second prong of the Royster test.         In Williams v. State, the

Court found error in the trial court's denial of the requested instruction on the lesser

included offense of theft in an aggravated robbery case, despite that fact that the

indictment did not allege the description or value of the stolen items.^^ The court

held that it was harmfiil error because the evidence showed the value of the property

would have fallen in the misdemeanor range.^°




  Gonzales v. State, 517 S.W. 2d 785 (Tex. Crim. App. 1975), Exparte Donahue, 602 S.W.2d 265
(Tex. Crim. App. 1980 ); Mitchell v. State, 2)1 S.W.2d 1018 (1931).
  Ex parte Sewell, at 924.
  Davila v. State, 547 S.W.2d 606 (Tex. Crim. App. 1977).
  Bonner v. State, 820 S.W.2d 25, 27 (Tex. App.—Houston [14th Dist] 1991).
  Williams V. State, 314 S.W.3d 45, 53 (Tex. App.—Tyler 2010).

                                                                                    Page 7
       In Ramirez v. State, the Court held that the trial court properly refused the

request for an instruction on the lesser-included offense of theft, "Because there is no

evidence of the value of the truck stolen by appellant." But the court went on to hold

that "we can think of no strategic reason for counsel's failure to examine the

witnesses on this issue.     This holding implies that counsel's proffer of evidence on

value would have then made a lesser-included offense of theft a viable charge,

despite the indictment's containing no such allegation.

       The determining factor as to whether theft is a lesser included offense of

burglary of a habitation is whether the indictment alleges a completed theft, and if so,

is there evidence that a jury could determine the degree of theft based on proper

value. This indictment did allege a completed theft, and evidence indicating value of

the items stolen was admitted. Thus, Appellant's claim fails.


                 STATE'S RESPONSE TO POINT OF ERROR H

THE JURY CHARGE PROPERLY ALLEGED THE THEFT ELEMENTS.

       Appellant also argues that the court's charge failed to require a unanimous

verdict. Appellant erroneously cites claiming a jury charge must require a jury to

find beyond a reasonable doubt which definition of "unlawftil" is relied upon.

Young, Evans, and Hill do not discuss that issue.^^ Those cases discuss how the State


  Ramirez v. State, 422 S.W.3d 898, 902 (Tex. App.—^Houston[14th Dist] 2014, pet. refd).
  Young V. State, 621 S.W.2d 779 (Tex. Crim. App. 1981); Evans v. State, 606 S.W.2d 880 (Tex.
Crim. App. 1980); Hill v. State, 625 S.W.2d 803 (Tex. App.—Houston [14^^ Dist] 1981).
                                                                                        Page 8
may allege "theft" in a burglary charge or may list the elements of theft in the

charging document. In the present case, the indictment alleged "theft."

        The State is only required to allege "unlawftilly appropriate," and not the

circumstances that make it unlawftiL" A defendant charged with a "theft" indictment

that lists "unlawftilly appropriates property with the intent to deprive" can be found

guilty by proving the actor's initial taking, or receipt knowing the property was

stolen, or neither, as long as all the elements were proven.^"^ The definitions of

unlawftil are only evidentiary circumstances, not acts, and a defendant is not entitled

to have them in the charging instrument.^^ The Court of Criminal Appeals has

previously explained in another case:

         I]t can be seen that whatever theory the State presents as to how the offense
        occurred is irrelevant. So long as the evidence is sufficient to prove that
        appellant unlawftilly appropriated the property in question with the "intent to
        deprive the owner of the property" appellant's conviction must stand. It is
        immaterial whether the State's theory at trial and the evidence offered involve
        theft as it is described in Section 31.03(b)(1), or theft as it is described in
        Section 31.03(b)(2).^®

        Appellant cites Kent v. State for the proposition that each individual item and

person must be found unanimously by a jury because they are required elements of a

theft charge by aggregation.        This case is contrary to Kellar v. State, which stated


" Milton V. State, 652 S.W.2d 958 (Tex. Crim. App. 1983).
  McClain v. State, 687 S.W.2d 350 (Tex. Crim. App. 1985).
  Id.
^^ Bergv. State, lAl S.W.2d 800, 809 (Tex. Crim. App. 1988).
   Kent V. State, 447 S.W.3d 408 (Tex. App.—Houston [14*^ Dist.] 2014) (pet. granted).
                                                                                         Page 9
the element is the continuing course of conduct, and not the specific acts of theft that

are aggregated.^^ On February 4, 2015, the Court of Criminal Appeals granted the

State's petition for discretionary review ofKent.


                 STATE'S RESPONSE TO POINT OF ERROR m

BUSINESS RECORDS AND SUMMARIES WERE PROPERLY ADMITTED.


       In issue three, Appellant argues that the trial court abused his discretion by

admitting business records. A trial court's decision to admit or exclude evidence is

reviewed under an abuse of discretion standard. Admitting evidence is an abuse of

discretion if the determination Ues outside the zone of reasonable disagreement.^^

       Business records are any memorandum, report, record, or data compilation, in

any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time

by, or from information transmitted by, a person with knowledge, if kept in the

course of a regularly conducted business activity, and if it was the regular practice of

that business activity to make the memorandum, report, record, or data compilation

all as shown by the testimony of the custodian or other qualified witness, [...] unless

the source of information or the method or circumstances of preparation indicate lack

of trustworthiness.'^®




  Kellarv. State, 108 S.W.3d 311, 313 (Tex. Crim. App. 2003).
  Martinez v. State, 327 S.W.3d 727 (Tex. Crim. App. 2010).
  Tex. R. Evid. 803(6).
                                                                               Page 10
       State's Exhibit No. 36 was a 57 page compilation of data, referred to as Leads

Online. Detective Adrian Marin and five pawn shop employees explained what data

is collected by an employee during a business transaction, both pawning and

selling.'*^ Detective Marin and Richard Barker explained that Leads Online is a

compilation of that data."^^ Pawning, selling and purchasing items is the normal

business of pawn shops. The detective and the pawn shop employee said it was a

normal pawn shop duty to collect the data and maintain that data in Leads Online."^^

       No evidence suggests that the Leads Online records were untrustworthy. In

contrast. Detective Marin and later Detective Mark Jarman both said they obtained

the business records, and then verified the records personally by going to the pawn

shop locations to identify the transactions at each location and obtain the listed

property.'*'^ Their efforts fiirther verified the accuracy of the business records. Thus,

the trial court did not abuse his discretion in admitting the business records pursuant

to Texas Rules ofEvidence 803(6).'^^

       A summary presents the contents of voluminous and admissible writings,

recordings, or photographs, which cannot conveniently be examined in court.'^®

State's Exhibit No. 36, the business records, were admitted. The originals were


'^'5RR62, 67, 73,77,81,118.
'^^5RR78, 119.
^^5RR78,119.
^'*5RR119,164.
  Tex. R. Evid. 803(6).
  Tex. R.EVID. 1006.
                                                                                Page 11
produced in court/^ The documents were a voluminous collection of addresses,

dates, item descriptions, and ticket numbers. Most pages listed multiple transactions.

The two summaries were different compilations of those addresses, transactions,

dates and items totaling 1 page for State's Exhibit No. 37 and 4 pages for State's

Exhibit No. 41. These summaries allowed a convenient examination of the data in

court. The trial court did not abuse his discretion admitting the business records

pursuant to Texas Rules of Evidence 803(6) and 1006."*®                If    the     records       and

summaries were improperly admitted, this error would not constitute reversible error.

"It is well established that the improper admission of evidence does not constitute

reversible error if the same facts are shown by other evidence which is not

challenged.'"*^ Detective Marin, Detective Jarman, the codefendant, Justin Kajileh,

pawn shop employees and the defendant all testified to the same items and sales

within the records, which were also supported by surveillance videos showing the

same. Appellant's claim fails.


                  STATE'S RESPONSE TO POINT OF ERROR IV

THE COURT DID NOT ADMIT HEARSAY THROUGH THE CODEFENDANT
TESTIFYING ABOUT CONSENT TO ENTER HABITATIONS.


   The defense attorney by a reference indicates he had seen them before. 5 RR 128 (stating "Your
Honor, that's got hearsay from probably 50 to 60 different sources; [..The author of this brief
was the trial attorney, and as an officer of the court, will represent the defense attorney was provided
a copy of those documents prior to trial.
  Tex. R. Evid. 803(6); Tex. R. Evid.1006.
   Crocker v. State, 573 S.W.2d 190, 201 (Tex. Crim. App. 1978); See also Tapps v. State, 257
S.W.3d 438 (Tex. App. —^Austin 2008, pet. granted).
                                                                                             Page 12
       The Confrontation Clause as interpreted through Crawford v. Washington

apphes to testimonial hearsay.^° Hearsay is a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the truth

of the matter asserted.^'

       The codefendant, Justin Kajileh, testified during the trial no one had given

Appellant and him consent to enter any habitations/^ He testified to his personal

knowledge that no consent had been given. Justin Kajileh's testimony showed that

no out of court statements existed. Appellant fails to point to any testimony by Justin

Kajileh regarding any statement by any out of court declarant. Furthermore, Justin

Kajileh was cross-examined. There was no hearsay and no confrontation violation.

Thus Appellant's claim fails.


                     STATE'S RESPONSE TO POINT OF ERROR V

THE DETECTIVE'S TESTIMONY TO WHOM AND HOW HE RETURNED
STOLEN PROPERTY WAS NOT HEARSAY.

       The Confi-ontation Clause as interpreted through Crawford v. Washington

applies to testimonial hearsay." Hearsay is a statement, other than one made by the




  Crawford V. Washington, 541 U.S. 36 (2004).
^^Tex.R.Evid. 801.
  5 RR 86.
  Crawford, at 36.
                                                                                 Page 13
declarant while testifying at the trial or hearing, offered in evidence to prove the truth

of the matter asserted.^'^

       Detective Jarman identified the individuals from whom property was stolen.^^

He testified as to specifically what property he returned and specifically to whom.^^

At no time did he recite any statements that any of the victims made to him. He was

allowed to testify to what he did, and how he did it, and to whom he spoke.

Detective Jarman's testimony was not hearsay. Furthermore, he was cross-examined

so there could not have been a confrontation clause violation. Thus, Appellant's

claim fails.



                 STATE'S RESPONSE TO POINT OF ERROR VI

THE EVIDENCE WAS LEGALLY SUFFICIENT TO CONVICT GARRAWAY
OF THEFT OF PROPERTY VALUED AT $1,500.00 OR MORE BUT LESS
THAN $20,000.00.

       In his final issue, Appellant argues that the evidence was legally insufficient.

Evidence is legally sufficient if, considering all of the evidence in the light most

favorable to the verdict, a jury was rationally justified in finding guilt beyond a

reasonable doubt." The Code of Criminal Procedure states direct evidence is not




^"•tex. R.EVID. 801.
  6 RR 27.
^^6RR27.
" Brooks V. State, 323 S.W.3d 893 (Tex. Crim. App. 2010).


                                                                                 Page 14
required and circumstantial evidence may be used to prove lack of consent in theft

cases alleging a continuing scheme or course of conduct/^

       The evidence was legally sufficient to identify the victims, prove lack of

consent, and the value of the property. Five victims testified/® Detective Jarman

testified to the other victims' identities, how he obtained them, and that he returned

their property to them.^° The codefendant testified neither he nor the defendant had

consent to take any of the victims' property.®' Both defendants sold items to pawn

shops; they did not pawn the items. When selling the items, they affirmed they were

the owners of the property sold." Detective Mark Jarman testified to the new value

of many of the stolen electronics, and calculated the money value the two defendants

received fi-om the pawn shops at $2,875." The Leads Online Exhibit number 36

listed the pay out to the defendants fi^om the pawn shops. The codefendant testified

to the value of the electronics and affirmed that he agreed with the individual pawn

records and the payout the detective determined they received.        Above all, the

defendant testified, and admitted to everything but entry into the habitations.®''




  Tex. Code Crim. Proc. Art. 38.39.
  4 RR 38, 4 RR 46, 4 RR 54, 4 RR 69, 4 RR 75.
  6 RR 27.
  5 RR 86.
  State's Exhibits No. 30, 31, 33, 34, and 35.
"6RR71.
®^6RR 76-111.
                                                                              Page 15
Viewing this testimony in a Hght most favorable to the verdict, the jury was rationally

justified in finding guilt beyond a reasonable doubt. Appellant's final claim fails.


                                     CONCLUSION

       The judge properly charged the jury with the lesser included offense of theft.

The Court did not abuse it's discretion in adniitting evidence. The evidence was

legally sufficient to support a finding of guilt.


                                        PRAYER

       Wherefore, premises considered, the State respectfiilly prays that the Court

overrule Appellant's issues, AFFIRM the trial court, and grant the State all relief to

which it is justly entitled.

                                          Respectfiilly submitted.



                                          Ben Moore
                                          Asst. Criminal District Attorney
                                          712 S. Stagecoach Trail, Suite 2057
                                          San Marcos, Texas 78666
                                          State Bar No. 24042522
                                          benjamin.moore@co.hays.tx.us
                                          Attorney for the State of Texas




                                                                                Page 16
                    CERTIFICATE OF COMPLIANCE WITH
                           TEX.R.APP.PROC.. RULE 9.4

       I certify that this brief contains 2^ 1^1 words, exclusive of the caption,
identity of parties and counsel, statement regarding oral argument, table of contents,

index of authorities, statement of the case, statement of issues presented, statement of

jurisdiction, statement of procedural history, signature, proof of service, certification,

certificate of compliance, and appendix.




                                         Ben Moore
                                         Asst. Criminal District Attorney




                           CERTIFICATE OF SERVICE

       I certify that a true copy of the foregoing brief has been e-delivered to:




Ellic Sahualla
600 West 13*^ Street
Austin, Texas 78701
on this the        day of March, 2015.




                                         Ben Moore
                                         Asst. Criminal District Attorney


                                                                                    Page 17
