Opinion filed November 21, 2013




                                     In The


        Eleventh Court of Appeals
                                  __________

                              No. 11-11-00324-CR
                                  __________

                    SHERRY ANN WEEKS, Appellant

                                        V.

                    THE STATE OF TEXAS, Appellee


                     On Appeal from the 39th District Court
                           Stonewall County, Texas
                         Trial Court Cause No. 1886


                     MEMORANDUM OPINION
      The jury convicted Sherry Ann Weeks of the lesser included offense of theft
of property of the value of $500 or more but less than $1,500. Prior to sentencing,
Appellant and the State agreed to the terms of punishment, and in accordance with
the agreement, the trial court assessed Appellant’s punishment at confinement for
one year, but suspended the imposition of the sentence and placed Appellant on
community supervision for two years. The trial court also ordered Appellant to
pay restitution and court costs, including the cost of Appellant’s court-appointed
attorney. In four issues, Appellant challenges the sufficiency of the evidence to
support her conviction, the rejection of her mistake-of-fact defense, the compostion
of the grand jury, and the trial court’s assessment of costs. We affirm.
      Cindy Hill hired Appellant to do work on several different properties that
Hill either owned or leased. In her job with Hill, Appellant worked as a gardener,
cared for dogs, maintained a hunting cabin, cooked for the hunters who rented the
cabin, helped with cattle, and cleaned out barns. When Appellant told Hill that she
was scrapping junk iron for extra money, Hill told Appellant that she could have
all of her junk iron. Appellant and her friend, Ken Hayes, took iron from several
properties owned by Hill and sold it as scrap iron.
      Hill leased some property from George Charles Abernathy. The property
was known as the “sewer farm”; the City of Aspermont used a part of the property
to maintain their sewer system. A 1950s era tractor was on the property. There is
evidence in the record that Appellant and Hayes spent three days digging the
tractor out of the mud so that they could sell it for scrap.
      On the first day that Appellant and Hayes began to dig the tractor out of the
mud, Roy Hernandez, a City of Aspermont employee, was on the property working
on the City’s sewer system. Appellant talked to Hernandez to find out why he was
there. During that conversation, Appellant mentioned to Hernandez that she was
there to check fences for Hill.
      After three days of digging, Hayes finally got the tractor out of the mud. He
took the tractor to a scrap yard to sell it. However, while in the parking lot of the
scrap yard, he ran into Toby Wetzel, a man who dealt in old tractors. Wetzel
bought the tractor from Hayes for $700.

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      Hernandez notified Abernathy that the tractor had been taken from the sewer
farm property. After Abernathy reported the theft to law enforcement authorities,
Stonewall County Sheriff Bill Mullen discovered that someone had sold a similar
tractor in the parking lot of a nearby scrap yard to a man named Toby Wetzel.
Wetzel told Sheriff Mullen that Hayes still had possession of the tractor because
Wetzel did not have a trailer to bring it home when he bought it, and Wetzel called
Hayes to find out where the tractor was located at that time. Sheriff Mullen found
the tractor and seized it.
      In her first issue, Appellant challenges the sufficiency of the evidence to
establish that she unlawfully appropriated the tractor. We review both legal and
factual sufficiency claims under the standard of review set forth in Jackson v.
Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.
App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—Eastland 2010,
pet. ref’d). Under the Jackson standard, we examine all of the evidence in the light
most favorable to the verdict and determine whether, based on that evidence and
any reasonable inferences from it, any rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at
319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). We apply the
Jackson standard of review in criminal cases when we review the evidence
supporting the elements of the offense that the State must prove beyond a
reasonable doubt. Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013).
      The offense of theft occurs when a person unlawfully appropriates property
with the intent to deprive the owner of that property. TEX. PENAL CODE ANN.
§ 31.03(a) (West Supp. 2013). The appropriation is unlawful when it is without
the owner’s effective consent. Id. § 31.03(b)(1). Intent at the time of the incident
is usually proven through circumstantial evidence and must generally be inferred
from the surrounding circumstances. Hernandez v. State, 819 S.W.2d 806, 810

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(Tex. Crim. App. 1991). When the jury is charged on the law of parties, as in this
case, we may look to events that occurred before, during, or after the commission
of an offense and may infer participation from the circumstances. Beardsley v.
State, 738 S.W.2d 681, 683 (Tex. Crim. App. 1987). “Circumstantial evidence
may be sufficient to show that [a person] is a party to an offense.” Id. at 684.
       Here, the owner of the tractor testified that he had not given anyone
permission to remove the tractor. Before removing the tractor, Appellant told
Hernandez that she was mending a fence for Hill, but Hernandez never saw them
working on a fence. Hernandez testified that, in his opinion, the situation was
“suspicious.” While the evidence shows that Hayes loaded and sold the tractor,
there is also evidence that Appellant received half of the money from the proceeds
of the sale of the tractor. See Christensen v. State, 240 S.W.3d 25, 32 (Tex.
App.—Houston [1st Dist.] 2007, pet. ref’d) (“In determining whether the
defendant had criminal intent to commit theft, we may consider whether the
defendant experienced personal gain from the property obtained from the
complainants.”). Further, as the State argues, the jury saw pictures of the tractor
and could have concluded that Appellant could not have reasonably believed that
the intact tractor would be in the same category as junk iron.
       After viewing all of the evidence in the light most favorable to the verdict, a
rational jury could have found beyond a reasonable doubt that Appellant, as a
participant or as a party, appropriated the tractor without the consent of the owner
and with the intent to deprive the owner of the property. Accordingly, Appellant’s
first issue is overruled.
       Appellant’s second issue concerns the sufficiency of the evidence to support
the jury’s rejection of her defense of mistake of fact. Appellant argues that she
affirmatively established that she mistakenly believed that Hill owned the land and
that Hill had given her permission to remove the tractor.

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      Mistake of fact is a defense to prosecution. TEX. PENAL CODE ANN. § 2.02,
8.02 (West 2011). It is not an affirmative defense that the defendant must prove
beyond a reasonable doubt. Id. §§ 2.03, 2.04; see also Saxton v. State, 804 S.W.2d
910, 913–14 (Tex. Crim. App. 1991) (distinguishing between defenses upon which
the State carries the burden of persuasion and affirmative defenses upon which the
defendant bears the burden of proof). Once the defendant offers some evidence to
support his defense, the State has the burden of persuasion to disprove the defense.
Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Saxton, 804 S.W.2d
at 913–14. The burden of persuasion does not require the production of evidence
but, instead, requires only that the State prove its case beyond a reasonable doubt.
Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 913–14. The jury’s finding of
guilt is an implied finding against the defensive theory. Zuliani, 97 S.W.3d at 594.
When an appellant challenges the sufficiency of the evidence involving the defense
of mistake of fact, we must view all of the evidence in the light most favorable to
the verdict and determine whether any rational trier of fact could have found
against the appellant on the mistake-of-fact issue beyond a reasonable doubt.
Saxton, 804 S.W.2d at 914.
      Because we have already concluded that a rational jury could have found
beyond a reasonable doubt that Appellant appropriated the tractor without the
consent of the owner and with the intent to deprive the owner of the property, we
also conclude that a rational jury could have found against Appellant on the
mistake-of-fact issue beyond a reasonable doubt. Appellant’s second issue is
overruled.
      In her third issue, Appellant contends that her “conviction should be
reversed and the indictment dismissed because one of the grand jurors who
returned the indictment was a fact witness for the prosecution against [Appellant]
and thus biased against her.” The State argues that Appellant waived this issue

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when she failed to challenge the array before the grand jury was impaneled and,
alternatively, when she failed to move to quash the indictment before trial.
      “Before the grand jury has been impaneled, any person may challenge the
array of jurors or any person presented as a grand juror. In no other way shall
objections to the qualifications and legality of the grand jury be heard.” TEX.
CODE CRIM. PROC. ANN. art. 19.27 (West 2005). The Court of Criminal Appeals
has interpreted this article to mean that the array must be challenged at the first
opportunity, which typically means at the time the grand jury is impaneled.
Muniz v. State, 573 S.W.2d 792, 796 (Tex. Crim. App. 1978) (citing Valdez v.
State, 408 S.W.2d 109 (Tex. Crim. App. 1966)). If the offense was committed
after the grand jury was impaneled or if the accused has not had an opportunity to
challenge the array, the accused may challenge the grand jury by moving to quash
the indictment. Ex parte Covin, 277 S.W.2d 109, 111 (Tex. Crim. App. 1955).
      The record shows that the grand jury that returned the indictment against
Appellant was impaneled after the date of the offense. Thus, Appellant had the
opportunity to challenge the grand jury before it was impaneled. The record does
not show that Appellant sought to challenge the array or that she was deprived of
that opportunity. Appellant argues that she “had no way of knowing, before or
during her trial, that [the witness] had served on her grand jury” and contends that
her “first opportunity to complain” is on appeal. Appellant’s argument is not
rooted in the record but, instead, a conclusion or an explanation for why she failed
to challenge at the first opportunity. Although we note that the trial court did not
appoint counsel to represent Appellant until after the grand jury was impaneled, the
record reveals that Appellant never moved to quash the indictment. Because
Appellant failed to lodge any challenge to the grand jury prior to trial, she has
failed to preserve this issue for our review. Appellant’s third issue is overruled.



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      In her fourth issue, Appellant complains that, because “[t]here was no
evidence presented that [her] financial circumstances materially changed after the
court’s initial finding of indigency,” it was error to order Appellant to pay “for
court-appointed attorney’s fees, expert witness fess, storage costs, restitution or
other costs.” The State responds that Appellant “entered into a plea bargain” for
sentencing; “indicated that she agreed to [the] terms”; and, thus, “cannot now
complain about the terms of the agreement.”
      Appellant is correct that there is a presumption of indigence unless there is a
material change in the defendant’s finances. See TEX. CODE CRIM. PROC. ANN.
art. 26.04(p) (West Supp. 2013). Appellant’s contention, however, ignores the fact
that she agreed to pay certain fees as a term of the agreement reached with the
State. “Plea bargaining flows from ‘the mutuality of advantage’ to defendants and
prosecutors, each with his own reasons for wanting to avoid trial.”
Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978). “In the give-and-take of plea
bargaining, the State cannot unilaterally impose an unconstitutional punishment so
long as the accused is free to accept or reject the prosecution’s offer.” Ex parte
Williams, 637 S.W.2d 943, 948 (Tex. Crim. App. 1982) (orig. proceeding). “A
plea agreement is generally considered a contractual agreement between the state
and a defendant that is presumed to have been knowingly and voluntarily entered
into unless the defendant can show otherwise.” State v. Wilson, 324 S.W.3d 595,
599 (Tex. Crim. App. 2010). The terms of a plea bargain agreement are left to the
parties, and once the accused agrees to the terms and the trial court accepts the plea
bargain, the agreement is a binding and enforceable “contract.” Williams, 637
S.W.2d at 947 (citing Jones v. Estelle, 584 F.2d 687, 689 (5th Cir. 1978)).
      We note that Appellant challenges the trial court’s authority to order the
payment of certain costs but does not challenge the amount that the court ordered
her to pay. The record shows that, after the jury’s verdict but before sentencing,

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Appellant and the State reached an agreement on the terms of punishment.
According to their agreement, the trial court was to set Appellant’s sentence at
confinement for one year in the county jail, suspend imposition of the sentence,
and place Appellant on community supervision for two years. Appellant also
agreed to pay her attorney’s fees and the fee for the expert witness. In addition,
she agreed to reimburse Wetzel for the $700 he paid for the tractor, pay for the cost
to store the tractor until trial, and pay “any cost associated with this trial.” Without
any evidence in the record that indicates otherwise, we conclude that Appellant
knowingly and voluntarily entered into a contract and got that for which she
bargained. Appellant’s fourth issue is overruled.
      We affirm the judgment of the trial court.




                                                      JIM R. WRIGHT
                                                      CHIEF JUSTICE


November 21, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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