                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-14-00423-CR


JEREMIAH LEONARD MARTINEZ                                             APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


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             FROM THE COUNTY COURT AT LAW OF WISE COUNTY
                       TRIAL COURT NO. CR-70576

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                         MEMORANDUM OPINION1

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                                   I. Introduction

      Appellant Jeremiah Leonard Martinez appeals his conviction for theft. In

two points of error, Martinez contends that (1) the trial court erred by denying his

motion for directed verdict and (2) the jury charge was fundamentally defective.

We affirm.


      1
       See Tex. R. App. P. 47.4.
                                   II. Background

      On April 30, 2013, Annie Cook was working security at the Wal-Mart in

Decatur, Texas, when she noticed two individuals, one male and one female,

tampering with packages and looking around nervously. The suspects were later

identified as Martinez and his wife, Velina.     At trial, Cook testified that she

followed the suspects throughout the store. Both Martinez and his wife had a

cart, and Cook observed the couple pick up items and place them in the carts.

After about an hour, Martinez placed a cooler in his cart and proceeded to the

electronic section; Cook stated that he stopped in front of the phone display,

picked up the cooler and set it on the side of the shopping cart, and began

placing all the items in the basket into the cooler. After the cooler was filled,

Cook observed Velina leave and return a short time later with another cooler and

fill it up with the merchandise in her cart.

      After all the items were placed in the coolers, Cook followed the couple

toward the front of the store. Cook told the jury that she saw Martinez look

around, bypass the registers, and head straight for the door.       Martinez was

behind his wife, and therefore, Velina was the first to walk through the doors into

the vestibule. As soon as Velina walked through the theft detectors and the first

set of doors, Cook stepped in front of her cart blocking her exit. Cook testified

that she attempted to talk to both Martinez and his wife, but they refused to stay

and left without making any attempt to pay.




                                           2
         After Cook described the events she witnessed, the State played the

surveillance video for the jury. The video showed Martinez and his wife fill their

carts with merchandise, conceal the merchandise in the coolers, and then

attempt to leave the store. The jury saw Cook stop the suspects as she had

described, as well as Martinez and his wife abandoning the carts and leaving the

store.

         The jury found Martinez guilty of theft of property valued at more than $500

but less than $1,500. The trial court accepted the verdict, sentenced him to one

year in jail, and assessed a $4,000 fine.

                                 III. Directed Verdict

         Martinez asserts that the trial court erred by denying his motion for directed

verdict because the evidence failed to satisfy all the elements of the offense

charged.

A. Standard of Review

         A challenge to the denial of a motion for instructed verdict is actually a

challenge to the sufficiency of the evidence. Canales v. State, 98 S.W.3d 690,

693 (Tex. Crim. App.), cert. denied, 540 U.S. 1051 (2003). In our due-process

review of the sufficiency of the evidence to support a conviction, we view all of

the evidence in the light most favorable to the verdict to determine whether any

rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,

2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). This


                                            3
standard gives full play to the responsibility of the trier of fact to resolve conflicts

in the testimony, to weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Dobbs,

434 S.W.3d at 170.

      We measure the sufficiency of the evidence by the elements of the offense

as defined by the hypothetically correct jury charge for the case, not the charge

actually given. Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011) (citing

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)); see Crabtree v.

State, 389 S.W.3d 820, 824 (Tex. Crim. App. 2012) (“The essential elements of

the crime are determined by state law.”). Such a charge is one that accurately

sets out the law, is authorized by the indictment, does not unnecessarily restrict

the State’s theories of liability, and adequately describes the particular offense for

which the defendant was tried. Byrd, 336 S.W.3d at 246. The law as authorized

by the indictment means the statutory elements of the charged offense as

modified by the factual details and legal theories contained in the charging

instrument. See Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App.

2013); see also Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014)

(“When the State pleads a specific element of a penal offense that has statutory

alternatives for that element, the sufficiency of the evidence will be measured by

the element that was actually pleaded, and not any alternative statutory

elements.”).




                                           4
B. Analysis

      Martinez argues that the evidence failed to establish (1) who owned the

property and (2) that the property was appropriated unlawfully.

      1. Ownership

      Martinez asserts that the State presented no evidence that Cook was the

owner of the property.     Specifically, Martinez contends that there was no

evidence that she had a greater right to possession, as alleged in the

information.

      The penal code defines theft as the unlawful appropriation of property with

the intent to deprive the owner of the property. Tex. Penal Code Ann. § 31.03(a)

(West 2011 & Supp. 2014); see also Tex. Penal Code Ann. § 1.07(35) (West

2011 & Supp. 2014) (defining “owner” as “a person who has . . . a greater right to

possession of the property than the actor”).

      When a corporation is the actual owner, an allegation of ownership in a

“special owner” is sufficient. See Jackson v. State, 270 S.W.3d 649, 657 (Tex.

App.—Fort Worth 2008, pet. ref’d) (holding that an allegation of ownership may

be in an actual owner or a special owner); see also Tex. Code Crim. Proc. Ann.

art. 21.08 (West 2009) (allowing an allegation of theft to be made in either the

person who owns the property or another person who has possession of the

property belonging to another).2


      2
      An actual owner is one who owns the property; whereas, a “special
owner” is an individual, such as an employee, who is in care, custody, or control

                                        5
        Here, Cook testified that she was employed at Wal-Mart as its “security

asset protection person” at the time the offense occurred. This testimony was

sufficient to establish Cook as a special owner of the property with a greater right

to possession of it than Martinez. See Gonzalez. v. State, No. 13-11-00599-CR,

2013 WL 6834798, at *5 (Tex. App.—Corpus Christi July 29, 2013, pet. ref’d)

(mem. op., not designated for publication) (holding that when a loss prevention

officer is the employee of the title owner, the evidence is sufficient to show that

the employee had a greater right of possession to the property than the

defendant); Castle v. State, 718 S.W.2d 86, 88 (Tex. App.—Fort Worth 1986, no

pet.) (holding that an employee’s position as a security guard employed by the

department store was sufficient to establish her as a special owner); see also

Smallwood v. State, 607 S.W.2d 911, 914 (Tex. Crim. App. 1979) (holding that

security guard, as an employee of Dillard’s, had a greater right of possession to

the property than appellant did).

        2. Consent

        Martinez also argues that there is no evidence that the appropriation of the

property was without Cook’s effective consent because she did not testify to

such.

of the property belonging to another person or a corporation. Liggens v. State,
50 S.W.3d 657, 660 (Tex. App.—Fort Worth 2001, no pet.); see also Harrell v.
State, 852 S.W.2d 521, 523 (Tex. Crim. App. 1993); Roberts v. State, 513
S.W.2d 870, 871–72 (Tex. Crim. App. 1974).




                                          6
      “Effective consent” is “consent by a person legally authorized to act for the

owner.” Tex. Penal Code Ann. § 31.01(3) (West 2011 & Supp. 2014). Lack of

consent in theft cases may be proven by direct evidence or circumstantial

evidence.   Taylor v. State, 508 S.W.2d 393, 397 (Tex. Crim. App. 1974)

(overruling cases holding that proof of consent may only be shown through direct

evidence); see also Hudson v. State, No. 05-14-00224-CR, 2015 WL 1313984, at

*4 (Tex. App.—Dallas Mar. 20, 2015, no pet. h.) (mem. op., not designated for

publication) (noting that the State may prove lack of consent by direct or

circumstantial evidence); Silva v. State, No. 08-04-00366-CR, 2006 WL 2080075,

at *2 (Tex. App.—El Paso July 27, 2006, no pet.) (op., not designated for

publication) (same).

      Here, Cook testified that it was her job to keep theft from happening at the

store. She stated that she watched Martinez and his wife for about an hour, and

when Martinez and his wife tried to leave the store, she stopped them. The jury

also saw the surveillance video, which confirmed her testimony.

      Given Cook’s actions in preventing Martinez from leaving the store with the

merchandise, along with her testimony that it was her job to prevent merchandise

from being stolen, there was sufficient evidence to prove that Cook did not give

her effective consent. See Ashby v. State, 604 S.W.2d 897, 898 (Tex. Crim.

App. 1979) (holding that there must be some evidence in the record to support

the lack of consent but that the State’s witnesses do not have to articulate the

magic words “effective consent” and the lack thereof).


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      Viewing the evidence in the light most favorable to the verdict, we hold that

a rational trier of fact could have found beyond a reasonable doubt that (1) Cook

was a special owner and (2) Martinez took the property without her effective

consent. Therefore, we overrule Martinez’s first point of error.

                                  IV. Jury Charge

      In his second point of error, Martinez asserts that the jury charge was

fundamentally defective because it did not include all of the essential elements.

Specifically, he argues that the information is fundamentally defective because it

omits the phrase “without the effective consent of the owner,” and because the

jury charge references the information,3 it too is fundamentally defective for

failing to charge the jury on “all of the essential elements of the offense.”

A. Standard of Review

      “[A]ll alleged jury-charge error must be considered on appellate review

regardless of preservation in the trial court.” Kirsch v. State, 357 S.W.3d 645,

649 (Tex. Crim. App. 2012). In our review of a jury charge, we first determine

whether error occurred; if error did not occur, our analysis ends. Id. If error

occurred, whether it was preserved determines the degree of harm required for


      3
       The jury charge read as follows:

      [I]f you believe from the evidence beyond a reasonable doubt, that
      on or about the 30th day of April, 2013, in the County of Wise, and
      State of Texas, as alleged in the information, Jeremiah Leonard
      Martinez, did then and there unlawfully appropriate, by acquiring or
      otherwise exercising control over, property, to-wit . . . . [Emphasis
      added]

                                          8
reversal. Id. Unpreserved charge error warrants reversal only when the error

resulted in egregious harm. Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim.

App. 2013); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op.

on reh’g); see Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006).

B. Analysis

      One of the three ways the code defines appropriation as unlawful is if it is

without the owner’s consent. See Tex. Penal Code Ann. § 31.03(b)(1) (West

2011 & Supp. 2014).

      Martinez cites Bradley to support his assertion that an indictment for theft

is fundamentally defective if it fails to allege that the taking was without the

owner’s effective consent. Bradley v. State, 560 S.W.2d 650, 651 (Tex. Crim.

App. 1978) (holding that “[a]n indictment for theft which does not allege that the

taking was without the owner’s effective consent is fundamentally defective”).

Martinez’s reliance on Bradley, however, is misplaced. More than thirty years

have passed since the Court of Criminal Appeals retreated from Bradley.4 See

McClain v. State, 687 S.W.2d 350, 355 (Tex. Crim. App. 1985) (stating that

section 31.03(b)(1) and (2)5 are only “circumstances surrounding the conduct,”


      4
        See Tex. Disciplinary Rules Prof’l Conduct R. 3.03(a)(4) & cmt. 3,
reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A (West 2013) (Tex. State
Bar R. art. X, § 9).
      5
       Not relevant here, the code also defines appropriation as unlawful if “the
property is stolen and the actor appropriates the property knowing it was stolen
by another.” Tex. Penal Code Ann. § 31.03(b)(2) (West 2011 & Supp. 2014).


                                         9
and do not “constitute ‘acts or omissions’ of the defendant” and therefore “have

evidentiary import only in terms of establishing the ‘unlawfulness’ of the

appropriation, and the defendant is not entitled to have them expressed in the

State’s charging instrument as a matter of ‘form’”); see also Ex parte Luna, 784

S.W.2d 369, 371 (Tex. Crim. App. 1990) (holding that “failure to allege that the

property was appropriated without the owner’s effective consent does not render

the indictment fundamentally defective”); Berg v. State, 747 S.W.2d 800, 809

(Tex. Crim. App. 1984) (holding that “[t]he State need only prove the offense as

stated in Section 31.03(a).      To plead . . . the offense in terms of Section

31.03(b)(1) and (2) is to plead evidentiary matters which are surplusage and in

point of fact give the accused more notice than is constitutionally required”).

      The information in this case read as follows:

      I, James Stainton/Robert Carper, County Attorney of Wise County,
      Texas, on the written affidavit of Alan Wilson, a competent and
      credible person, herewith filed in the County Court at Law of Wise
      County, Texas, do present in and to said Court that on or about the
      30th day of April, 2013, and before the making and filing of this
      information in the County of Wise and the State of Texas, Jeremiah
      Leonard Martinez, Defendant, did then and there unlawfully
      appropriate, by acquiring or otherwise exercising control over,
      property, to-wit: miscellaneous merchandise, of the value of $500 or
      more but less than $1,500, from Annie Cook, who had the right of
      possession and control, the owner thereof, with intent to deprive the
      owner of the property. [Emphasis added.]

      Here, the State’s information alleged all the elements necessary to

constitute theft. See Geick v. State, 349 S.W.3d 542, 546 (Tex. Crim. App. 2011)

(“In order to charge theft, absent a notice-based motion to quash, a charging



                                         10
instrument need allege only the statutory elements of the offense: the charged

person unlawfully appropriated property with the intent to deprive the owner of

property.”); Ex parte Luna, 784 S.W.2d at 371 (holding that “in theft cases, the

State need only allege that the person (1) unlawfully appropriated property (2)

with the intent to deprive the owner of the property”).

       Furthermore, in addition to the essential elements, the court’s charge also

included the definition of unlawful appropriation: “Appropriation of property is

unlawful if it is without the owner’s effective consent.” Therefore, we hold that

neither the information nor the jury charge contained error on the ground stated.

       Having found no error, our analysis ends. We overrule Martinez’s second

point of error.

                                  V. Conclusion

       Having overruled both of Martinez’s points of error, we affirm the trial

court’s judgment.



                                                    /s/ Bonnie Sudderth
                                                    BONNIE SUDDERTH
                                                    JUSTICE

PANEL: GARDNER, WALKER, and SUDDERTH, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 30, 2015




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