                                                                             ACCEPTED
                                                                         03-15-00445-CR
                                                                                 8003651
                                                              THIRD COURT OF APPEALS
                                                                         AUSTIN, TEXAS
                                                                   11/30/2015 9:14:38 AM
                                                                       JEFFREY D. KYLE
                                                                                  CLERK
                    No. 03-15-00445-CR

                 IN THE COURT OF APPEALS              FILED IN
                                               3rd COURT OF APPEALS
            FOR THE THIRD JUDICIAL DISTRICT OF      AUSTIN, TEXAS
                  TEXAS AT AUSTIN, TEXAS       11/30/2015 9:14:38 AM
                                                    JEFFREY D. KYLE
                                                         Clerk
                          ********

RONICESHA CHERRON WEARREN
                            VS.

         THE STATE OF TEXAS
                         ********
         ON APPEAL FROM THE 426th DISTRICT COURT
                 OF BELL COUNTY, TEXAS
                     Cause No. 73,714

                           ******
                   STATE’S BRIEF
                           ******

                          HENRY GARZA
                          DISTRICT ATTORNEY

                          BOB D. ODOM
                          ASSISTANT DISTRICT ATTORNEY
                          P.O. Box 540
                          Belton, Tx 76513
                          (254) 933-5215
                          FAX (254) 933-5704
                          DistrictAttorney@co.bell.tx.us
                          SBA No. 15200000



Oral Argument Not Requested

                              1
                          TABLE OF CONTENTS

ITEM                                                                              PAGE

Index of Authorities ………………………………….............................................     3

Statement Regarding Oral Argument ………………………………………...                                4

Statement of the Case ……………………………………………………………….                                     4

Statement of Facts ……………………………………………………………………                                       5

Summary of State’s Argument …………………………………………………..                                   9

Argument and Authorities ………………………………………………………..                                   10

       First Issue on Appeal ………………………………………………………                                 10
                    WAS EVIDENCE SUFFICIENT TO PROVE
                    VALUE OF THE PROPERTY?

              Standard of Review ………………………………………………..                              10

              Application and Analysis ………………………………………..                           11

       Second Issue on Appeal …………………………………………………..                                13
                  WAS EVIDENCE SUFFICIENT TO PROVE
                  PROPERTY UNLAWFULLY APPROPRIATED
                  WITH INTENT TO DEPRIVE THE OWNER?

              Standard of Review ……………………………………………….                               14

              Application and Analysis ……………………………………….                            14

Prayer …………………………………………………………………………………….                                           19

Certificate of Compliance with Rule 9 ……………………………………….                             20

Certificate of Service ………………………………………………………………..                                  20


                                           2
                   INDEX OF AUTHORITIES

CASES                                                               PAGE

Brooks v. State, 323 S.W.3d 893 (Tx. Cr. App. 2010) …………………..        11

Godinez v. State, No. 08-12-00218-CR, 2014 Tex. App. ……………….         16
     LEXIS 10524 (Tx. App. El Paso 8th Dist. 2014 no pet.),
     not designated for publication)

Ingram v. State, 261 S.W. 3d 749 ………………………………………………                  17
     (Tx. App. Tyler 12th Dist. 2008 no pet.)

Isassi v. State, 330 S.W.3d 633 (Tx. Cr. App. 2010) …………………….        11

Jackson v. Virginia, 443 U.S. 307 (1979) …………………………………… 10, 11

McGee v. State, 715 S.W.2d 838 ………………………………………………… 12, 13
     (Tx. App. Houston 14th Dist. 1986 no pet.)

Sullivan v. State, 701 S.W.2d 905 (Tx. Cr. App. 1986) ……………….....    12

Williams v. State, 235 S.W.3d 742 (Tx. Cr. App. 2007) ………………..       11

Worsham v. State, 120 S.W. 439 (Tx. Cr. App. 1909) …………………..         17


OTHER

Texas Penal Code

      Section 1.07(a)(35) …………………………………………………………                     18

      Section 31.08 …………………………………………………………………..                      13

      Section 31.08(a) ……………………………………………………………… 11, 13




                                   3
STATEMENT REGARDING ORAL ARGUMENT
      The only issues in this case are the sufficiency of the evidence to

prove value and to prove the culpable mental state. The record is clear

and the law is settled. The briefs of the parties are complete and there is

no need for oral argument. The State does not desire oral argument and

respectfully requests that the Appellant’s request for oral argument be

denied.

STATEMENT OF THE CASE

      The Appellant, Ronicesha Cherron Wearren, was charged by

indictment with the state jail felony offense of theft. The indictment

alleged that she unlawfully appropriated, by acquiring or exercising

control over property, to-wit: fence panels, of the value of $1,500 or

more but less than $20,000, from Juan Rodriguez, the owner thereof,

without the effective consent of the owner and with the intent to

deprive the owner of the property. (CR-4).

      She was tried before a jury in the 426th District Court of Bell

County, Texas, Judge Fancy Jezek presiding. The jury found her guilty as

charged in the indictment. (CR-28; RR7-35). The same jury assessed her

punishment at 14 months in state jail. (CR-32; RR7-55).



                                    4
      The Appellant gave timely notice of appeal (CR-36) and the trial

court certified her right to do so. (CR-34).

STATEMENT OF FACTS

      Juan Rodriguez purchased a 5.4 acre lot in a residential

development in Killeen called Creek Place. (RR5-23, 31).           It was

surrounded by occupied residences. (RR5-23). Mr. Rodriguez began

working to clear the land in order to have a house built on it. (RR5-23).

He kept a large white truck, a backhoe, and a small tractor called a Skid

Steer on the property which he used to remove brush. (RR5-24). The lot

was fenced in on three sides by the neighbors’ fences. (RR5-52).

      Mr. Rodriguez, who had retired from the military after ten years

as a mechanic (RR5-22, 47), agreed to do some mechanical work on a

vehicle belonging to a friend and, in exchange for his work, agreed to

take in trade some 25 fence panels to be used to fence in the front of his

property. (RR5-24, 25). He estimated the value of his work for his

friend at around $3,000.00. (RR5-25).

      Rodriguez and his wife took the fence panels to the property and

stacked them up against a tree that was about 160 feet from the street.

(RR5-31, 39; RR6-96). They chose that location purposely in order to



                                     5
keep them away from the street and keep them out of the dirt and any

moisture so they would not rust. (RR6-96). They did not leave any of

the panels laying down in the grass nor near the street. (RR5-37; RR6-

96).

       On Tuesday Mr. Rodriguez and a friend worked on the land until

sometime late in the evening. When they left the fence panels, vehicles,

and other items were in place on the property. (RR5-60). When he

returned the following Sunday, however, Rodriguez found his fence

panels gone, as well as a pop-up deer blind and some propane heaters,

tanks, and chairs that had been inside the blind. (RR5-65). He reported

the incident to the Bell County Sheriff’s Office. (RR5-44).

       Early the next morning, Mr. Rodriguez went to Centex Scrap and

Metal to see if they had seen his fence panels. (RR5-45). He spoke to

employee Damien Deville who confirmed that a regular customer had

brought in fence panels but declined to name that person. Rodriguez

notified the Sheriff’s Office. (RR5-46, 87; RR6-24, 25).

       Bell County Deputy Sheriff Justin Kelly went to Centex Scrap and

Metal and spoke to Deville. Deville identified pictures of the fence

panels that Rodriguez had provided to the officer. (RR6-27). Deville

confirmed that he had bought them from a regular customer and had


                                     6
noticed that they did not fit into her minivan. (RR5-87; RR6-28). While

Deputy Kelly was taking his statement, Deville advised that the

customer and the van in question was, at that moment driving over the

scales. (RR6-29).

      The Deputy confronted the Appellant, who was the occupant of

the van and she readily admitted that she had taken the fence panels

from the lot in Creek Place subdivision and had sold them to Centex.

(RR6-29, 30, 31). She had delivered two loads of fence panels to them

that Sunday. She admitted that she did not have permission to enter the

property. (RR6-30). The Appellant claimed that two of the fence panels

had been near the road and she had concluded that they had been

abandoned. (RR6-31, 42). She also admitted, however, that she had

then walked upon the property and rounded up the remaining panels

that she claimed were scattered among the grass on the lot.           She

admitted taking other “scrap” but could not remember what it was.

(RR6-41). The Appellant led the Deputy to the place where she had

acquired the fence panels. It was Mr. Rodriguez’ lot. (RR6-38, 39).

      The fence panels had been quickly crushed into a metal block at

the scrap yard. Only two or three remained on the property. (RR5-50).




                                    7
      Juan Rodriguez did not know whether the fence panels he had

received in exchange for his mechanic work were new or used. (RR5-

30). He did know that they had originally come from Lowe’s Home

Improvement Center. (RR6-47).       The panels were not available for

inspection due to the actions of the scrap yard after they were sold to

them by the Appellant. Deputy Kelly checked with Lowe’s and found the

cost to replace the fence panels that were taken to be $4,000.00. (RR6-

48, 49).

      At trial the Appellant testified. She admitted that she took the

fence panels from the lot and scrapped them. (RR6-71). She claimed

that she saw two panels near the road and believed them to be

abandoned. She then walked further onto the property and saw fence

panels laying in the grass that were the same and assumed that they

must also have been abandoned. (RR6-71, 72, 77, 82). She conceded,

however, that they did look as if they had been stacked up. (RR6-77).

She and her 7 year old son carried all of the fence panels to a place near

the road and then took two trips to take them all to the scrap yard to

sell. (RR6-72, 74, 75). She claimed that she greeted a neighbor but did

not inquire of her concerning the ownership of the property. (RR6-86,

87). Instead, she assumed that the lot was just an illegal dump site in


                                    8
spite of the fact that is was surrounded by occupied houses. (RR6-72,

83). She denied that the truck, backhoe, and tractor were there at the

time. (RR6-89, 90).

       Juan Rodriguez, the owner of the lot and the fence panels, did not

know the Appellant and did not give her permission to take them. (RR5-

48).

       Sheriff’s Deputy Jason Davis, who regularly patrols the area

described Creek Place as a subdivision that had been about 90%

developed with houses on the majority of the lots. He described the

homes there as “high end”. The only entrance or exit to the subdivision

was clearly marked with a sign identifying it as “Creek Place”. (RR5-71,

72, 82, 83).

SUMMARY OF STATE’S ARGUMENT

       The owner did not know whether the property was new or used

and had taken it in trade for labor. Due to the actions of the Appellant

they were unavailable for inspection and a determination of value.

Because the fair market value could not be ascertained, the proper

standard for determining the value of the property was the cost to




                                    9
replace. The evidence was sufficient to prove the value as alleged in the

indictment.

      The evidence that the Appellant entered upon the real property of

the owner without his consent and removed his personal property and

sold it for her own profit was sufficient for a rational jury to conclude

that she unlawfully appropriated the property with the intent to deprive

the owner.

ARGUMENT AND AUTHORITIES

First Issue on Appeal

      Was the evidence sufficient to prove beyond a reasonable doubt

that the value of the property taken was $1,500 or more, but less than

$20,000?

Standard of Review

      Due process of law requires that the State prove, beyond a

reasonable doubt, every element of the offense charged in the

indictment. Jackson v. Virginia, 443 U.S. 307, 313 (1979). In reviewing

the sufficiency of the evidence to support the conviction the court must

consider all of the evidence in the case in the light most favorable to the

verdict in order to determine whether, based upon the evidence and



                                    10
reasonable inferences therefrom, a rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt.

Brooks v. State, 323 S.W. 3d 893, 899 (Tx. Cr. App. 2010).

      In reviewing the evidence in the light most favorable to the

verdict, the court must presume that the trier of fact resolved conflicts

in the testimony, weighed the evidence, and drew reasonable inferences

from that evidence in a manner that supports the verdict. Jackson at

318. The court must consider only whether the fact finder reached a

rational decision. Isassi v. State, 330 S.W.3d 633, 638 (Tx. Cr. App. 2010).

      The weight and credibility of the evidence is solely for the fact

finder and the court will not re-evaluate those matters nor substitute its

judgment for that of the fact finder. Isassi at 638; Williams v. State, 235

S.W.3d 742, 750 (Tx. Cr. App. 2007).

Application and Analysis

      Section 31.08(a) of the Texas Penal Code provides that, with

respect to theft cases, value is the fair market value of the property at

the time and place of the offense, or, if the fair market value cannot be

ascertained, the cost of replacing the property within a reasonable time

after the theft. Thus where fair market value cannot be ascertained,

replacement cost is the proper measure of value.


                                     11
      In this case the owner did not purchase the fence panels, but took

them in trade for his labor. He testified that he did not know if the fence

panels were new or had been used or how old they were. Because the

Appellant sold them to a scrap yard that immediately crushed them into

a metal brick they were unavailable for examination and an estimation

of value. Their fair market value could not be ascertained.

      The investigating officer inquired at Lowes, the original source of

the fence panels and learned that the total replacement cost of the fence

panels taken by the Appellant was $4,000.00. (CR6-50). The Appellant

offered no evidence to contest or contradict that figure.

      A similar case is McGee v. State, 715 S.W.2d 838 (Tx. App. Houston

14th Dist. 1986 no pet.). In that case furniture was stolen from a rental

furnished apartment. It was never recovered. The owner testified that

he had no idea when he had seen the furniture last and could not testify

as to its age or condition at the time it was stolen. He did ascertain and

testify as to the cost to replace the furniture. McGee at 839.

      Citing Sullivan v. State, 701 S.W.2d 905, 909 (Tx. Cr. App. 1986),

the court noted that an owner could testify to the value of his property,

either as to fair market value or replacement cost. Under the facts of the

case the court held that the fair market value could not be ascertained


                                     12
because the furniture was not recovered and, ignorant of its condition

or age, the owner could not testify to such value. Therefore, it was

proper to testify to the cost to replace and the evidence as to value was

sufficient and the jury properly instructed to consider replacement

cost.1 McGee at 840.

       In this case the owner, Juan Rodriguez, acquired the fence panels

in trade. He did not know their age or if they had been previously used.

He valued the work he did for his friend in exchange for the fence panels

at $3,000.00. The Deputy Sheriff contacted the home center where the

panels were originally obtained and found the cost to replace to be

$4,000; well in excess of the $1,500.00 minimum for state jail felony

theft. The evidence was certainly sufficient, when viewed in the light

most favorable to the verdict, for a rational jury to find that the value of

the property taken was between the amounts charged in the indictment.

Second Issue on Appeal

       Was the evidence insufficient to prove beyond a reasonable doubt

that the Appellant unlawfully appropriated the property with the intent




1
 In this case the jury was instructed, without objection by Appellant, as to the provisions
of Section 31.08 regarding value. (CR-24).


                                            13
to deprive the owner of the property because the Appellant testified

that she thought it had been abandoned?

Standard of Review

      The standard of review is identical to the first issue on appeal.

Application and Analysis

      The Appellant, relying entirely upon her own testimony, contends

that the evidence was insufficient to prove that she had the intent to

deprive the owner of the property because she thought it was

abandoned. She utterly ignores the rest of the evidence in the case.

While she concedes that intent may be shown from her acts and words,

she only views them with respect to her own self-serving interpretation.

      The Appellant claimed that she had found two of the more than

twenty fence panels near the road and concluded that they must have

been abandoned. Then, entering far into Mr. Rodriguez’ lot, she saw the

other fence panels and apparently reasoned that if the two by the

roadway were abandoned, the remaining identical panels must also

have been abandoned. Claiming that the truck, backhoe, and other

equipment were not on the lot, and ignoring the occupied homes

surrounding the lot, she also decided that it was an illegal dumping

ground. She and her son then went all about the lot collecting the fence


                                    14
panels, hauling them to the road and making two trips in order to sell

them to the scrap metal yard.

      On the other hand, Juan Rodriguez, the owner of the lot and of the

fence panels, testified that he was in the process of clearing the lot in

preparation for building a house on it. His truck, backhoe, and tractor

used in that project were on the lot. He had obtained the metal fence

panels in order to fence the front of the lot and he and his wife had

carefully stacked them 160 feet away from the road and against the

trees to protect them from the elements. He stated that he did not ever

abandon that property, but rather trusted that they would be safe there

for use in the project.

      The Appellant’s acts which point to an intent to deprive the owner

of the property include going on to his lot in a residential subdivision

without seeking permission or even inquiring concerning its ownership;

rounding up a large number of fence panels from deep within the lot

and dragging them to the road; hauling them down to the scrap metal

salvage yard in two separate loads; and selling them for her own profit.

Her self-serving protestations after the fact that she thought the lot was

an illegal dump ground, and that she determined the all of the fence

panels found some 160 feet inside the lot were abandoned, do not


                                   15
negate her actions. She simply ignores everything she did and relies on

her own interpretations of it, which were rejected by the jury.

      The jury was the exclusive judge of the facts proven and the

weight to be given to the testimony and it obviously accepted as true

Rodriguez’ testimony. The mere fact that the Appellant testified that

she believed the panels to have been abandoned did not obligate the

jury to accept that testimony. The test is whether or not there was

sufficient evidence for a rational jury to find that the Appellant

appropriated the property with the intent to deprive the owner of it.

Deference must be given to the determination of the jury and if the

record contains conflicting inferences, the court must presume that the

jury resolved those facts in favor of the verdict and must defer to that

resolution. Brooks at 894-95.

      In Godinez v. State, No. 08-12-00218-CR, 2014 Tex. App. LEXIS

10524 (Tx. App. El Paso 8th Dist. 2014 no pet.), not designated for

publication, the defendant similarly relied upon his own testimony that

he took property that had been discarded and abandoned. The owner,

however, testified that such was not the case. The court of appeals held

that the jury was the judge of the credibility of the witnesses and had

the sole responsibility to resolve conflicts between the witnesses for the


                                   16
State and defendant and, viewing the evidence from the standpoint

most favorable to the jury and in light of the jury’s determination in

favor of the State, the evidence was sufficient.

      In this case, moreover, the Appellant admittedly went upon the

land owned by Mr. Rodriguez and took property she deemed to have

been abandoned. A similar situation occurred in Ingram v. State, 261

S.W.3d 749 (Tx. App. Tyler 12th Dist. 2008 no pet.). There the defendant

went upon the real property of the owner and entered a structure

where he took property, claiming that it had been abandoned. On

Appeal he complained about the trial court’s denial of a charge on

mistake of fact on that basis.

      Citing Worsham v. State, 120 S.W. 439 (Tx. Cr. App. 1909), the

Ingram court noted that the word “abandon” means a giving up, a total

desertion, an absolute relinquishment; and includes both the intention

to abandon and an act by which that intention is carried into effect. The

court said that it is essential in order to raise the issue of abandonment,

that there be a concurrence of the intention to abandon and an actual

relinquishment of the property in order that it may be appropriated by

“the next comer.” The court stated that an individual may abandon his




                                     17
property and, upon abandonment, it is the property of no one until it

possessed with the intention to acquire title. Ingram at 753.

      However, while it is possible to acquire abandoned without

committing theft, theft is committed where the defendant unlawfully

acquires property with the intent to deprive the owner of the property.

The owner is a person who has title to property, possession of property,

whether lawful or not, or a greater right to possession of property than

the actor. Section 1.07(a)(35), Texas Penal Code. If, therefore, a person

enters private property without the consent of the owner and takes

possession even of abandoned property, he nevertheless commits a

wrongful act and no title to the property is created in him because the

owner of the real property where the stolen personal property is found

has a greater right to possession than does the trespasser and is thus

the owner of that personal property and the taking deprives him of it.

Ingram at 754. Nothing in the evidence shows an intention of the part

of Mr. Rodriguez to abandon his property nor a concurrent act of

abandonment. Instead, it shows every intention to retain and use that

property.

      There was ample evidence for a rational jury to find that the fence

panels had not been abandoned by their owner and that the Appellant


                                    18
unlawfully appropriated them with the intent to deprive the owner of

them.     Further, even had the panels been abandoned there is no

question that they were located on the real property of Mr. Rodriguez

and that the Appellant entered upon the real property and took them

without his consent. She thus unlawfully took the property with the

intent to deprive Mr. Rodriguez who, as the person with the greater

right to possession of the panels was the owner, with the intent to

deprive him of them.

                                PRAYER

        The State of Texas respectfully prays that the judgment of

conviction herein be, in all things, be affirmed.

                                            Respectfully Submitted,

                                            HENRY GARZA
                                            District Attorney

                                            /s/     Bob D. Odom
                                            BOB D. ODOM
                                            Assistant District Attorney
                                            P.O. Box 540
                                            Belton, Tx 76513
                                            (254) 933-5215
                                            FAX (254) 933-5704
                                            DistrictAttorney@co.bell.tx.us
                                            SBA No. 15200000




                                     19
     CERTIFICATE OF COMPLIANCE WITH RULE 9

     This is to certify that the State’s Brief is in compliance with Rule 9

of the Texas Rules of Appellate Procedure and that portion which must be

included under Rule 9.4(i)(1) contains 3,148 words.



                                           /s/   Bob D. Odom
                                           BOB D. ODOM
                                           Assistant District Attorney



                  CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of this brief has been

served upon, Kristen Jernigan, Counsel for Appellant, by electronic

transfer via Email, addressed to her at Kristen@txcrimapp.com on this

30th day of November, 2015.



                                           /s/   Bob D. Odom
                                           BOB D. ODOM
                                           Assistant District Attorney




                                    20
