                            NUMBER 13-11-00294-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

JACK AARON COLLINS,                                                         Appellant,

                                           v.

THE STATE OF TEXAS,                                                          Appellee.


                   On appeal from the 107th District Court
                        of Cameron County, Texas.


                        MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Benavides, and Longoria
            Memorandum Opinion by Justice Benavides
      Jack Aaron Collins appeals his jury conviction for theft of a trailer home valued at

$500 or more but less than $1,500, a Class A misdemeanor.          See TEX. PENAL CODE

ANN. § 31.03(a); (e)(3) (West Supp. 2011). By two issues, Collins asserts that (1) the

evidence was legally insufficient to show that he acted without effective consent; and (2)

the trial court erred by refusing to instruct the jury regarding accomplice testimony. We
affirm.

                                       I.      BACKGROUND1

          In July 2010, a Cameron County grand jury indicted Collins for unlawfully

appropriating, by acquiring or otherwise exercising control over a trailer home, valued at

$1,500 or more but less than $20,000, without the effective consent of the owner, with

intent to deprive the owner of the property, a state-jail felony.            Id.

          The criminal complaint in this case arose in December 2008 after Matthew Bukin

discovered that a trailer home, previously located on his South Padre Island real estate,

was missing.      Bukin, who lives in the Dallas area and co-owns the South Padre Island

property, testified that the lot “looked like a bomb had gone off.”

          South Padre Island Police officer Jose Mora was the lead investigator assigned to

the case.     Bukin told Investigator Mora that he had not:              (1) sold the trailer; (2) given

permission to anyone to sell his trailer; and (3) did not hire anyone to clean his lot.                  At

the scene, SPI police discovered a moving company’s business card and called the

number listed for further investigation.          Police later learned that the moving company

was hired to move the trailer home off the South Padre Island property.                           This tip

eventually led police to Abel Rangel, a Rancho Viejo-based businessman, who was in

the business of buying and selling mobile homes.

          Rangel testified that in July 2008, he received a phone call from Collins informing

him that he had a mobile home that he needed to “get rid of” on South Padre Island.

Rangel testified that he has known Collins for at least five years through Collins’s


          1
          Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.

                                                     2
business as a home mover.       Rangel admitted that he did not ask Collins whether he

was the owner of the trailer or representing the owner of the trailer, but Collins told him

that he needed to clean the lot.    Nonetheless, Rangel accepted the offer, paid $500,

and began to “fix up” the trailer on the lot. Rangel later sold the trailer to Juan Medina,

who removed the trailer’s porch on his own, then contracted with Aaron Salazar to move

the remaining trailer home to a location in San Benito, Texas.

       Investigator Mora spoke to Collins, who stated that he had permission from local

realtor Richard Laskey to move the trailer home in order to clean the property.

Investigator Mora stated that Collins told him that he subcontracted Rangel to move the

trailer home, but Collins never admitted to selling the trailer. Bukin testified that he did

not know Collins and did not contract anyone to move the trailer home.

       Bukin testified that he previously listed the property with the trailer home for sale

through South Padre Island realtor Sandra Thomas.            Thomas was professionally

associated with Laskey.    Bukin testified that some time in the early summer of 2008, he

took part in a deep-sea fishing trip along with Laskey and James Hawkinson, who

captained the boat. On the trip, Laskey told Bukin that cleaning the lot would help

enhance its marketability, but Bukin never authorized Laskey to have the trailer

removed.

       Thomas and Laskey each testified at trial. Thomas stated that some time during

the summer of 2008, Bukin asked her to solicit a price quote to remove the trailer, so she

asked Hawkinson to call and request a quote from Collins. Thomas indicated that

Collins offered Hawkinson a $2,500 quote. Laskey testified that he knew Collins, but

never spoke to him about removing the trailer home.


                                             3
        Hawkinson testified on behalf of the defense. Hawkinson indicated that he has

known Collins for at least ten years and that Collins had performed jobs for him in the

past.   Hawkinson further testified that he suggested to Bukin and Laskey to move the

trailer during the trio’s May 2008 fishing trip.           According to Hawkinson, Bukin then

asked him to find someone to get the trailer moved, but they did not discuss cost.                 After

the fishing trip, Hawkinson contacted Collins about Bukin’s interest in moving the trailer.

Hawkinson stated that after the initial call to Collins, he directed Collins to speak with

Thomas or Laskey to work out the details because he was “too busy” to contact Bukin

directly.    Hawkinson admitted that Bukin never authorized him to sell or move the trailer.

        After a nearly three-day trial, jurors found Collins guilty of the lesser-included

offense of misdemeanor theft of a trailer home valued at $500 or more but less than

$1,500. The trial court sentenced Collins to one year imprisonment at the county jail

and ordered the sentence suspended for two years. This appeal ensued. 2

                          II.     SUFFICIENCY OF THE EVIDENCE

        By his first issue, Collins asserts that the evidence is legally insufficient to

establish that he acted without the effective consent of the owner.

        A.      Standard of Review and Applicable Law

        We apply the standard articulated in Jackson v. Virginia to determine whether

evidence is sufficient to support a criminal conviction.           443 U.S. 307, 319 (1979); see

Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (holding that

the Jackson standard of review is the “only standard” that should be applied in a

        2
         A previous “Motion to Appoint Appellate Counsel” was filed in this case. In response, this Court
abated Collins’s appeal and remanded the case to the trial court to hold a hearing and determine whether
Collins was (1) indigent and (2) if found indigent, appoint counsel to represent him on appeal. The trial
court found Collins indigent and appointed present appellate counsel, Edmund K. Cyganiewicz.
Therefore, this motion, which has been carried with the case, is hereby dismissed as moot.

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sufficiency review).      Under Jackson, we examine 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.        443 U.S. at 319.

          The elements of the offense are measured as defined by a hypothetically correct

jury charge.      Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (citing

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.1997)).          Such a charge [is] one

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

increase the State's burden of proof or unnecessarily restrict the State's theories of

liability, and adequately describes the particular offense for which the defendant was

tried.    Villarreal, 286 S.W.3d at 327.

          We defer to the jury's determinations of credibility and weight to be given to the

evidence because jurors are the sole fact-finders.     See Brooks, 323 S.W.3d at 899; see

also TEX. CODE CRIM. PROC. ANN. art. 38.04 (West 1979) (“The jury, in all cases, is the

exclusive judge of the facts proved, and of the weight to be given to the testimony. . . .”).

Each fact need not point directly and independently to the guilt of Collins, as long as the

cumulative force of all the incriminating circumstances is sufficient to support the

conviction.     Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Specifically, to

determine whether an individual is a party to an offense, we look at “events occurring

before, during and after the commission of the offense and may rely on actions of the

defendant which show an understanding and common design to do the prohibited act.”

Gross v. State, 380 S.W.3d 181, 186 (Tex. Crim. App. 2012); see Hooper, 214 S.W.3d at

13.      Circumstantial evidence is as probative as direct evidence in establishing the guilt

of an actor, or party status, and circumstantial evidence alone can be sufficient to


                                               5
establish guilt.   See Gross, 380 S.W.3d at 186; Hooper, 214 S.W.3d at 13.

        B.      Discussion

        The State indicted Collins for theft of a trailer home valued at $1,500 or more but

less than $20,000.3 Under a hypothetical jury charge authorized by the indictment,

Collins is guilty of theft if he (1) appropriated the trailer home, (2) without Bukin’s

effective consent, (3) with intent to deprive Bukin.

        Collins challenges the sufficiency of the evidence solely on the “without effective

consent” element.       Consent is not effective if:

             (A) induced by deception or coercion;

             (B) given by a person the actor knows is not legally authorized to act for
                 the owner;

             (C) given by a person who by reason of youth, mental disease or defect,
                 or intoxication is known by the actor to be unable to make
                 reasonable property dispositions;

             (D) given solely to detect the commission of an offense; or

             (E) given by a person who by reason of advanced age is known by the
                actor to have a diminished capacity to make informed and rational
                decisions about the reasonable disposition of property.

TEX. PENAL CODE ANN. § 31.01(3) (West Supp. 2011).

        In this case, the evidence shows that Bukin did not authorize anyone to sell his

trailer home, nor did he hire anyone to clean his lot.                  While Bukin, Laskey, and

Hawkinson testified about a discussion during a fishing trip regarding what could be done

to “enhance the marketability” of Bukin’s property—including removal of the trailer

home—no one testified that a final plan to remove or sell the trailer home was devised,

        3
           We note that the jury found Collins guilty of the lesser-included charge of misdemeanor theft
based on the value of the trailer home. However, because the value element of the indicted offense is not
at issue in this appeal, we need not address it. See TEX. R. APP. P. 47.1.

                                                   6
developed, or authorized. The evidence also shows that: (1) Bukin may have directed

Thomas to solicit price quotes for the removal of the trailer home; (2) Thomas asked

Hawkinson to speak to Collins about pricing the removal; and (3) that Collins offered a

$2,500 quote to remove it.       However, the evidence does not establish that any of the

parties involved either principally, or acting on behalf of another, gave Collins the

authority to sell or remove the trailer home. This evidence is further corroborated and

supported by Bukin, Thomas, Laskey, and Hawkinson’s respective testimonies that they

had no knowledge of the missing trailer until the initial discovery was made.    According

to Investigator Mora, Collins told him that Laskey had given him permission to clear

Bukin’s lot, but Laskey testified that he never discussed the removal of the trailer home

with Collins.

       After examining this evidence in the light most favorable to the verdict, we

conclude that a rational trier of fact could have found beyond a reasonable doubt that

Collins appropriated the trailer home, without Bukin’s effective consent, with intent to

deprive Bukin of the property.

       Collins’s first issue is overruled.

                  III.   ACCOMPLICE WITNESS JURY INSTRUCTION

       By his second issue, Collins asserts that the trial court erred when it denied his

request for an accomplice-witness instruction as to Rangel’s testimony.

       A.       Standard of Review and Applicable Law

       Our first duty in analyzing a jury-charge issue is to determine whether error exists.

See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (en banc).           If we find

error, we analyze it for harm.    Id. The degree of harm necessary for reversal depends


                                              7
on whether the error was preserved by objection.        Id.   If the error was preserved by

objection, we will reverse if we find “some harm” to the defendant’s rights.      Id.    If no

objection was made, we will reverse only if the record shows “egregious harm” to the

defendant. Id.

       A defendant has a right to an instruction on any defensive issue raised by the

evidence, whether that evidence is weak or strong, unimpeached or contradicted, and

regardless of what the trial court may think about the credibility of the evidence.     Cocke

v. State, 201 S.W.3d 744, 747 (Tex. Crim. App. 2006); Granger v. State, 3 S.W.3d 36, 38

(Tex. Crim. App. 1999).    The purpose behind this rule is to ensure that the jury, and not

the judge, decides the credibility of the evidence.   See Cocke, 201 S.W.3d at 747.

       In Texas, a conviction cannot be secured upon the testimony of an accomplice

unless corroborated by other evidence tending to connect the defendant to the offense.

See TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005); Cocke, 201 S.W.3d at 747.

The relevant instruction merely informs the jury that it cannot use the accomplice witness

testimony unless there is also some non-accomplice evidence connecting the defendant

to the offense.   Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002) (en banc).

       B.     Discussion

       Collins argued to the trial court that because Rangel was an accomplice, the trial

court erroneously denied his request for an accomplice witness instruction as to his

testimony.   Therefore, our first inquiry turns on whether Rangel was an accomplice in

this case.

       An accomplice is someone who participates with the defendant before, during, or

after the commission of a crime and acts with the required culpable mental state.


                                             8
Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007). To be considered an

accomplice witness, the witness's participation with the defendant must have involved

some affirmative act that promotes the commission of the offense with which the

defendant is charged.     Id. (citing Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim.

App. 2004)).     A witness’s knowledge of the offense, failure to disclose it, or

concealment of the offense, and mere presence at the scene does not render that

witness an accomplice witness.           See Druery, 225 S.W.3d at 498.      Furthermore,

complicity with an accused in the commission of another offense apart from the charged

offense does not make that witness's testimony that of an accomplice witness.       Id. A

witness is an accomplice witness as a matter of law when the witness can be prosecuted

for the offense with which the defendant is charged, or a lesser-included offense of that

charge.   See id.   Finally, if the evidence presented by the parties is conflicting and it

remains unclear whether the witness is an accomplice, the trial judge should allow the

jury to decide whether the inculpatory witness is an accomplice witness as a matter of

fact under instructions defining the term “accomplice.”     Id. at 498–99.   However, as

with an accomplice as a matter of law, there must still be some evidence of an affirmative

act on the part of the witness to assist in the commission of the charged offense before

such an instruction is required.   Id.

       Here, Collins was charged with theft, a state-jail felony, but convicted of Class A

misdemeanor theft. A review of the record shows that Rangel’s participation in the

charged crime was limited and that he acted in good-faith based on Collins’s

representations to him.    Rangel testified that he had purchased trailer homes from

Collins in the past, “never” had problems with these prior dealings, and believed that


                                              9
Collins was acting on behalf of the true owner of the trailer home as he had done before.

To confirm this good-faith transaction, the State produced Rangel’s $500 bill of sale for

the trailer home, signed by Collins, and elicited testimony from Rangel and Medina about

how the home was publically advertised in the newspaper and eventually purchased for

$3,500.     Finally, Rangel testified that he did not know that Collins had sold him a stolen

trailer. No other evidence was presented to establish Rangel’s role in the charged

crime.

         Accordingly, the record does not indicate that Rangel performed an affirmative act

with the required culpable mental state to assist in the commission of the theft either as

an accomplice as a matter of law or as an accomplice as a matter of fact.       See Druery,

225 S.W.3d at 498. Therefore, the trial court had no duty to instruct the jury under

article 38.14 because Rangel was neither an accomplice as a matter of fact or as a

matter of law.    Paredes, 129 S.W.3d at 536.

         Collins’s second issue is overruled.

                                        IV. CONCLUSION

         We affirm the trial court’s judgment of conviction.



                                                          __________________________
                                                          GINA M. BENAVIDES,
                                                          Justice


Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
4th day of April, 2013.



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