                                       NO. 07-01-0155-CR

                                 IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                          AT AMARILLO

                                             PANEL E

                                     JANUARY 7, 2003
                             ______________________________

                                         MARVIN WARE,

                                                              Appellant

                                                  v.

                                    THE STATE OF TEXAS,

                                                  Appellee
                          _________________________________

               FROM THE 174TH DISTRICT COURT OF HARRIS COUNTY;

                     NO. 858,829; HON. JON H. HUGHES, PRESIDING
                          _______________________________

Before JOHNSON, CJ., QUINN, J. and BOYD, SJ.1

       In one issue, appellant Marvin Ware contends the evidence is legally and factually

insufficient to sustain his conviction of the offense of theft by a public servant. We affirm

the judgment of the trial court.

                                       Background

       Appellant was a bus driver for the Metropolitan Transit Authority of Harris County.

On September 5, 2000, the Metro Police began an operation to investigate problems with

       1
       John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. TEX. GOV’T
CODE ANN. §75.002(a)(1) (Vernon 1998).
personal property being turned into the lost and found department. As part of this

investigation, Officer Willie Hernandez boarded the bus driven by appellant at the first stop

and took a seat near the front. Several stops later, another officer, Yvette Pitts, boarded

the bus and took a seat near the rear of the bus. After a few minutes, Pitts took a wallet

to appellant which she claimed had been left on the bus. The wallet contained $30 in cash

as well as a number of business cards which had been furnished by the Metro Police. The

officers exited at the last stop, and Officer Marvin Ledet followed the bus back to its facility

in an unmarked car. A superintendent of the facility, Richard Forbus, watched to see if

appellant turned the wallet into the Transit Authority, which he did not. Officer Ledet then

observed appellant walk back toward where the buses were parked and go through a

wallet. Appellant threw the wallet in a trash can where Ledet retrieved it after appellant

left the area. The money was missing, and the business cards and papers had been

moved from their respective compartments.

                      Issues One and Two - Sufficiency of the Evidence

       In issues one and two, appellant challenges the legal and factual sufficiency of the

evidence to sustain his conviction. We overrule the issues.

       The standards of review applicable in determining the legal and factual sufficiency

of the evidence are well settled. We will not reiterate them but rather refer the litigants to

Jackson v. Virginia, 443 U.S. 307, 309, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), King v.

State, 29 S.W.3d 556, 562-63 (Tex. Crim. App. 2000), and Clewis v. State, 922 S.W.2d

126, 129 (Tex. Crim. App. 1996) for explanations of the same.




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       A person commits the offense of theft if he unlawfully appropriates property with the

intent to deprive the owner of the property. TEX . PEN . CODE ANN . §31.03(a) (Vernon Supp.

2003). To “appropriate” means to acquire or otherwise exercise control over property

other than real property. Id. §31.01(4). Appropriation of property is unlawful if it is without

the owner’s effective consent. Id.§31.03(b). Effective consent includes consent by a

person legally authorized to act for the owner. Id. §31.01(3). For purposes of punishment,

an offense is increased to the next higher offense if the actor was a public servant at the

time of the offense and the property appropriated came into his custody, possession, or

control by virtue of his status as a public servant. Id. §31.03(f)(1).

       Appellant contends that, although he exercised care, custody, and control over the

wallet at one point, there is no evidence that he removed money from the wallet. This is

so, he argues, because none of the officers saw him with any money, and none of the

marked bills in the wallet were recovered. Further, an attempted video tape of the event

did not record properly.

       Both lack of consent and intent to deprive may be shown by circumstantial

evidence. See Griffin v. State, 614 S.W.2d 155, 159 (Tex. Crim. App. 1981) (holding that

intent to deprive may be determined from acts and words of the accused); Williams v.

State, 591 S.W.2d 873, 875 (Tex. Crim. App. 1979) (holding that lack of consent may be

proved by circumstantial evidence). Further, a defendant may be convicted of theft without

being seen with or found in possession of the stolen property, although lack of possession

is a factor to be considered in a circumstantial evidence case. King v. State, 712 S.W.2d

799, 801 (Tex. App.—Houston [1st Dist.] 1986, pet. ref’d). In Carter v. State, 414 S.W.2d


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663, 665 (Tex. Crim. App. 1967), the evidence that the defendant was the last person seen

in the possession of clothing before its loss was discovered and that she was seen leaving

the store carrying a large purse was sufficient to warrant a finding that the defendant

removed the clothing from the store with the intent to deprive the owner of the same and

appropriate it for her own use, even though the clothing was never recovered.

       In this instance, 1) Officer Pitts gave a wallet to appellant containing $30 that she

claimed to have found on the bus; 2) Officer Hernandez observed appellant at all times

after receiving the wallet until the bus reached its last stop and stated that the wallet was

still in appellant’s possession when he exited the bus; 3) Officer Ledet observed appellant

leave the bus at the bus facility and head to the Transit Authority “starter’s” office where

drivers pick up their schedules and turn in found property; 4) Mr. Forbus testified that no

property was handed by appellant to the person in that office; 5) Officer Ledet watched

as appellant headed back toward the bus, went through a wallet, threw the wallet in a trash

can, and left the area; 6) Ledet retrieved the wallet and identified it as the one that had

been given to appellant on the bus; 7) the money originally in the wallet was missing when

the wallet was retrieved by Ledet; and 8) the other items in the wallet had been moved

around. Viewing this evidence in its most favorable light, a rational trier of fact could have

reasonably inferred, beyond reasonable doubt, that appellant unlawfully appropriated the

money with the intent to deprive the owner of it. Further, that finding is not manifestly

unjust or clearly wrong when tested against the entire record. Accordingly, the evidence

is neither legally nor factually insufficient to support the verdict.

       We affirm the judgment of the trial court.


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                      Brian Quinn
                        Justice
Do not publish.




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