

Opinion filed September 6,
2012
 
                                                                       In The
                                                                              
  Eleventh
Court of Appeals
                                                                   __________
 
                                                         No. 11-10-00337-CR 
                                                    __________
 
                             JOE
SHAWN HOLLANDER, Appellant
 
                                                             V.
 
                                      STATE
OF TEXAS, Appellee

 
                                    On
Appeal from the 91st District Court
                                                          Eastland
County, Texas
                                                      Trial
Court Cause No. 22324 
 

 
                                                                  O
P I N I O N
 
            The
jury convicted Joe Shawn Hollander, appellant, of criminal mischief—diversion
of a public service (electricity) in an amount less than $20,000—a state jail
felony.  Tex. Penal Code Ann. § 28.03(a)(2),
(b)(4)(D) (West 2011).  The jury found the two enhancement paragraphs that
alleged prior felony convictions to be true and assessed punishment at confinement
for ten years and a fine of $1,000.  We affirm.
            The
indictment alleged that appellant intentionally and knowingly tampered with
tangible property, an electric meter, and caused pecuniary loss of less than
$20,000 to the owner.  Section 28.03(a)(2), (b)(4)(D).  Because there was no direct
evidence as to who tampered with the electric meter, the State relied on the
presumption in Section 28.03(c) as proof that appellant was the person
responsible for tampering with the electric meter. Id. § 28.03(c). Under
Section 28.03(c), it is presumed that a person who is receiving the
economic benefit of a power supply has knowingly tampered with the meter.  
            The
State had the burden of proving beyond a reasonable doubt that appellant was
the person who tampered with the electric meter and diverted the electricity. 
In five issues, appellant contends that the State failed to meet that burden or
that the trial court erred in its charge and appellant was harmed.
Texas
Penal Code Sections 28.03 and 2.05
            Section
28.03(a)(2) provides that a person commits an offense if, without the effective
consent of the owner, he intentionally or knowingly tampers with the tangible
property of the owner and causes pecuniary loss to the owner.  Section
28.03(b)(4)(D) provides that the offense is a state jail felony if the amount
of pecuniary loss is less than $20,000 and the actor causes to be diverted
wholly, partly, or in any manner, including installation or removal of any
device for any such purpose, any power supply.
Section
28.03(c) provides that, for purposes of Section 28.03, it shall be presumed
that a person who is receiving the economic benefit of a power supply has
knowingly tampered with the tangible property of the owner (e.g., the electric
company) if the supply has been (1) diverted from passing through a metering
device, (2) prevented from being correctly registered by a metering device, or
(3) activated by any device installed to obtain the power supply without a
metering device.
Tex. Penal Code Ann. § 2.05(a) (West
2011) provides that, when the Texas Penal Code “establishes a presumption with
respect to any fact, it has the following consequences:”
(1)
if there is sufficient evidence of the facts that give rise to the presumption,
the issue of the existence of the presumed fact must be submitted to the jury,
unless the court is satisfied that the evidence as a whole clearly precludes a
finding beyond a reasonable doubt of the presumed fact; and
 
(2)
if the existence of the presumed fact is submitted to the jury, the court shall
charge the jury, in terms of the presumption and the specific element to which
it applies, as follows:
 
            (A) that
the facts giving rise to the presumption must be proven beyond a reasonable
doubt;
 
            (B) that
if such facts are proven beyond a reasonable doubt the jury may find that the
element of the offense sought to be presumed exists, but it is not bound to so
find;
 
            (C) that
even though the jury may find the existence of such element, the state must
prove beyond a reasonable doubt each of the other elements of the offense
charged; and
 
            (D) if
the jury has a reasonable doubt as to the existence of a fact or facts giving
rise to the presumption, the presumption fails and the jury shall not consider
the presumption for any purpose.
 
The Testimony at Trial
            The
State presented only two witnesses: Russ Greene with American Electric Power in
Cisco and Officer Scott McDade with the Cisco Police Department.  Greene is a
line service technician who turned off the electricity at 300 West 6th Street
in Cisco in late February 2010.  After turning the electricity off, he put the
meter box back on and put a seal on the box to deter any tampering.  On March
4, 2010, Greene noted that the seal had been removed and the meter had been
turned back on.  He removed the meter, put a plastic cover over it, and closed the
account.  Again, he put an American Electric Power seal on the box cover.  
            On
April 26, 2010, Greene was working next door and noticed that there were lights
on at 300 West 6th Street.  The back door to the house was open, and
Greene observed that the seal was broken off the meter box.  He observed wires
“jumpering” out to the meter box.  Greene cut the electric line to the pole in
the alley to prevent any further diversion of electricity to the house.  Greene
testified that he never saw anyone at the location and that he contacted the
Cisco Police Department on April 26.
            Officer
McDade went with Greene to the house where Officer McDade took pictures of the
tampered meter box.  Greene testified that he never saw anyone at the house and
that he had no personal knowledge concerning the person who might have tampered
with the meter.  He also testified that the electric account at 300 West 6th
Street was in the name of John Coslett.
            Officer
McDade identified the pictures of the tampered meter box.  He testified that he
knew appellant and had been in contact with him on several occasions.  On April
25, 2010, he had taken appellant into custody and issued appellant a Class C
citation.  Appellant’s residence on that citation was listed as 300 West 6th
Street.  Officer McDade testified that he also believed that address to be
appellant’s residence; he had seen appellant going to and coming from the
residence.  Appellant’s arrest on April 25 had no relation to the offense that
is the subject of this case.  The State asked about the arrest only to show
that the residence of appellant was 300 West 6th Street.
            During
cross-examination, Officer McDade testified that he had never questioned the
neighbors to see if they had observed anyone tampering with the meter box; that
he could not state with certainty that he had seen appellant at the address
from the end of February to April 26, 2010; and that he had seen other
people at the house during that time.  He recognized Jeana Tafelmeyer as one who
was there during that period, but he was not certain whether the other people
lived at the house.  Officer McDade agreed that any of the other people could
have tampered with the meter.  After Officer McDade’s testimony, the State
rested.
            Appellant
called four witnesses to testify in his defense: Tifnie Yeshea Ann Boone, his
girlfriend; Coeta Jeanette Sobley and her mother, Teresa Lynn Krebs; and Thomas
Ray Hollander, appellant’s uncle.  
            Boone
testified that she was appellant’s girlfriend and that she currently lived in
Fort Worth.  Boone testified that she started staying with appellant at
300 West 6th Street in the middle of February 2010 and that she was there when
the electricity was turned off.  She stayed there from mid-February to
mid-March.  However, she and appellant would also stay at her trailer house at
400 East 14th Street in Cisco.  According to Boone, the house at 300 West 6th
Street had no electricity at any time that she was there.  They used candles
and flashlights.  She added that her trailer house also had no electricity.
            Boone
said that she and appellant stayed at her trailer house at times for privacy because
there were a lot of people living at 300 West 6th Street.  She named at least
ten of them and said that they were people who needed a place to stay.  She
testified that a number of the people were unwanted guests and that appellant
kicked them out but that they often returned to live there.  During cross-examination,
Boone acknowledged that the other people who stayed at the residence were doing
drugs; she had seen marihuana pipes.  Boone testified that she did not believe
that the house belonged to appellant because the house was not in his name. 
After she moved out in March, she continued to visit with appellant almost
every day.  According to Boone, appellant was then staying with Scott Nicks in
Eastland.
            Coeta
Jeanette Sobley testified that she was a friend of appellant and that she
resided in Eastland.  Sobley testified that appellant stayed with her in
Eastland four or five days during February and then began staying with her for
a much longer period around the end of March.  Between the end of February and
the end of March, Sobley went to appellant’s house in Cisco to take him to buy
groceries and to check on him.  There were other people in the house living on
the first floor; she recognized Sheila Pattenaude King and Ashley Williams.  On
one occasion during the first week in March, she went there and the people
downstairs told her that appellant was “in the black room” upstairs.  Sobley
testified that there was no water in the house and no lights; they were using
candles for light.  Sobley testified that appellant stayed with her from March
22 through March 28 and that he then went to stay with another friend in Olden,
Scott Nicks.
            Apparently,
appellant relied on other people for rides; he called Nicks to pick him up at
Sobley’s house.  Sobley said that she would go to Nicks’s house in response to appellant’s
telephone calls; however, appellant would wait for her at the end of the
driveway.  Sobley said that Nicks told her that she was not allowed to come
into his house.
            Sobley
testified that, when she went to see appellant in mid-April, there was an
extension cord from the neighbor’s house to appellant’s house so appellant
could see what he was doing.  She thought appellant had permission to use the
neighbor’s electricity.  
            According
to Sobley, appellant stayed at her house or at Nicks’s house after appellant’s
girlfriend went to jail in April.  During cross-examination, the State advised
Sobley that Boone was incarcerated on March 17, and Sobley acknowledged that it
was after March 17 that appellant began staying with her or Nicks.  At a later
point in her testimony, she admitted that she might have been confused about
the dates to which she had previously testified.
            Teresa
Lynn Krebs, Sobley’s mother, also lived in Eastland.  She testified that
appellant began staying with Sobley in mid-March and that she saw him there on
a number of occasions.  Krebs also said that appellant was there in mid-April
at different times.  She guessed that appellant stayed at Sobley’s house off
and on for four months through June.
            Thomas
Ray Hollander lives in Cisco.  Thomas’s brother, Leonard, is deceased; appellant
is Leonard’s son.  The house at 300 West 6th Street belonged to Leonard, who
had four children.  Thomas has paid the taxes on the house.  He did not think
that appellant owned the house.  After Leonard’s death, Thomas had allowed Leonard’s
children to live there.  None of the children paid rent.  He said that Stephen
Coslett, a stepson, and Sheila Hollander, Leonard’s daughter, had lived there. 
He also identified John Coslett as another stepson who lived at 300 West 6th
Street prior to appellant; the utilities were in the name of John Coslett.  Thomas
did not believe that any of the other children were living there when appellant
moved into the house; however, he was not certain when appellant moved in.  He
did recall that appellant called him to tell him that appellant had moved out;
however, he did not remember the date of the call.
            Thomas
remembered going by the house and encountering two men who were staying there. 
They said that they had permission to be there.  When Thomas returned, the men
were gone.  Thomas thought that the men were there before appellant called Thomas
to say that he was moving out.  Thomas testified that he never saw any lights
on when he went by the house and that he did not know when the utilities were
cut off.
            Thomas
did state that, when appellant called him about moving out, appellant asked Thomas
to lock the place.  Thomas said that he purchased a deadbolt lock to lock the
front door and that he looked around.  Thomas stated that no one else was at
the house at that time.  Thomas testified that he changed the locks near the
end of May and picked up the mail at the house then.  There was a letter to
appellant in the mail that Thomas picked up.
            The
State called Officer McDade to testify in rebuttal.  Officer McDade testified
that, on April 25, 2010, he contacted appellant in the 1400 block of Conrad
Hilton in Cisco.   
Analysis
            In
appellant’s first two issues, he contends that the evidence was insufficient to
link him to the diversion of electrical power and insufficient to support the
statutory presumption in Section 28.03(c).
            We
review a sufficiency of the evidence issue, regardless of whether denominated
as a legal or a factual sufficiency claim, 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); and 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).
The
jury, as the trier of fact, was the sole judge of the weight and credibility of
the evidence.  Tex. Code Crim. Proc. Ann.
art. 36.13 (West 2007), art. 38.04 (West 1979); Brown v. State,
270 S.W.3d 564, 568 (Tex. Crim. App. 2008).  We must presume that the jury
resolved any conflicting inferences in favor of the prosecution and defer to
that resolution.  Jackson, 443 U.S. at 326; Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007).  The standard is the same for direct
and circumstantial evidence cases; circumstantial evidence is as probative as
direct evidence in establishing the guilt of an actor.  Clayton, 235
S.W.3d at 778.
            There
was no direct evidence to establish that appellant tampered with the electric
company’s meter; therefore, the State had to rely on circumstantial evidence
and the presumption found in Section 28.03(c).  Evidence supporting the fact
that 300 West 6th Street was appellant’s residence included the citation that Officer
McDade issued to him on April 25.  Apparently, appellant gave Officer McDade
his address; Officer McDade testified that he believed 300 West 6th Street to
be appellant’s residence based on seeing appellant there.  Boone testified that
she and appellant were at the residence from mid-February until mid-March,
although they also stayed at her trailer house in Cisco on occasion.  Boone
also testified that appellant had invited some of the other people to stay
there but that there were a number of people that he did not invite.  Appellant
kicked some of the people out from time to time, although they often came back
to stay at the house.  Thus, appellant exercised control over the house.  Boone’s
testimony that they were at the house until mid-March supports an inference
that they were there when Greene discovered the tampered meter box on March 4.
            Sobley
testified that she went to the house to see appellant during the first week in
March, an indication that appellant was there when the meter box was tampered
with.  Sobley saw the extension cord that appellant plugged into an outlet at
his neighbor’s house to enable appellant to see at his house.  Unfortunately,
there was no evidence from the electric company as to when its records
reflected that power was being diverted to the house.  The only evidence was
Greene’s testimony that he found a tampered meter box on March 4 and again on
April 26.  
            Thomas
testified that appellant lived at the house and called Thomas when he moved
out.  During the telephone call, appellant asked Thomas to lock the house.  Thomas
locked the house and did not see anyone else living there.  However, Thomas had
no idea when he first locked the house.  We have only Greene’s testimony that, on
April 26, he found the meter box had been tampered with again.  And, we have
Officer McDade’s testimony that he arrested appellant for an unrelated charge
at another location in Cisco on April 25.  Because appellant relied on others
for transportation, it is a reasonable inference that appellant was staying at
his house on April 25 and receiving the benefit of the diverted electricity.
            After
examining all of the evidence in the light most favorable to the verdict, we
find that a rational trier of fact could have found the essential elements of
the offense beyond a reasonable doubt.  See Jackson, 443 U.S. at 319; Isassi,
330 S.W.3d at 638.  There was sufficient evidence of the facts—that appellant
was in control and management of the house and was present at the house during
periods when electricity was diverted to the house—to give rise to the
presumption that he received the economic benefit of the diverted electricity. 
Boone testified that she was with appellant at the house until mid-March. 
Sobley placed appellant at his house during the first week in March.  And,
appellant was walking around in Cisco on April 25.  Appellant’s first issue is
overruled.
            In
appellant’s second issue, he contends that, even if the statutory presumption
applies, the evidence created by the statutory presumption is insufficient to
support his conviction.  Part of his argument under the first issue also
applies to this issue: there were a number of people living in the house,
receiving the benefit of diverted electricity, that may have been responsible
for the diversion.  Appellant cites Robertson v. State, 888 S.W.2d 493
(Tex. App.—Amarillo 1994, pet. ref’d), and Gersh v. State, 714 S.W.2d 80
(Tex. App.—Dallas 1986), pet. ref’d, 738 S.W.2d 287 (Tex. Crim. App.
1987).  In both cases, the presumption in Section 28.03(c) at the time applied
to a person in whose name the utility was last billed and who received the
economic benefit from a tampered meter.   
            Robertson
is not helpful.  The court in Robertson held that the presumption did
not arise in that case because the defendant was not the last party to be
billed for electrical services at that location.  Without the statutory presumption,
evidence that the defendant lived at the house and knew electricity was being
supplied to the house was insufficient to affirmatively link him to the
offense.  888 S.W.2d at 495.
            In Gersh,
there was evidence that a gas meter had been altered to prevent the flow of gas
from registering properly and that, when the gas company installed a
tamper-proof meter, the meter registered much higher gas usage.  714 S.W.2d at
81.  The defendant lived there with his wife and two children.  He argued that
the presumption contained in the criminal mischief statute, Section 28.03(c),
was unconstitutional as applied to him.  The court reasoned that the
presumption was valid to the extent that it presumed that one who tampers with
a meter will receive an economic benefit.  Id.  But, to the extent that
the presumption identified the person in whose name the utilities were billed
as the one who tampered with the meter, the court was of the opinion that the
presumption ignored common facts of modern living arrangements such as
roommates.  Id. at 81–82.  The court pointed out that the economic
benefit portion of the statutory presumption identified a class of individuals
among whom the likely perpetrator could be found, but the “person billed”
element arbitrarily selected an individual within a class or group all equally
likely to have accomplished the tampering.  The court noted that the wife and
the children also shared in the benefits derived from the gas.  Because the
court found that the “person billed” part was too arbitrary, the court held the
presumption unconstitutional as applied to the defendant.  Id. at 82.
            In Edmondson
v. State, 747 S.W.2d 8 (Tex. App.—El Paso 1988, pet. ref’d), the court
distinguished Gersh on the basis that only the defendant in Edmondson
resided at the address where the gas line had been tampered with to provide
service without a meter.  He was the person billed and only he received the
benefits; therefore, the presumption was not unconstitutional as applied to
him.  747 S.W.2d at 9.
            As
opposed to the statutory presumption in Robertson, Gersh, and Edmondson,
Section 28.03(c) currently provides that it is presumed that a person
receiving the economic benefits of a diverted power supply has knowingly
tampered with the meter if the supply has been diverted from passing through
the metering device.  Appellant argues that the other people staying at the
house received the benefits of the diverted electricity.  If it is shown who
else benefitted, we know of no reason why the presumption would not apply to
that person or persons also.  Appellant’s second issue is overruled.
            In
appellant’s last three issues, he argues that the trial court abused its
discretion by charging the jury on the Section 28.03(c) presumption because the
State failed to prove that appellant was a person who received the economic
benefit of a diverted power supply, because the court failed to instruct the
jury that the State had to prove the facts giving rise to the presumption beyond
a reasonable doubt as required by Section 2.05(a), and because the court’s
charge was unconstitutional as applied to appellant and constituted a comment
on the weight of the evidence.  
In
analyzing a complaint of jury charge error, we first determine whether or not
there was an error in the charge.  Middleton v. State, 125 S.W.3d 450,
453 (Tex. Crim. App. 2003).  If we find that there was an error, we must then
determine if the error caused sufficient harm to warrant reversal.  The
standard for determining harm depends on whether or not an appellant properly
preserved error in the jury charge.  Appellant acknowledges that he did not
object to the jury charge at trial; therefore, his complaints concerning the
statutory presumption in Section 28.03(c) and the lack of Section 2.05(a)
instructions must be shown to have caused him to suffer egregious harm.  Ex parte
Smith, 185 S.W.3d 455 (Tex. Crim. App. 2006).  Errors that result in
egregious harm are those that affect the very basis of the case, deprive the defendant
of a valuable right, or vitally affect a defensive theory.  Ngo v. State,
175 S.W.3d 738, 750 (Tex. Crim. App. 2005).  We must review the entire jury
charge, the evidence, the arguments of counsel, and any other relevant
information in order to determine whether the error was so egregious that
appellant was denied a fair and impartial trial.  Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006); Almanza
v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).   
            In
appellant’s third issue, he argues that the trial court erred in stating the
presumption in its jury charge.  As discussed earlier, we found that there was
sufficient evidence for a rational finder of fact to find that appellant
resided in and was in control of the house and received the benefit of the
diverted electricity.  As opposed to the ground for acquittal in Davis v. State,
658 S.W.2d 572 (Tex. Crim. App. 1983),[1]
cited by appellant, the evidence in this case was sufficient to invoke the
presumption.  Therefore, the trial court did not err in charging the jury on
the statutory presumption.  Appellant’s third issue is overruled.
            In
appellant’s fourth issue, he argues that the trial court erred because it
failed to instruct the jury that the State had to prove the facts giving rise
to the presumption beyond a reasonable doubt.  The State concedes that the
trial court erred in failing to charge the jury as required by Section
2.05(a).  Without the required instructions in Section 2.05(a), the presumption
in Section 28.03 is an unconstitutional, mandatory presumption.  See
Willis v. State, 790 S.W.2d 307, 309–10 (Tex. Crim. App. 1990); Webber
v. State, 29 S.W.3d 226, 230 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). 
Mandatory presumptions are unconstitutional because they relieve the State of
the burden of proving every element of the offense beyond a reasonable doubt.  Garrett
v. State, 220 S.W.3d 926, 930 (Tex. Crim. App. 2007).  Because appellant
did not object at trial to this error in the court’s charge, we cannot reverse
the conviction absent a finding that the error caused appellant to suffer
egregious harm.  Bellamy v. State, 742 S.W.2d 677, 685 (Tex. Crim. App.
1987); Almanza, 686 S.W.2d at 171–72.
            The
jury charge contained the presumption on the first page.  The jury charge 
instructed the jury that “[a]ll persons are presumed to be innocent and no
person may be convicted of an offense unless each element of the offense is
proved beyond a reasonable doubt.”  The charge also instructed the jury that “[t]he
law does not require a defendant to prove his innocence or produce any evidence
at all.”  And the application paragraph included an instruction that the jury
had to find “that the [defendant] did then and there, intentionally or
knowingly tamper with tangible property.”  Alone, the general instructions did
not remedy the error in the charge.  See State v. Lewis, 151 S.W.3d 213,
223 (Tex. App.—Tyler 2004, pet. ref’d). But, the State discussed the presumption
(and the facts to support it) during voir dire and during closing argument.
            The
State began closing argument with a discussion of the presumption:
[W]hat makes this
case so unique, as I told you during voir dire, is that for this offense,
unlike hundreds of others, there is a presumption besides a presumption of
innocence.  And, that is, by law there is a presumption that if you’re
receiving the economic benefit, then you knowingly cause the damage to the
power supply.  Now, economic benefit?  I would say getting electricity without
paying for it is an economic benefit.
 
            The
State then reminded the jury that it had the burden of proof and promised to
review the facts that supported the presumption.  In his closing argument, appellant
acknowledged that someone tampered with the electric meter, but argued that the
evidence was insufficient to show that he received the benefit of the diverted
electricity.  In finishing its closing argument, the State emphasized the
testimony that supported the application of the presumption to appellant.  
            Courts
of appeals have held that, where the great weight of the evidence supports the
facts giving rise to the presumption, egregious harm has not occurred.  See Tottenham
v. State, 285 S.W.3d 19, 29–32 (Tex. App.—Houston [1st Dist.] 2009, no
pet.); Neely v. State, 193 S.W.3d 685, 688 (Tex. App.—Waco 2006, no
pet.); Lewis, 151 S.W.3d at 224; Webber, 29 S.W.3d at 237.  We
have previously reviewed the evidence that supports the facts giving rise to
the presumption: appellant was in control and management of the house as his
residence and appellant benefitted from the tampered electric meter.  We cannot
say that appellant suffered egregious harm because the trial court failed to
specifically instruct the jury as required by Section 2.05(a).  Appellant’s
fourth issue is overruled.
            In
appellant’s final issue, he argues that the trial court erred in charging the
jury on the statutory presumption because the court’s charge was
unconstitutional as applied to appellant and because the inclusion of the
presumption constituted a comment on the weight of the evidence.  Appellant has
provided no rationale or authority to support these two contentions.  Tex. R. App. P. 38.  Appellant’s fifth issue is overruled.  
This
Court’s Ruling
            The
judgment of the trial court is affirmed.
 
 
                                                                                                TERRY
McCALL
                                                                                                JUSTICE
 
September 6, 2012
Publish.  See Tex. R. App. P. 47.2(b).
Panel[2]
consists of: Wright, C.J., 
McCall, J.,  and Hill.[3]




                [1]See
Green v. State, 893 S.W.2d 536, 538 (Tex. Crim. App. 1995), for a
discussion of Gersh and Davis.  


                [2]Eric Kalenak, Justice, resigned effective September 3,
2012.  The justice position is vacant pending appointment of a successor by the
governor or until the next general election.
 


                [3]John G. Hill, Former Chief Justice, Court of Appeals, 2nd
District of Texas at Fort Worth, sitting by assignment.


