i          i        i                                                                             i        i       i




                                    MEMORANDUM OPINION

                                              No. 04-08-00401-CR

                                            David RABINOWITZ,
                                                  Appellant

                                                         v.

                                             The STATE of Texas,
                                                   Appellee

                        From the County Court at Law No. 8, Bexar County, Texas
                                        Trial Court No. 241525
                               Honorable Karen Crouch, Judge Presiding

Opinion by:       Rebecca Simmons, Justice

Sitting:          Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: July 15, 2009

AFFIRMED

           David Rabinowitz was convicted by a jury of misdemeanor theft. On appeal, Rabinowitz

asserts: (1) the evidence is legally insufficient to support his conviction; (2) the trial court abused

its discretion in refusing to dismiss the indictment1 based on the State’s destruction of potentially



         … Although appellant’s brief uses the term “indictment” in referring to the charging instrument, the charging
           1

instrument contained in the record is an “information.”
                                                                                       04-08-00401-CR

exculpatory evidence; (3) the trial court erred in failing to instruct the jury regarding the State’s

destruction of potentially exculpatory evidence; and (4) the trial court erred in admitting testimony

regarding a statement made by Rabinowitz. Because the issues in this appeal involve the application

of well-settled principles of law, we affirm the trial court’s judgment in this memorandum opinion.

                                       LEGAL SUFFICIENCY

       In determining the legal sufficiency of the evidence, we review 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 offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319

(1979); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). “The jury is the

exclusive judge of the credibility of witnesses and of the weight to be given their testimony.” Jones

v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). “Likewise, reconciliation of conflicts in the

evidence is within the exclusive province of the jury.” Id.

       Rabinowitz contends the evidence is legally insufficient to support his conviction because

he owned the hard drive and flashlight that were recovered from his pockets. Rudy Guevara, a loss

prevention officer employed by Costco Wholesale, testified that he observed Rabinowitz enter the

store and pick up a hard drive enclosed in blister pack packaging. Guevara later observed

Rabinowitz cut open the package, place the hard drive in his pocket, and hide the packaging behind

some other items on a shelf. Rabinowitz exited the store without paying for the hard drive. Guevara

stopped Rabinowitz and escorted him to Guevara’s office inside the store. Rabinowitz removed the

hard drive from his pocket and placed it on Guevara’s desk. Guevara retrieved the empty packaging

from the shelf and confirmed the hard drive was from the empty packaging. When a police officer

subsequently searched Rabinowitz after arresting him, the police officer recovered a flashlight from



                                                 -2-
                                                                                        04-08-00401-CR

Rabinowitz’s pocket. An assistant manager then located the packaging for the flashlight from which

the flashlight had been removed in the store. Photographs of the hard drive, the flashlight, and the

packaging were admitted into evidence. Because the foregoing evidence is legally sufficient to

support the jury’s finding that the hard drive and the flashlight were owned by Costco and not by

Rabinowitz, Rabinowitz’s first issue is overruled.

                              DISMISSAL OF CHARGING INSTRUMENT

        Rabinowitz next asserts that the trial court “abused its discretion in refusing to dismiss the

indictment as required by the motion to compel production of evidence against the Appellant and

the motion for new trial and motion in arrest of judgment based upon the destruction of potentially

exculpatory evidence, in violation of the Due Course of Law provisions of the Texas Constitution.”

Rabinowitz failed to obtain a ruling on the motion to compel and did not assert the destruction of

potentially exculpatory evidence as a ground in his motion for new trial and motion in arrest of

judgment. By failing to present this complaint to the trial court and obtain a ruling thereon,

Rabinowitz failed to preserve this issue for our review. TEX . R. APP . P. 33.1(a).

                                           JURY CHARGE

        In his third issue Rabinowitz complains that the trial court erred in refusing the instruct the

jury regarding the State’s destruction of potentially exculpatory evidence. Rabinowitz’s complaint

focuses on Costco’s policy of returning or destroying stolen merchandise to receive credit from the

vendor after the stolen merchandise is listed on a police report. Rabinowitz contends that he had

files on the hard drive that would have proven that he owned it. However, Rabinowitz never

requested the trial court to include an instruction in the jury charge, and a trial court has no duty to

sua sponte instruct a jury on unrequested defensive issues. See Posey v. State, 966 S.W.2d 57, 62



                                                  -3-
                                                                                         04-08-00401-CR

(Tex. Crim. App. 1998); see also Bennett v. State, 235 S.W.3d 241, 243-44 (Tex. Crim. App. 2007).

Accordingly, the trial court did not err in not instructing the jury regarding the State’s alleged

destruction of potentially exculpatory evidence, and Rabinowitz’s third issue is overruled.

                                     RABINOWITZ’S STATEMENT

         In his final issue, Rabinowitz asserts the trial court erred in allowing Guevara to testify that

Rabinowitz stated that he knew what he was doing was wrong. In his brief, Rabinowitz argues that

the statement should not have been admitted because he was in custody, he had invoked his right to

counsel, and he was not provided with the required warnings before the statement was taken. The

only objection Rabinowitz made to the testimony at trial, however, was hearsay. Because

Rabinowitz’s trial objection does not comport with the issue he raises on appeal, he has failed to

preserve his complaint for our review. See Sorto v. State, 173 S.W.3d 469, 476 (Tex. Crim. App.

2005).

                                             CONCLUSION

         The trial court’s judgment is affirmed.

                                                         Rebecca Simmons, Justice

DO NOT PUBLISH




                                                   -4-
