                                           COURT OF APPEALS
                                        EIGHTH DISTRICT OF TEXAS
                                             EL PASO, TEXAS

                                                             §
VICTOR MANUEL GALLEGOS,                                                          No. 08-14-00276-CR
                                                             §
                                      Appellant,                                    Appeal from the
                                                             §
v.                                                                             County Court at Law No. 7
                                                             §
THE STATE OF TEXAS,                                                            of El Paso County, Texas
                                                             §
                                       Appellee.                                 (TC# 20120C01670)
                                                             §

                                                   OPINION

          Victor Manuel Gallegos is appealing his conviction of theft. Finding that the evidence is

insufficient to support Gallegos’s conviction, we reverse the judgment and render a judgment of

acquittal.

                              PROCEDURAL AND FACTUAL SUMMARY

          Gallegos was charged with five misdemeanor offenses alleged to have been committed

on June 26, 2011: (1) class-A misdemeanor criminal mischief (cause number 20120C00815); (2)

burglary of a vehicle (cause number 20120C00942); (3) burglary of a vehicle (cause number

20120C01669); (4) theft (cause number 20120C01670); and (5) evading arrest (cause number

20120C00778). Gallegos entered a plea of not guilty to each charge1 and the cases were tried

together before a jury.


1
    The judgment erroneously recites that Gallegos entered a plea of guilty.
       The evidence showed that Gallegos and Julio Acosta attempted to enter the Nova Luna

bar through a back door used only by bar personnel and band members. One of the bar’s

security guards, Fernando Chavez, stopped them and told them they had to enter through the

front door and pay the cover charge like everyone else. Chavez watched Gallegos and Acosta

get into their vehicle and drive “crazy” through the parking lot. The vehicle stopped and one

man got out of the car while the other man parked the vehicle. Acosta walked through the

parking lot and checked vehicle doors to see if they were locked. Chavez continued watching

from behind a rock wall, and he saw Acosta take the hubcaps off of a truck while Gallegos acted

as a lookout. Chavez alerted other security personnel at the bar when he saw Gallegos chasing

one of the parking lot attendants.

       Deputy Sheriff Juan Munoz was patrolling in the area that evening, and as he drove by

Nova Luna, one of the bar’s security guards flagged him down. The security guard told him that

two men were trying to break into cars in the parking lot. Munoz sometimes worked off-duty

security at the bar, so he was familiar with the area. Munoz drove his patrol unit into the parking

lot and used a spotlight to find the two men. Both men ran away when they saw him, and after a

brief chase, Munoz caught Acosta and took him into custody. The bar’s security personnel told

Munoz that the second subject had run northbound. Munoz drove his patrol unit toward a nearby

business and found Gallegos crouching behind a dumpster, but when Munoz told him not to

move, Gallegos jumped over a wall that was six feet in height. Gallegos ran back towards Nova

Luna with Munoz in pursuit. The bar’s security personnel moved toward Gallegos and he

stopped running. Munoz caught up to Gallegos and took him into custody.


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        After securing Acosta and Gallegos, Munoz checked the vehicles in the parking lot and

observed that the door to a Ford truck was open. The truck’s center console was open and a case

for eyeglasses was on the ground next to the truck. Munoz saw that the hubcaps were missing

from another truck. Munoz also noticed that a Mazda had damage to the door handle. He

located Gallegos’s gray Dodge Neon in the parking lot and saw items inside of the car which had

been stolen from vehicles in the bar’s parking lot.

        Gallegos’s co-defendant, Acosta, testified for the defense. Like Gallegos, he was charged

with five offenses, but he agreed to plead guilty to four of the offenses in exchange for dismissal

of one of the cases. Acosta had been placed on probation for fourteen months, and at the time of

trial, he had completed his probation and paid all of his fees. Acosta testified that he was driving

Gallegos’s vehicle that evening because Gallegos was more intoxicated. Acosta admitted that he

broke into cars in the Nova Luna parking lot, but he maintained that Gallegos did not assist him

in committing the offenses because he “didn’t want nothing to do with it.”

        Gallegos testified that he was extremely drunk that evening and he tried to convince

Acosta to stop breaking into cars, but Acosta would not listen to him. He denied acting as a

lookout, but he knew that Acosta was putting the stolen property in his car.

        The court’s charge included an instruction on the law of parties. The jury found Gallegos

guilty in all five cases. The trial court sentenced Gallegos to confinement for 365 days in the El

Paso County Jail, probated for six months, and “a fine of $300.00 Probated for $0.00.”2


2
   The trial court entered judgments of acquittal in the criminal mischief case (cause number 20120C00815) and in
the other burglary case (cause number 20120C00942). The State filed notice of appeal in those two cases (appellate
cause numbers 08-14-00271-CR and 08-14-00272-CR).

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                                SUFFICIENCY OF THE EVIDENCE

        In Issue Two, Gallegos challenges the legal sufficiency of the evidence supporting his

theft conviction because the State failed to prove that Phillip Luna was the owner of the

hubcaps.3 The State concedes that there is no evidence supporting the jury’s finding that Phillip

Luna owned the hubcaps. The State’s confession of error in a criminal case is important and

carries great weight, but it is not binding.            See Saldano v. State, 70 S.W.3d 873, 884

(Tex.Crim.App. 2002). We are required to independently examine the error confessed because

the proper administration of the criminal law cannot be left merely to the stipulation of parties.

Id.

                                Standard of Review and Applicable Law

        In reviewing the sufficiency of the evidence to determine whether the State proved the

elements of the offense beyond a reasonable doubt, we apply the Jackson v. Virginia standard.

Brooks v. State, 323 S.W.3d 893, 895-96 (Tex.Crim.App. 2010) (citing Jackson v. Virginia, 443

U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Under that well-known standard, a

reviewing court must consider all evidence in the light most favorable to the verdict and in doing

so determine whether a rational justification exists for the jury’s finding of guilt beyond a

reasonable doubt. Brooks, 323 S.W.3d at 894-95 (citing Jackson, 443 U.S. at 319, 99 S.Ct. at

2789). The trier of fact is the sole judge of the weight and credibility of the evidence, and we

must presume that the fact finder resolved any conflicting inferences in favor of the verdict and

defer to that resolution. See TEX.CODE CRIM.PROC.ANN. art. 38.04 (West 1979); Dobbs v. State,


3
  Gallegos filed a single brief in cause numbers 08-14-00274-CR, 08-14-00275-CR, and 08-14-00276-CR raising a
total of six issues. Issues Two, Four, and Five are the only issues pertinent to this appeal.
                                                    -4-
434 S.W.3d 166, 170 (Tex.Crim.App. 2014). Further, we are not permitted to reevaluate the

weight and credibility of the evidence or substitute our judgment for that of the fact finder.

Isassi v. State, 330 S.W.3d 633, 638 (Tex.Crim.App. 2010). Our task is to determine whether,

based on the evidence and reasonable inferences drawn therefrom, a rational juror could have

found the essential elements of the crime beyond a reasonable doubt. Id.

         A person commits theft if he unlawfully appropriates property with the intent to deprive

the owner of the property. TEX.PENAL CODE ANN. § 31.03(a)(West Supp. 2015). The State is

required to allege the name of the owner of the property. TEX.CODE CRIM.PROC.ANN. arts.

21.08, 21.09 (West 2009);4 Byrd v. State, 336 S.W.3d 242, 251-52 (Tex.Crim.App. 2011). When

the State alleges ownership in the actual owner or a special owner, it has the burden of proving

beyond a reasonable doubt the ownership allegation. Freeman v. State, 707 S.W.2d 597, 603

(Tex.Crim.App. 1986); Lopez v. State, 899 S.W.2d 300, 302 (Tex.App.--El Paso 1995, pet.

ref’d). Further, the State is required to prove that the person alleged in the charging instrument

as the owner is the same person as shown by the evidence. See Byrd, 336 S.W.3d at 252.

                                           No Evidence of Ownership

         The information alleged that Gallegos unlawfully appropriated, by acquiring and

otherwise exercising control over property other than real property, to-wit: hubcaps of the value

of $50 or more but less than $500, without the effective consent of the owner, namely Phillip

Luna, with intent to deprive the owner of the property. As observed by the State, there is no

evidence in the record that Phillip Luna owned the hubcaps as alleged in the information. We


4
  Article 21.09 states the requirements for an indictment, but the rules pertaining to allegations in an indictment and
the certainty required also apply to an information. TEX.CODE CRIM.PROC.ANN. art. 21.23 (West 2009).
                                                         -5-
conclude that the evidence is legally insufficient to support Gallegos’s conviction of theft in

cause number 20120C01670. We sustain Issue Two, reverse the judgment of conviction, and

render a judgment of acquittal. It is unnecessary to address Issues Four and Five.


                                             STEVEN L. HUGHES, Justice
December 9, 2015

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)




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