                                                                                  ACCEPTED
                                                                              03-15-00445-CR
                                                                                      7847963
                                                                   THIRD COURT OF APPEALS
                                                                              AUSTIN, TEXAS
                                                                        11/16/2015 3:16:32 PM
                                                                            JEFFREY D. KYLE
                                                                                       CLERK
                            No. 03-15-00445-CR

                                In the                    FILED IN
                                                   3rd COURT OF APPEALS
                        COURT OF APPEALS                AUSTIN, TEXAS
                               For the             11/16/2015 3:16:32 PM
               THIRD SUPREME JUDICIAL DISTRICT JEFFREY D. KYLE
                              at Austin                     Clerk
               ______________________________________

             On Appeal from the 426th Judicial District Court of
                           Bell County, Texas
                          Cause Number 73,714
              ______________________________________

            RONICESHA CHERRON WEARREN, Appellant
                                v.
                 THE STATE OF TEXAS, Appellee
              _____________________________________

                        APPELLANT’S BRIEF
                _____________________________________



Counsel for Appellant                    KRISTEN JERNIGAN
Ronicesha Cherron Wearren                ATTORNEY AT LAW
                                         STATE BAR NUMBER 90001898
                                         207 S. AUSTIN AVE.
                                         GEORGETOWN, TEXAS 78626
                                         (512) 904-0123
                                         (512) 931-3650 (FAX)
                                         Kristen@txcrimapp.com



                   ORAL ARGUMENT REQUESTED
                       IDENTIFICATION OF PARTIES

      Pursuant to Texas Rule of Appellate Procedure 38.1, a complete list of the
names of all interested parties is provided below so the members of this Honorable
Court may at once determine whether they are disqualified to serve or should
recuse themselves from participating in the decision of this case.

Appellant:

Ronicesha Cherron Wearren

Counsel for Appellant:

Joseph C. Weiner (at trial)
P.O. Box 298
Belton, Texas 76513

Kristen Jernigan (on appeal)
207 S. Austin Ave.
Georgetown, Texas 78626

Counsel for Appellee, The State of Texas:

Henry Garza
Bell County District Attorney

Anne Potts-Jackson
Shelly Stimple
Assistant District Attorneys
1201 Huey Road
P.O. Box 540
Belton, Texas 76513

Trial Court Judge:

The Honorable Fancy H. Jezek



                                        ii
                                     TABLE OF CONTENTS


IDENTIFICATION OF PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . vii

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

ARGUMENT & AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

        1.       The evidence is insufficient to support Appellant’s conviction
                 because the State failed to show the fair market value of the
                 property allegedly stolen.

        2.       The evidence is insufficient to support Appellant’s conviction
                 because the State failed to prove Appellant had the intent to
                 deprive anyone of the allegedly stolen property where it
                 appeared the property had been abandoned.

PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

CERTIFICATE OF WORD COUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19




                                                      iii
                                      INDEX OF AUTHORITIES

CASES

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) . . . . . . . . . . .8, 10, 11, 15

Griffin v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981) . . . . . . . . . . . . . . . . 12, 15

Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . . . 8, 10

Ingram v. State, 261 S.W.3d 749 (Tex. App.—Tyler 2008) . . . . . . . . . . . . . . . . . 11

Jackson v. Virginia, 443 U.S. 307 (1979) . . . . . . . . . . . . . . . . . . . . . . . 8, 10, 11, 15

King v. State, 174 S.W.3d 796 (Tex. App.—Corpus Christi 2005) . . . . . . . . .11, 15


STATUTES AND RULES
TEX. PENAL CODE § 31.03(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

TEX. PENAL CODE § 31.08(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

TEX. R. APP. P. 38.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TEX. R. APP. P. 39.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v




                                                           iv
              STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to Texas Rule of Appellate Procedure 39.1, Appellant requests oral

argument in this case.




                                       v
                              No. 03-14-00445-CR

                                  In the
                          COURT OF APPEALS
                                 For the
                 THIRD SUPREME JUDICIAL DISTRICT
                                at Austin
                 ______________________________________

                On Appeal from the 426th Judicial District Court of
                           Williamson County, Texas
                             Cause Number 73,714
                 ______________________________________

              RONICESHA CHERRON WEARREN, Appellant
                                  v.
                   THE STATE OF TEXAS, Appellee
                _____________________________________

                          APPELLANT’S BRIEF
                  _____________________________________


                         STATEMENT OF THE CASE

      On December 17, 2014, Appellant was indicted for the felony offense of

theft of property of the value of $1,500.00 or more but less than $20,000.00.

(CR: 4-6).    On June 9, 2015, a jury found Appellant guilty and assessed

Appellant’s punishment at fourteen months confinement in the Texas Department

of Criminal Justice – State Jail Division.    (CR: 50).   The Court also ordered

restitution in the amount of $4,000.00.   (CR: 50).   Appellant timely filed Notice



                                          1
of Appeal on June 11, 2015.         (CR: 36).1       This appeal results.

                              STATEMENT OF FACTS

        At trial, Juan Rodriguez testified that he owns some land in Killeen on

which he plans to build a house in the future.                   (RR5: 23).   According to

Rodriguez, the property is in a subdivision neighborhood with houses on either

side.     (RR5: 23).     On the property were twenty to twenty-five fence panels

which Rodriguez got in trade from a job he did for a friend.                     (RR5: 24).

Specifically, Rodriguez painted and repaired a vehicle in exchange for the fence

panels.     (RR5: 25).      Rodriguez estimated the value of his work between

$3,000.00 and $3,500.00.       (RR5: 26).        Rodriguez told the jury that he believed

the value of the fence panels to be over $3,000.00 based on quotes he got from

Lowe’s and Home Depot.         (RR5: 26-27).          However, Rodriguez admitted that he

did not know whether the fence panels he received in trade were used or not.

(RR5: 30).     Rodriguez stated that the fence panels were taken some time in

November of 2014, but he could not be sure of the date since he would go periods

of time without visiting the property.      (RR5: 39).         It was Rodriguez’s contention

that when the fence panels were taken from his property, they were laying 160 feet

from the street.       (RR5: 31).     On cross-examination, Rodriguez acknowledged
1
   Appellant filed a pro se Notice of Appeal on June 11, 2015. (CR: 36). Once the
undersigned was appointed by the Court, Notice of Appeal was also filed on June 16, 2015.
(CR: 42).

                                                 2
that he did not have a “no trespassing” sign on his property and that he does not

live on the property.       (RR5: 51-52).     Rodriguez acknowledged further that he

actually got the fence panels before he started repairing and painting his friend’s

vehicle.   (RR5: 54).   Rodriguez admitted that he did not get a written receipt for

the fence panels and the quotes he received from Home Depot and Lowe’s were

for new fence panels, not used fence panels.       (RR5: 56).   Rodriguez agreed that

there was no concrete slab poured or any framework for a home on his property,

nor was there a mailbox.      (RR5: 57-58).

      Jason Davis with the Bell County Sheriff’s Department told the jury that on

November 23, 2014, he was on patrol and dispatched to an address in Killeen

which was “not really a neighborhood,” but “lots” which ranged in size from half

of an acre to five acres.     (RR5: 71).    When he arrived at the address, Rodriguez

informed him some fence panels had been taken.            (RR5: 73-74).   Davis took

some notes, which included Rodriguez’s estimate of the value of the fence panels.

(RR5: 75).

      Damien Deville told the jury that he is employed at Centex Scrap and Metal

which is a recycling center for materials such as metal, plastic, copper and

aluminum.    (RR5: 85-86).      Deville stated that on November 18, 2014, Appellant,

a regular customer, brought in some “typical just flat-out tin.”          (RR5: 92).


                                              3
Appellant, who showed her ID and gave Deville her name and address, dropped off

some metal fence panels.      (RR5: 98).        Deville offered that he had “no idea”

whether the value of the items was the same if they were used for scrap or whether

they were used in their natural state.     (RR5: 99).       On cross-examination, Deville

related that Appellant was a regular customer, like many others, who made a living

by responding to calls from Centex and Scrap and Metal to collect abandoned

materials and bring them for recycling.         (RR6: 9).    After Appellant dropped off

the fence panels on November 18, 2014, she returned several times to turn in

materials for recycling, even after the Sheriff’s Department contacted Centex about

Rodriguez’s claim of stolen fence panels.            (RR6: 11).       Deville stated that

Appellant is “still a valued customer.”     (RR6: 13).

      Justin Kelly, an investigator with the Bell County Sheriff’s Department, told

the jury that after Rodriguez’s initial report, he traveled to Centex on November

24, 2014.    (RR6: 25).     While he was there, Appellant arrived with some

materials to recycle.   (RR6: 29).       Kelly asked Appellant whether she had sold

fence panels to Centex and Appellant replied that she had and gave Kelly the

location where she found the panels.        (RR6: 29-30).       Appellant told Kelly that

she thought the fence panels had been abandoned and that she scraps metal for a

living.   (RR6: 31).    Kelly asked Appellant if she would show him where she


                                            4
found the panels and she agreed so Kelly followed her to the location.   (RR6: 32).

Once there, Appellant voluntarily showed Kelly where on the property she found

the fence panels and explained she thought they were abandoned.      (RR6: 40-41).

Some time later, Kelly contacted Rodriguez and asked him if he wanted to pursue

charges and he replied that he did.   (RR6: 46).     Kelly stated that he contacted

Lowe’s to determine the replacement value of the fence panels and determined it

was $4,000.00.   (RR6: 50).    On cross-examination, Kelly agreed that there was

no mailbox at the vacant lot where the fence panels were located.   (RR6: 53).   In

addition, there was no sign that the property belonged to Rodriguez or anyone else.

(RR6: 53).    Kelly admitted that he never contacted the person who gave

Rodriguez the fence panels in trade to determine the value of the fence panels.

(RR6: 54).   Kelly admitted further that he had no idea as to the condition of the

fence panels on November 18, 2014.           (RR6: 54).   Kelly acknowledged that

Appellant was very cooperative when he spoke to her and that she readily admitted

she obtained the fence panels but thought they were abandoned.           (RR6: 55).

Kelly acknowledged further that it appeared the lot where Appellant obtained the

fence panels was vacant.      (RR6: 57).      Finally, Kelly agreed that he never

obtained any receipts or documentation to show how much the value of the fence

panels in question actually was.   (RR6: 60).    At the close of Kelly’s testimony,


                                         5
the State rested its case-in-chief.     (RR6: 62).

      Appellant testified that she is a former United States Coast Guard member

and lives in Killeen with her four adopted children.              (RR6: 64).    Appellant

related to the jury that she grew up in a home where her family would go “junking”

and would find items to sell.         (RR6: 65).     At the time of trial, Appellant made

her living “scrapping” by finding free items on Craigslist, finding free items on

trash days, and picking up items Centex alerted her to.                  (RR6: 66).   On

November 18, 2014, Appellant went to the area of Creek’s Place because it was

their trash day and because she had picked up recyclable materials from that area

previously, based on Craigslist advertisements.         (RR6: 70).   Appellant stated that

she saw some of the fence panels near the road so she stopped.                 (RR6: 71).

There was no home on the property, no signs, and the only fences she saw

belonged to neighboring houses.         (RR6: 72).     There was no mailbox and nothing

to indicate the property was owned by anyone so Appellant thought it was a

dumpsite.    (RR6: 72).    Appellant decided to load the fence panels in her van and

while she did so, a school bus pulled up to drop off children after school and a

neighbor waved to her.        (RR6: 73).         Appellant then drove to Centex, gave

Deville her ID, and helped unload the fence panels.         (RR6: 74).    Appellant could

not fit all of the fence panels in her van on her first trip, so Appellant went back to


                                             6
the lot and loaded the rest of the fence panels.    (RR6: 75).    She then returned to

Centex and repeated the process.       (RR6: 78).     On November 25, 2014, she

voluntarily spoke to Investigator Kelly and offered to take him to the location

where she found the fence panels.      (RR6: 78).    Kelly never told Appellant she

could speak to an attorney and never indicated to Appellant that he considered the

items stolen or that she was under arrest.    (RR6: 78).       Between November 25,

2014, and the time of trial, June 9, 2015, Appellant continued doing business with

Centex and had been there over 200 times.            (RR6: 79).      At the close of

Appellant’s testimony, the defense rested its case-in-chief.     (RR6: 94).

                              ISSUES PRESENTED

      1.     The evidence is insufficient to support Appellant’s conviction
             because the State failed to show the fair market value of the
             property allegedly stolen.

      2.     The evidence is insufficient to support Appellant’s conviction
             because the State failed to prove Appellant had the intent to
             deprive anyone of the allegedly stolen property where it
             appeared the property had been abandoned.

                         SUMMARY OF THE ARGUMENT

      Appellant’s first point of error should be sustained because the State failed

to show the fair market value of the property allegedly stolen where that value was

readily ascertainable.    Appellant’s second point of error should be sustained

because the State failed to show Appellant had the requisite intent to deprive

                                          7
anyone of the property allegedly stolen where it appeared the property had been

abandoned.

                         ARGUMENT & AUTHORITIES

      I.      The evidence is insufficient to show the fair market value of
              the property allegedly stolen.

      Appellant’s first point of error should be sustained because the State failed

to show the fair market value of the property allegedly stolen where that value was

readily ascertainable.   The Court of Criminal Appeals has held that the legal

sufficiency standard set out in Jackson v. Virginia, 443 U.S. 307, 320 (1979), is the

only standard that a reviewing court should apply when determining the

sufficiency of the evidence.   Brooks v. State, 323 S.W.3d 893, 896 (Tex. Crim.

App. 2010).    When reviewing the legal sufficiency of the evidence, an appellate

court views the evidence in the light most favorable to the verdict and determines

whether any rational trier of fact could have found the essential elements of the

offense beyond a reasonable doubt.       Jackson, 443 U.S. at 320; Brooks, 323

S.W.3d at 896.

      Although juries are permitted “to draw multiple reasonable inferences as

long as each inference is supported by the evidence presented at trial,” a jury is

“not permitted to draw conclusions based on speculation.”      Hooper v. State, 214

S.W.3d 9, 15-16 (Tex. Crim. App. 2007).

                                         8
      The value of property in theft prosecutions is proven by:

      (1) the fair market value of the property at the time and place of the offense,
      or

      (2) if the fair market value of the property cannot be ascertained, the cost of
      replacing the property within a reasonable time after the theft.

TEX. PENAL CODE § 31.08(a).

      In the present case, Rodriguez stated that he received the fence panels from a

friend in trade for some work done on a car.    Rodriguez admitted that he did not

know whether the fence panels he received in trade were used or not.      Rodriguez

admitted that he did not get a written receipt for the fence panels and the quotes he

received from Home Depot and Lowe’s were for new fence panels, not used fence

panels.

      Investigator Kelly admitted that he never contacted the person who gave

Rodriguez the fence panels in trade to determine the value of the fence panels.

Kelly admitted further that he had no idea as to the condition of the fence panels on

November 18, 2014.     Finally, Kelly agreed that he never obtained any receipts or

documentation to show how much the value of the fence panels in question

actually was.

      A simple phone call by Kelly to the person who gave Rodriguez the fence

panels would have determined whether the fence panels were new or used and the


                                         9
value of the panels.     However, the State did not bother to obtain that information

to Appellant’s detriment.     Section 31.08(a) of the Texas Penal Code is very clear

that the State is required to prove the fair market value of the property allegedly

stolen and can rely on replacement value only “if the fair market value of the

property cannot be ascertained.”      TEX. PENAL CODE § 31.08(a).      Clearly, the fair

market value could have been ascertained; the State simply chose not to do so.

         The State did not prove the fair market value of the property allegedly stolen

when it was readily ascertainable, and instead, offered evidence of replacement

value.     This is not permitted under the statute.   See TEX. PENAL CODE § 31.08(a).

Further, by not offering any evidence as to the fair market value of the fence

panels, the State failed to prove an essential element of the offense beyond a

reasonable doubt.      See Jackson, 443 U.S. at 320; Brooks, 323 S.W.3d at 896.

The jury’s finding of value of over $1,500.00 is nothing more than speculation,

which is forbidden.      See Hooper v. State, 214 S.W.3d 9, 15-16 (Tex. Crim. App.

2007).     Accordingly, Appellant’s first point of error should be sustained.




                                            10
      II.      The evidence is insufficient to show Appellant had the
               requisite intent to deprive anyone of the property allegedly
               stolen where the property appeared abandoned.

      Appellant’s second point of error should be sustained because there is no

evidence that Appellant intended to deprive anyone of the property allegedly

stolen.     As discussed above, The Court of Criminal Appeals has held that the

legal sufficiency standard set out in Jackson v. Virginia, 443 U.S. 307, 320 (1979),

is the only standard that a reviewing court should apply when determining the

sufficiency of the evidence.    Brooks v. State, 323 S.W.3d 893, 896 (Tex. Crim.

App. 2010).      When reviewing the legal sufficiency of the evidence, an appellate

court views the evidence in the light most favorable to the verdict and determines

whether any rational trier of fact could have found the essential elements of the

offense beyond a reasonable doubt.        Jackson, 443 U.S. at 320; Brooks, 323

S.W.3d at 896.     To prove the offense of theft, the State is required to prove that

the person charged had the requisite intent to deprive an owner of his property

beyond a reasonable doubt.     TEX. PENAL CODE § 31.03(a).

      It “is possible to take possession of abandoned property without committing

a theft or intending to commit a theft.”      Ingram v. State, 261 S.W.3d 749, 754

(Tex. App.—Tyler 2008).        Intent to deprive is determined from the words and

acts of the accused.     King v. State, 174 S.W.3d 796, 810 (Tex. App.—Corpus


                                         11
Christi 2005), citing Griffin v. State, 614 S.W.2d 155, 159 (Tex. Crim. App. 1981).

      In the instant case, Appellant testified that on November 18, 2014, she was

“scrapping” and went to the area of Creek’s Place because it was their trash day.

She also went there because she had picked up recyclable materials from that area

previously based on Craigslist advertisements.      Appellant stated that she saw

some of the fence panels near the road so she stopped.     There was no home on the

property, no signs, and the only fences she saw belonged to neighboring houses.

There was no mailbox and nothing to indicate the property was owned by anyone

so Appellant thought it was a dumpsite.       Appellant decided to load the fence

panels in her van and while she did so, a school bus pulled up to drop off children

after school and a neighbor waved to her.     Appellant then drove to Centex, gave

Deville her ID, and helped unload the fence panels.      Appellant could not fit all of

the fence panels in her van on her first trip, so Appellant went back to the lot and

loaded the rest of the fence panels.   She then returned to Centex and repeated the

process.   Appellant then voluntarily spoke to Investigator Kelly and offered to

take him to the location where she found the fence panels.

       Deville testified that when Appellant brought the fence panels to Centex,

she showed her ID and gave her name and address. Deville testified further that

Appellant was a regular customer, like many others, who made a living by


                                         12
responding to calls from Centex and Scrap and Metal to collect abandoned

materials and bring them for recycling.       After Appellant dropped off the fence

panels on November 18, 2014, she returned several times to turn in materials for

recycling, even after the Sheriff’s Department contacted Centex about Rodriguez’s

claim of stolen fence panels.     Deville stated that Appellant is “still a valued

customer.”

      When Investigator Kelly spoke with Appellant, she told Kelly that she sold

fence panels to Centex and volunteered to take Kelly to the location where she

found the panels.   Appellant told Kelly that she thought the fence panels had been

abandoned and that she scraps metal for a living.           Once there, Appellant

voluntarily showed Kelly where on the property she found the fence panels and

again explained she thought they were abandoned. On cross-examination, Kelly

acknowledged that Appellant was very cooperative when he spoke to her and that

she readily admitted she obtained the fence panels but thought they were

abandoned.

      In support of Appellant’s belief that the fence panels were abandoned, the

testimony elicited at trial was that there was no mailbox at the vacant lot where the

fence panels were located.      In addition, there was no sign that the property

belonged to Rodriguez or anyone else.          Kelly acknowledged further that it


                                         13
appeared the lot where Appellant obtained the fence panels was vacant.      Officer

Davis testified that the address he was dispatched to was “not really a

neighborhood,” but “lots” which ranged in size from half of an acre to five acres.

Rodriguez acknowledged that he did not have a “no trespassing” sign on his

property and that he does not live on the property.   Rodriguez agreed that there

was no concrete slab poured or any framework for a home on his property, nor was

there a mailbox.

      Appellant’s words and actions show that she thought the fence panels were

abandoned.   Why else would she give her ID, name, and address to Deville when

she brought the fence panels to Centex?     In addition, she waved to a neighbor

when loading the panels and returned to what she believed to be a dumpsite when

she could not fit all of the panels in her van on the first trip.     Appellant was

clearly not attempting to conceal her identity or hide her actions.    When asked

about the panels by law enforcement, she was cooperative and even took

Investigator Kelly to the location where she found the panels and told Kelly

repeatedly that she believed they were abandoned because the lot where she found

them was a dumpsite.

      The State failed to prove Appellant had the requisite intent to deprive

Rodriguez of his property because her actions and words show she believed the


                                       14
property in question was abandoned.      See King v. State, 174 S.W.3d 796, 810

(Tex. App.—Corpus Christi 2005), citing Griffin v. State, 614 S.W.2d 155, 159

(Tex. Crim. App. 1981).    As such, the State failed to prove an essential element of

the offense beyond a reasonable doubt and Appellant’s second point of error

should be sustained.   Jackson, 443 U.S. at 320; Brooks, 323 S.W.3d at 896.

                                     PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays

that this Court reverse the judgment and sentence in this case.

                                              Respectfully submitted,


                                              _____”/s/” Kristen Jernigan_______
                                              KRISTEN JERNIGAN
                                              State Bar Number 90001898
                                              207 S. Austin Ave.
                                              Georgetown, Texas 78626
                                              (512) 904-0123
                                              (512) 931-3650 (fax)
                                              Kristen@txcrimapp.com




                                         15
                        CERTIFICATE OF SERVICE

      The undersigned hereby certifies that a true and correct copy of the

foregoing Appellant’s Brief has been mailed on November 16, 2015, to the Bell

County District Attorney’s Office, 1201 Huey Road, Belton, Texas 76513.


                                    ________”/s/” Kristen Jernigan__________
                                    Kristen Jernigan



                    CERTIFICATE OF WORD COUNT

      The undersigned hereby certifies that the foregoing document consists of

4,464 words in compliance with Texas Rule of Appellate Procedure 9.4.



                                    ________”/s/” Kristen Jernigan__________
                                    Kristen Jernigan




                                      16
