                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-13-00393-CR


RASHAD AZMI ELQUTOB                                                 APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


                                    ----------

     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
                   TRIAL COURT NO. 1334940R

                                    ----------

                        MEMORANDUM OPINION 1

                                    ----------

      Rashad Azmi Elqutob brings eight points challenging his convictions and

respective ten- and five-year sentences for engaging in organized criminal

activity and for theft by receiving stolen property valued at more than $200,000.

See Tex. Penal Code Ann. § 31.03(b)(2) (West Supp. 2014). The majority of his

points concern his contention that, because of the wording of the indictment, the


      1
       See Tex. R. App. P. 47.4.
jury charge, or both, he was not actually convicted of any offense under the penal

code. In his final point, he argues that the trial court abused its discretion by

excluding evidence of a witness’s prior criminal history. We affirm.

                                    Background

      The State initially charged appellant with three counts relating to his

alleged participation in a scheme to buy and sell stolen cell phones. However,

the State later waived count one, trying appellant on only counts two and three,

which the parties agreed to renumber to counts one and two. The first count

alleged that appellant,

      WITH THE INTENT TO ESTABLISH, MAINTAIN OR PARTICIPATE
      IN THE PROFITS OF A COMBINATION[,] . . . COMMITTED THEFT
      OVER $200,000 BY UNLAWFULLY APPROPRIATING, BY
      ACQUIRING OR OTHERWISE EXERCISING CONTROL OVER,
      PROPERTY OF THE VALUE OF MORE THAN TWO HUNDRED
      THOUSAND DOLLARS FROM THE OWNER OF THE PROPERTY
      WITH THE INTENT TO DEPRIVE THE OWNER OF THE
      PROPERTY; AND SAID DEFENDANT APPROPRIATED THE
      PROPERTY BELIEVING IT WAS STOLEN BY ANOTHER,
      PURSUANT TO ONE SCHEME AND CONTINUING COURSE OF
      CONDUCT THAT BEGAN ON OR ABOUT APRIL THE 7TH, 2009
      AND CONTINUED UNTIL ON OR ABOUT OCTOBER THE 10TH,
      2010 AND THE OWNER, QUANTITY, AND PROPERTY ARE
      LISTED BELOW:

      MIKE HOPKINS THE FOLLOWING QUANTITY AND TYPE OF
      CELL PHONES:

      [Listing 31 different types of cell phones with a different quantity of
      each]

      MONIQUE HEBERT-LOFGREN THE FOLLOWING QUANTITY
      AND TYPE OF CELL PHONES:

      [Listing 5 different types of cell phones in differing quantities]


                                          2
      MANUAL CANGAS THE FOLLOWING QUANTITY AND TYPE OF
      CELL PHONES:

      50 BLACKBERRY BOLD

In the second count, the State alleged that appellant,

      UNLAWFULLY     APPROPRIATE[D], BY  ACQUIRING    OR
      OTHERWISE EXERCISING CONTROL OVER, PROPERTY OF
      THE VALUE OF MORE THAN TWO HUNDRED THOUSAND
      DOLLARS FROM THE OWNER OF THE PROPERTY WITH THE
      INTENT TO DEPRIVE THE OWNER OF THE PROPERTY; AND
      SAID DEFENDANT APPROPRIATED THE PROPERTY BELIEVING
      IT WAS STOLEN BY ANOTHER,

      PURSUANT TO ONE SCHEME AND CONTINUING COURSE OF
      CONDUCT THAT BEGAN ON OR ABOUT APRIL THE 7TH, 2009
      AND CONTINUED UNTIL ON OR ABOUT OCTOBER THE 10TH,
      2010 AND THE OWNER, QUANTITY, AND PROPERTY ARE
      LISTED BELOW:

      [Listing the same types, quantities and owners of cell phones as
      alleged in Count One].

      The language in the jury charge tracked the language above from the

indictment. The jury convicted appellant of both counts.

                                Points on Appeal

      Seven of appellant’s eight points are related to the State’s word choice in

the indictment and jury charge. They focus primarily on the variance between

the language used in the indictment and charge to describe the theft offense

(also the underlying offense for the engaging in organized criminal activity

count)––whether appellant “appropriated the property believing it was stolen by

another”––and the language used in the penal code definition of theft––providing



                                        3
that appropriation of property is unlawful if, among other things, “the actor

appropriates the property knowing it was stolen by another.”         Id. (emphasis

added).    Appellant contends that “knowing” and “believing” have different

definitions; in other words, appellant argues that by convicting him of offenses

alleging that he appropriated property he only “believed” was stolen, the jury did

not convict him of any offense under the penal code.

Whether Indictment Alleged An Offense

      In his first and second points, appellant contends that the indictment is void

for using the word “believing” instead of “knowing” in alleging the offenses. The

State contends that appellant failed to preserve any error related to the

substance or form of the indictment because he did not object to the language

used in the indictment in the trial court.

      A defendant who does not object to defects of form or substance in an

indictment before trial fails to preserve any complaint about such defects. Teal v.

State, 230 S.W.3d 172, 176–77 (Tex. Crim. App. 2007). But an instrument that

does not meet the constitutional requisites of an indictment fails to confer subject

matter jurisdiction on the trial court; thus, a charging instrument that does not

meet the constitutional definition of an indictment may be challenged for the first

time on appeal. Smith v. State, 309 S.W.3d 10, 16–18 (Tex. Crim. App. 2010);

Teal, 230 S.W.3d at 179. The State characterizes appellant’s argument as a

complaint that the indictment fails to allege a required element of theft under the

penal code. See Studer v. State, 799 S.W.2d 263, 271–72 (Tex. Crim. App.


                                             4
1990) (holding that a charging instrument may be an indictment as contemplated

by the Texas constitution even if fails to charge each element of an offense). But

although appellant does state in his brief that because the indictment alleged an

incorrect mental state, it “failed to allege an element of the offense of theft,” he

also contends that the indictment is void because it wholly fails to allege an

offense.   See Cook v. State, 902 S.W.2d 471, 477 (Tex. Crim. App. 1995)

(holding that a charging instrument must allege (1) a person and (2) the

commission of an offense to be an indictment under the constitution).

       The proper test to determine if a charging instrument alleges an offense is

whether the allegations in it are clear and specific enough so that a person can

identify the offense alleged, i.e., the penal statute under which the State intends

to prosecute the defendant.        Teal, 230 S.W.3d at 180; Duron v. State, 956

S.W.2d 547, 550–51 (Tex. Crim. App. 1997). If the allegations are sufficiently

clear and specific, the indictment is sufficient to confer subject matter jurisdiction.

Teal, 230 S.W.3d at 180. “Stated another way: Can the trial court (and appellate

courts who give deference to the trial court’s assessment) and the defendant

identify what penal code provision is alleged and is that penal code provision one

that vests jurisdiction in the trial court?” Id.

       Section 31.03 of the penal code provides that (1) “[a] person commits an

offense if he unlawfully appropriates property with intent to deprive the owner of

property,” (2) that “[a]ppropriation of property is unlawful if . . . the property is

stolen and the actor appropriates the property knowing it was stolen by another,”


                                            5
and (3) that such an offense is “a felony of the first degree if the value of the

property stolen is $200,000 or more.” Tex. Penal Code Ann. § 31.03(a), (b)(2),

(e)(7). Comparing the wording of this statute and the wording of the two counts

in the indictment, we conclude that––regardless of how appellant has

characterized his argument––he is essentially complaining that the indictment

used an incorrect word to describe the mens rea of the alleged offenses. One

can discern from the wording of the indictment that the State is alleging in both

counts that (1) appellant (2) with the intent to deprive the complainants of cell

phones (3) unlawfully appropriated those cell phones (4) which were valued at

more than $200,000 and (5) that he thought another person had stolen the cell

phones. The code of criminal procedure, like the Texas Constitution, does not

require an indictment to directly track the wording used in the penal code to

describe an offense. See Tex. Code Crim. Proc. Ann. art. 21.17 (West 2009)

(“Words used in a statute to define an offense need not be strictly pursued in the

indictment; it is sufficient to use other words conveying the same meaning, or

which include the sense of the statutory words.”). We conclude and hold that the

indictment––by alleging that appellant unlawfully appropriated property he

believed to be stolen––was sufficiently clear and specific to allege the offenses in

counts one and two. Thus, the indictment is not constitutionally defective such

that appellant was relieved of the responsibility to object to its use of the word

“believing” rather than “knowing,” and appellant’s complaint about the wording of




                                         6
the indictment was not preserved for appeal. We overrule appellant’s first and

second points.

Whether Material Variance Renders Conviction Infirm

      In his sixth point, appellant contends that there is a fatal variance between

the language of the indictment, the jury charge, and the statute; thus, according

to appellant, the evidence is insufficient to support his convictions. However,

rather than explaining why the evidence adduced at trial does not support the

convictions under a hypothetically correct jury charge, appellant argues that the

evidence is insufficient “because the hypothetically correct jury charge is not

supported by the indictment.” This is not the standard of review that we must

follow.

      To determine whether the State has met its burden under Jackson v.

Virginia to prove a defendant guilty beyond a reasonable doubt, we compare the

elements of the crime as defined by the hypothetically correct jury charge to the

evidence adduced at trial. Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App.

2014). A hypothetically correct jury charge is one that “accurately sets out the

law, is authorized by the indictment, does not unnecessarily increase the State’s

burden of proof or unnecessarily restrict the State’s theories of liability, and

adequately describes the particular offense for which the defendant was tried.”

Id. (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). The

law as authorized by the indictment consists of the statutory elements of the

offense and those elements as modified by the indictment. Id.


                                        7
      There are two types of variances in an evidentiary-sufficiency analysis:

material variances and immaterial variances. Id. at 9. Immaterial variances do

not affect the validity of a criminal conviction; thus, a hypothetically correct jury

charge need not incorporate allegations that would give rise to only immaterial

variances. Id. But a material variance renders a conviction infirm, and the only

remedy is to render an acquittal. Id.

      Here, a hypothetically correct charge would have asked the jury in both

counts whether appellant unlawfully appropriated property “knowing” it was

stolen by another. See Tex. Penal Code Ann. § 31.03(b)(2). Appellant contends

that by charging him with unlawfully appropriating stolen property “believing” it

was stolen by another, the indictment modified the hypothetically correct jury

charge to change the mens rea of the offenses so that the State had to prove

appellant committed the offense of theft as set forth in section 31.03(b)(3) of the

penal code, which provides that appropriation of property is unlawful if “property

in the custody of any law enforcement agency was explicitly represented by any

law enforcement agent to the actor as being stolen and the actor appropriates

the property believing it was stolen by another.” Id. § 31.03(b)(3). Although we

agree that the evidence does not support convictions for theft as defined in penal

code section 31.03(b)(3) 2 or engaging in organized criminal activity based on the

same theft offense, we do not agree that the evidence is insufficient to support

      2
       As appellant states in his brief, “As the record demonstrates the facts
alleged, offense charged, and jury charge do not fit in this category.”


                                         8
his convictions based on the definition of theft in penal code section 31.03(b)(2),

according to the hypothetically correct jury charge as further defined by the

indictment.

      The penal code provides that “[a] person acts knowingly, or with

knowledge, with respect to the nature of his conduct or to circumstances

surrounding his conduct when he is aware of the nature of his conduct or that the

circumstances exist.” Id. § 6.03(b) (West 2011). “Believe” has been defined as

“to accept as the truth; to take as true, real”; or “to have confidence in a promise

or statement of (another person).” Flowers v. State, 890 S.W.2d 906, 916 (Tex.

App.––El Paso 1994, no pet.) (quoting Webster’s New Universal Unabridged

Dictionary 169 (1983)); see also Tex. Gov’t Code Ann. § 311.011(a) (West 2013)

(“Words and phrases shall be read in context and construed according to the

rules of grammar and common usage.”); Black’s Law Dictionary 184 (10th ed.

2014) (defining “believe” as “[t]o feel certain about the truth of”).

      The Court of Criminal Appeals has held in an indictment-sufficiency case

that “[t]he word ‘knowingly,’ as used in the context that a defendant knowingly

receives property that has been stolen, requires actual subjective knowledge,

rather than knowledge that would have indicated to a reasonably prudent man

that the property was stolen.” Dennis v. State, 647 S.W.2d 275, 280 (Tex. Crim.

App. 1983). But the Court of Criminal Appeals has also held that “[k]nowledge

that property was stolen can be shown by circumstantial evidence.” Chudleigh v.

State, 540 S.W.2d 314, 317 (Tex. Crim. App. 1976).


                                           9
      In construing the meaning of the word “know” as used in sections

22.011(b)(3) or (5) of the Penal Code, the First Court of Appeals discussed

section 31.03(b)(3) and held that the ordinary meaning of the word “know”––as

opposed to the statutory definition of “knowingly”––includes what is subjectively

true but also what the actor subjectively “believes” to be true but is untrue. See

Jiminez v. State, 727 S.W.2d 789, 792–93 (Tex. App.––Houston [1st Dist.] 1987,

pet. ref’d). Thus, a person can believe something to be true when it is not true,

but a person can also believe something to be true because it is true. Contrary

to appellant’s contention, then, the use of the word “believes” in the indictment

did not necessarily limit the jury to considering only whether appellant

“possessed knowledge that would have indicated to a reasonably prudent man

that the property was stolen”––in other words, that he believed the phones to be

stolen but they were not––rather than, also, whether appellant subjectively

believed the cell phones were stolen because they actually were.

      Appellant contends that the only evidence that could possibly support that

he knew the cell phones were actually stolen is testimony from J.A., an employee

at a Radio Shack kiosk in a Sam’s Club. 3 J.A. testified that he stole new Sprint




      3
       Appellant states in his brief: “One of the more important State’s witnesses
was J.A. (5 R.R. at 180). Mr. J.A. is the only person who testified that he
communicated with Appellant about cell phones and that Appellant had any
knowledge that any cell phones were stolen; thus, his testimony was vital to this
case.” We will use initials to refer to the witness as appellant did in his brief.


                                       10
cell phones 4 intended for a free-phone sales promotion by falsely indicating in the

business’s inventory system that the phones had been given to a customer as

part of the promotion when he had instead appropriated them. One day, J.A.

took several of the stolen BlackBerrys in new packaging to a gas station in

Arlington. He offered to sell the cell phones to several people; some declined,

but appellant agreed to buy them. 5 Over the next month or so, appellant bought

twenty or thirty cell phones from J.A. at the same gas station, meeting him

between ten and fifteen times. 6       J.A. did not tell appellant the phones were

stolen, but at some point, he told appellant that he was getting the phones from

work. 7

      Eventually, appellant asked J.A. to get him a different, more expensive

model of phone, and J.A. did so. Also, appellant introduced J.A. to his father and

told J.A. that his father would be buying the phones from now on. J.A. sold

between four to eight phones at a time to appellant’s father. Appellant and his

father both paid cash for the phones and were able to negotiate a lower price for

the phones from J.A. J.A. testified about when the police finally questioned him;

      4
        Even on cross-examination, J.A. testified unequivocally that he had stolen
the cell phones.
      5
          Specifically, J.A. told appellant, “I got some BlackBerr[y]s for cheap.”
      6
       J.A. testified that appellant told him, “If you keep them coming, I can keep
on buying them.”
      7
       J.A. had to tell appellant about where he was getting the phones because
appellant had started to complain that some of the phones had been locked.


                                            11
he told them, “how [he] met [appellant] and sold him a few phones, and how

[J.A.] was stealing them and . . . was getting them out [of] the system through

Sprint mainly.”

      J.A. explained that he stole the phones by either adding them to an

existing customer’s phone line without that customer’s permission or by creating

a new phone line specifically for that phone. After he added the phone to a line,

however, he would change the phone’s ESN 8 in the Sprint computer system so

that the ESN would no longer be associated with a phone line. According to J.A.,

a phone reported stolen or attributed to an existing account for too long without

being used is put on a “hot list,” and the phone is locked. 9 According to J.A.,

both appellant and his father had complained to him that some of the phones

they sold to other people were unusable because they were on a hot list, and

they asked J.A. to fix the problem. This occurred a few times when J.A. had

forgotten to switch the ESN in the system after adding a phone to a line. At the

request of appellant or his father, J.A. would remove the hot listed phone’s ESN

from the existing phone line, so that it would no longer show up on the hot list.

J.A. told both appellant and his father that he would fix the hot list problem with


      8
        ESN stands for electronic serial number. Each phone is assigned an ESN
that is assigned only to that phone and “should never change.”
      9
        One witness testified that if a cell phone is reported to a provider as being
stolen or lost, it cannot then be activated on that company’s network. She further
testified that in 2009, the hot list was available to businesses but not the general
public.


                                         12
those phones by “get[ting] them out [of] the system.” According to J.A., “Once

they [referring to appellant and his father] couldn’t use them, they knew [the

phones] had a phone number on them.” J.A. had also told appellant’s father to

sell the phones quickly so that they would not end up on the hot list. J.A. said

that appellant and his father bought four more phones “right after” complaining

about other phones J.A. sold them being on the hot list. An investigator who

interviewed J.A. about the stolen phones read part of J.A.’s second statement to

law enforcement: “I met his son [appellant] like two months before I met him. It

was in July. I sold him two phones -- the first two phones. I sold him like 15

more until he finally said, ‘They caught my dad.’”

      According to appellant, the jury could only reasonably have inferred from

J.A.’s testimony that a reasonable person would have believed that the phones

were stolen, not that appellant had actual, subjective knowledge that the phones

J.A. was selling him were stolen.      However, the jury could have reasonably

inferred from other circumstantial evidence in the record that appellant

subjectively knew the phones were stolen, in other words, that he believed the

phones were stolen and that they actually were stolen. See, e.g., Chudleigh, 540

S.W.2d at 317.

      Geoff Neimeth, the former director of security and loss prevention for ATC

Logistics & Electronics, a cell phone distributor for AT&T, testified about his 2009

investigation into missing, new BlackBerry Bold devices at the ATC facility.

According to Neimeth, ATC discovered that over 450 phones that had been


                                        13
logged in as arriving at the facility could not be accounted for. After a thorough

investigation, Neimeth concluded that the phones had been stolen although he

was never able to identify the method by which they were stolen or the person

who took them from the facility. The phones were discovered to be missing in

increments after periodic inventory counts: 19 on March 11, 2009, another 239

on April 7, 2009, another 102 on April 28, 2009, and, finally, another 101 on May

6, 2009. He found at least one of the phones in use, which indicated to him that

it, like the rest of the phones, had been stolen from the facility.

      Neimeth searched for sellers of BlackBerry Bold devices and discovered

that appellant was advertising unlocked BlackBerry Bold phones on eBay and

Craigslist. Neimeth explained that when a phone is unlocked, it will work on any

carrier’s network for which it is compatible, not just the carrier from whom the

consumer bought the phone. Neimeth also opined that there is no reason a

legitimate seller of a brand-new, in-the-box cell phone would offer it for sale

unlocked. However, he also admitted on cross-examination that a phone is not

necessarily stolen if it is unlocked.

      Manuel Cangas, the security manager for ATC, reported to Neimeth and

assisted with the investigation of the missing phones from ATC’s facility. Cangas

used a list of the missing phones’ serial numbers to search whether any of them

had been activated on a cell provider’s network. Cangas was able to contact one

of the phone users, who had bought his phone from Reemsales, a company run

by appellant. Cangas was also able to determine that appellant’s SIM card had


                                          14
been activated in at least two of the missing phones. 10 Finally, ATC was able to

locate at least six people who had purchased a missing ATC phone from

appellant.

      The evidence showed that appellant was an AT&T employee and that he

maintained a cell site for AT&T as a technician. Juan Wallace, a former AT&T

loss prevention investigator, was assigned to investigate the complaint regarding

the BlackBerry devices missing from ATC. Because some of the missing devices

showed evidence of activation with a company-owned AT&T device, Wallace

focused his investigation on “competitive employment and misuse of company

property.” Wallace discovered that appellant had been assigned five company-

owned AT&T devices––including a laptop and BlackBerry––and that he had two

personal employee cell phone numbers with AT&T. Wallace then ran a report on

each of the devices and phone numbers; between May 2005 and 2009, he found

over 1,122 activations on the SIM cards for the company-owned devices issued

to appellant: 564 on the “UMTS Voice” device’s card, 135 on the scanner’s card,

240 on the BlackBerry’s card, 54 on the “Device Testing” unit’s card, and 129 on

the laptop’s card. According to Wallace, “That’s the most activations I’ve ever




      10
        Cangas explained that when you take a SIM card out of one cell phone,
and place it in another, the phone in which the card is placed records the card as
an activation. In other words, placing a SIM card in any phone creates a “trail” in
that particular phone showing that the SIM card was at one time placed there.
The cell phone providers can trace these activations on any of their phones.


                                        15
seen on any one SIM card.” 11 Wallace further found 63 activations on a SIM

card associated with one of appellant’s personal AT&T phone numbers, and 34

activations on the other.       Wallace interviewed appellant about the missing

phones in December 2009.

      Ralph Wilson, appellant’s supervisor at AT&T, testified that several

different company devices were assigned to appellant. Wilson explained that

appellant was part of a special team of employees who tested new AT&T

devices; however, he also said that someone in appellant’s job would have no

need to be switching SIM cards between five and six times a day. Wilson said

that appellant called him before the interview with Wallace in December 2009

and asked for Wilson’s spare computer, but appellant was not able to get it

before Wilson and appellant were called to AT&T headquarters for the interview.

According to Wilson, appellant was quiet during the interview, seemed

“somewhat nervous,” and would not answer all the questions Wallace asked.

Wilson confirmed that appellant asked Wallace during the interview, “If I . . .

submit my resignation, will this end this discussion?” Wallace confirmed that

appellant did resign during the interview after Wallace asked him where he got

two BlackBerrys he had activated and sold that were missing from ATC.

Appellant told Wallace that he believed he had paid about $400 for each from an

unknown seller on Craigslist.

      11
        It is difficult to tell from the questioning whether Wallace was referring to
the 564 activations or the collective total of activations from all of the devices.


                                         16
      Monique Hebert-Lofgren, a loss prevention manager for Radio Shack,

testified that she started an investigation in September 2009 involving

“unauthorized lines being added to people’s accounts.”     Sprint notified Radio

Shack of some suspicious deactivations of accounts; Radio Shack ran the ESNs

for those phones in their system to see when they were added into the register at

the time of sale. She was able to trace the activations and deactivations to two

employees, one of whom was J.A. Radio Shack was able to compile a list of the

phones it believed had been stolen by these employees; that list was admitted at

trial. All of Radio Shack’s phones have unique stickers on them identifying them

as Radio Shack phones.

      K.P., a former worker at New Breed, a Verizon phone refurbisher, testified

about how she stole phones from the facility where she worked. She said she

would meet appellant and his father at an El Chico restaurant and would sell

them the phones she had stolen.       Sometimes she would sell thirty or forty

phones at a time. 12 She thought that the first time she sold about thirty-five

phones to appellant and his father together, and they paid her $1,000. She

typically sold them each phone for “30, 40, or 60,” and they paid her in cash.

After the first meeting, she only met with appellant’s father. They only bought

new phones from her, which she packaged in a shoebox or noodle box. K.P. told

appellant and his father she got the phones from other people.


      12
       The evidence showed that she stole over 700 phones.


                                       17
      K.P.’s daughter, who accompanied her mother to the meetings, testified

that she did not know the phones her mother was selling were stolen. After the

first meeting, though, appellant asked K.P. if she could get more phones “in

bulks.” K.P.’s daughter then became suspicious after her mother started getting

more and more phones in bulk.

      An investigator for the Tarrant County District Attorney’s office’s economic

crimes unit testified about how law enforcement was able to link the email

address appellant used for his eBay and Craigslist advertisements to two

companies, Reemsales and Deal Maker, and to two Wells Fargo accounts

associated with appellant. The investigator also assisted in executing a search

of appellant’s father’s home in December 2009 in connection with the

investigation of appellant. The investigator said that the home’s front office had

boxes full of cell phones and that officers found over 1,000 phones there that

day. The officers also found mail addressed to appellant and six checkbooks for

Deal Maker. Although officers did not find any of the Radio Shack phones at the

house, they did find 117 of the missing ATC phones and about 800 of the

Verizon phones that K.P. had stolen; the Verizon phones had stickers on them

specific to the New Breed facility. Authorities also found $20,251 in cash at the

home with a purple sticker on it that said “Rashad.” Officers further seized a

notebook with handwritten lists of phones along with the phones’ serial numbers.




                                       18
They discovered after analyzing the notebook that the IMEI numbers 13 for 115

ATC phones and 49 New Breed phones were listed in the notebook.

      At appellant’s residence, which officers searched the same day as his

father’s home, officers seized numerous phones throughout the house. They

found more checkbooks and other records for Deal Maker as well as numerous

SIM cards and appellant’s AT&T-issued equipment.           Officers also found a

notebook with phone serial numbers listed in it; the handwriting in the notebook

appears to match that in the notebook found in Arlington. Investigators found

three stolen phones at appellant’s residence: an AT&T phone from the ATC

facility, one Radio Shack phone, and one of the Verizon phones from the New

Breed facility. The State also introduced evidence that the SIM cards for all five

of appellant’s AT&T-issued devices had been placed into each of the phones

they found at his house and that it had to have been done “[q]uite often.”

      Investigators also found flash boxes at appellant’s home. Flash boxes are

used for unlocking phones: “Basically, you use these to unlock phones so they

can be used by other carriers. At that time if you were pretty much locked into

contracts with whatever cell phone company you had, if you had one of these,

you could free up your phone to be used on another network.” When asked if

there was “any legitimate reason to have those if you’re a legitimate reseller of



      13
         An IMEI number is another type of number unique to a particular cell
phone.


                                        19
brand new phones,” a Secret Service agent who participated in the investigation

answered, “No.”

      In reviewing the business records for Deal Maker, investigators found no

receipts for purchases of phones from March 19 when phones were first

discovered missing at ATC through April 23 when one of those phones was sold

on Craigslist. However, they did find receipts for purchases of many accessories

compatible with those types of phones.

      Carl Allen, a former Verizon employee, examined the data from some of

the phones seized pursuant to the warrants. The trial court admitted evidence of

data from some of the phones seized from appellant’s house. One of the text

messages read, “Please sell the bad ESN phones for whatever you can get for

them, and I will take care of you on the rest.” A text exchange between one of

appellant’s numbers and his father’s number reads as follows: “Okay, text me or

the bad ESN -- for the bad ESN numbers. . . . He will take care of it if they are

three only. . . . I need a list of the IMEI numbers for the phones that you need

unlocked. Try to unlock them all first, please, and then if it does not work, just

get me the IMEI numbers.”

      Appellant changed his email address after law enforcement searched his

and his father’s homes and began selling phones under the name Wireless

World Warehouse.     The evidence showed that although the volume of sales

through appellant’s entities decreased in December 2009, he was still making




                                         20
sales until October 2010, when law enforcement searched his home a second

time.

        Appellant admitted that he was the owner of Deal Maker.          However,

appellant also testified that his father was running the cell phone business by

himself by the end of 2008. 14 Although there is evidence that appellant’s father

was involved in many of the actual purchases of the phones from J.A. and K.P.,

there was sufficient evidence linking both appellant and his father to the

businesses through which appellant sold the phones on Craigslist and eBay,

including Deal Maker and Reemsales.

        Appellant disclaimed any knowledge that the phones he had sold were

stolen. He agreed that he had run into a problem with a phone being hot listed

and had therefore developed a procedure for checking whether a phone was on

a hot list before buying it:

        In the cell phone business you got two types of phones. You have
        CDMA, which is covered by Verizon, Sprint, MetroPCS, and then
        you got GSM. That’s covered by AT&T, T-Mobile, any company that
        takes a SIM card.

              ....

              . . . On CDMA phones there is now three things I check before
        I buy them. I call the company. I ask them if the phone has ever
        been reported lost or stolen. I asked the phone, if it’s been

        14
         The State introduced evidence that appellant paid his father a salary and
that his father was listed as a contract worker on appellant’s tax return for 2009.
Appellant testified that his father’s trusting and “hardheaded” nature caused his
father to lose a gas station business, which is why appellant handed over the cell
phone business to him.


                                        21
      blacklisted. And then the new key question that I never asked
      before, if the phone has ever been activated on an account and
      deactivated, which at that time is what those people did.

Appellant also testified that he had trained his father in these procedures

and could not understand why his father would not have followed them

except that he was “hardheaded.”

      According to appellant, J.A. called him first; appellant assumed J.A. got his

number from Craigslist. Appellant said he checked out the phones he bought

from J.A. at a Sprint store before buying them. However, appellant testified that

he met with J.A. only three times and bought only six phones. Appellant testified

that he knew Sprint was running an upgrade special and that he bought phones

from lots of customers who were upgrading their phones so they could sell them.

He admitted he bought phones from K.P.’s daughter but said she told him she

had bought the phones from other sellers. Appellant denied ever meeting K.P.

      Based on the above, we conclude and hold that there is sufficient evidence

other than appellant’s mere possession of stolen property from which the jury

could have reasonably determined that appellant committed theft by receiving

property that (a) was actually stolen and (b) he subjectively knew was stolen.

See, e.g., Chudleigh, 540 S.W.2d at 317; Pollan v. State, 247 S.W.2d 889, 891–

92 (Tex. Crim. App. 1952) (op. on reh’g); Hart v. State, No. 05-08-01225-CR,

2010 WL 851405, at *5 (Tex. App.––Dallas Feb. 26, 2010, pet. ref’d) (not

designated for publication). We overrule appellant’s sixth point. Because his




                                       22
seventh point alleges that the trial court should have granted him a new trial for

the same reason raised in his sixth point, we overrule his seventh point as well.

Whether Charge Error Harmful

      In his third through fifth points, appellant contends that the charge, by

tracking the language of the indictment, improperly instructed the jury, causing

the jury to convict him of behavior that does not constitute an offense. Thus, his

third through fifth points are based on the same arguments he raises in his first,

second, sixth, and seventh points.

      The State conceded in its response to appellant’s motion for new trial that

the use of the word “believing” in the jury charge was error. However, because

appellant failed to object to the wording of the charge at trial, we must review the

entire record to determine whether the error caused appellant egregious harm.

Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012); Almanza v. State,

686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g); see Tex. Code Crim.

Proc. Ann. art. 36.19 (West 2006). Here, the court reporter did not record closing

argument or voir dire; 15 thus, we look to the clerk’s record and the recorded parts

of the trial and any pretrial proceedings.

      Errors that result in egregious harm are those “that affect the very basis of

the case, deprive the defendant of a valuable right, vitally affect the defensive


      15
        It is unclear from the court reporter’s notes whether the parties agreed
not to have these parts of the trial recorded. Nevertheless, appellant has not
raised the lack of their recording as error.


                                         23
theory, or make a case for conviction clearly and significantly more persuasive.”

Taylor v. State, 332 S.W.3d 483, 490 (Tex. Crim. App. 2011). The purpose of

this review is to illuminate the actual, not just theoretical, harm to the accused.

Almanza, 686 S.W.2d at 174.

      Appellant’s main argument is that by using the word believing rather than

knowing, the charge lessened the State’s burden of proof:           “The heart of

Appellant’s defense was [that he was] not guilty of a theft because he did not

know the cell phones were stolen.” We have explained why the evidence shows

that appellant was not convicted on a lesser burden of proof.        Moreover, in

reviewing the entire record for evidence of harm, we note that the clerk’s record

contains numerous Brady notices to appellant’s trial counsel from the State,

many of which relate to evidence suggesting that appellant did not know the

phones he was selling were stolen. Thus, pretrial filings indicate that appellant’s

knowledge or lack thereof would be an issue in the trial. Additionally, the State

attached to its motion for new trial copies of Power Point slides it presented to

the jury during its closing argument, several of which reiterated, “he knew,” with

references to evidence of appellant’s knowledge that the phones were stolen,

such as that he was buying new-in-the-box phones with specific identifying

provider stickers on them for substantially less than what appellant had paid for

new phones from other sellers.

      Our review of the appellate record indicates that appellant was not

deprived of a valuable right or the ability to present a defensive theory by virtue


                                        24
of the error in the charge: appellant’s counsel emphasized during trial the extent

of appellant’s father’s participation in buying the phones, and appellant’s own

testimony was mainly focused on his contention that he did not know the phones

were stolen. Indeed, the State contends in its motion for new trial that appellant’s

counsel knew of the jury charge error, allowed it to stand, and pressured the

State to make a misdemeanor plea offer because of the error while the jury was

deliberating. We conclude and hold that the record does not show egregious

harm because of the inclusion of the word “believing” instead of “knowing” in the

charge. We overrule appellant’s third through fifth points.

Whether Impeachment Evidence Improperly Excluded

      In his eighth point, appellant challenges the trial court’s ruling that he could

not ask J.A. about a past misdemeanor conviction for marijuana possession.

Although appellant acknowledges that rule of evidence 608(b) generally prohibits

use of a misdemeanor conviction to impeach a witness’s credibility, he urges that

the trial court should have nevertheless allowed him to ask the question because

he proved an exception to rule 608(b)’s general prohibition: that J.A. opened the

door to questioning about his conviction by leaving a false impression about the

extent of his prior criminal history. Tex. R. Evid. 608(b); see West v. State, 169

S.W.3d 275, 278 (Tex. App.––Fort Worth 2005, pet. ref’d).

      The following exchange occurred at the beginning of the State’s direct

examination of J.A.:

      Q. [J.A.], will you state your name for the jury.


                                         25
      ....

      Q. [A]re you currently employed?

      A. Not anymore.

      Q. Have you been charged with a crime? Let’s start with that.

      A. Any crime?

      Q. This phone stealing engaging in organized crime case.

      A. No, ma’am.

      Q. In this case you’ve been charged with a crime, right?

      A. Okay, convicted. I’m sorry.

      Q. You’re not convicted. Charged?

      A. Charged, yes. Yes, ma’am. Sorry.

      Q. And is that case still pending?

      A. Yes, ma’am.

      Q. And, in fact, you had court this week, right?

      A. Yes. [Emphasis added.]

      Appellant claims that this exchange opened the door to an examination of

J.A.’s entire past criminal history. Here, however, the context of the exchange is

limited to whether J.A. was facing charges for stealing the Radio Shack phones,

and neither the State’s questions nor J.A.’s testimony that he had not yet been

convicted or charged creates a false impression that he had a past history of law-

abiding behavior. See Hammett v. State, 713 S.W.2d 102, 106–07 (Tex. Crim.

App. 1986) (examining context of questioning and testimony to determine


                                       26
whether false impression of past law-abiding behavior given); James v. State,

102 S.W.3d 162, 181 (Tex. App.––Fort Worth 2003, pet. ref’d) (“[T]he ‘false

impression’ exception is given a narrow construction by the case law. . . . In

order to open the door to use of prior crimes for impeachment, the witness must

do more than simply imply that he abides by the law; he must in some way

convey the impression that he has never committed a crime.” (citation omitted)).

Accordingly, we conclude and hold that the trial court did not abuse its discretion

by prohibiting appellant from inquiring into J.A.’s past misdemeanor conviction.

We overrule appellant’s eighth point.

                                   Conclusion

      Having overruled appellant’s eight points, we affirm the trial court’s

judgments.

                                                   /s/ Terrie Livingston

                                                   TERRIE LIVINGSTON
                                                   CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ.

DAUPHINOT, J., concurs without opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 9, 2015




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