Opinion filed August 28, 2009




                                              In The


   Eleventh Court of Appeals
                                            __________

                                     No. 11-08-00109-CR
                                         __________

                                MELVIN TILLEY, Appellant

                                                 V.

                                STATE OF TEXAS, Appellee



                           On Appeal from the 104th District Court
                                   Taylor County, Texas
                               Trial Court Cause No. 16669B


                            MEMORANDUM OPINION

       The trial court convicted appellant, Melvin Tilley, of robbery. The trial court found two prior
felonies alleged for enhancement purposes to be “true” and sentenced appellant to confinement in
the Institutional Division of the Texas Department of Criminal Justice for a term of twenty-five
years. Appellant challenges his conviction in seven issues. We affirm.
                                         Background Facts
       The indictment charged appellant with the following conduct:
       MELVIN TILLEY while in the course of committing theft of property and with the
       intent to obtain and maintain control of said property, did then and there intentionally
       and knowingly cause bodily injury to JAMES DANE striking him on and about the
       head with his fist.

James Dane owned a bicycle. On May 19, 2007, Dane’s acquaintance, “Mike,” asked to borrow the
bicycle to go to the store to get some beer. Dane permitted Mike to take the bicycle. However, Mike
never returned the bicycle to Dane. Dane reported Mike’s theft of the bike to the police on the
following day.
       The next day, Dane asked a man to alert him if the man saw anyone riding his bicycle. The
man later told Dane that he thought he had found Dane’s bicycle. Dane returned with the man to
confirm that it was his bicycle. Dane subsequently agreed to give the man twenty-five dollars for
the bicycle. Dane testified that, after he got on the bicycle to pedal away, appellant arrived at the
scene in a pickup with three other men. Dane stated that appellant jumped out of the pickup and
refused to let him have the bicycle. Appellant then placed some leather gloves on his hands and
started hitting Dane in the face with his fists. After knocking appellant off the bicycle, appellant
placed the bicycle in the pickup whereupon he told the driver “[l]et’s go.” Dane testified that he
knew appellant and that appellant had previously offered to purchase the bicycle from him on several
occasions.
       Appellant offered a different version of the events. He testified that Fabian Brown came
inside the house where appellant was staying and said that Dane was willing to pay $25 for the
bicycle. Appellant testified that, a few minutes later, he observed Dane removing the bike from the
inside of the house. Appellant told Dane that he had purchased the bicycle from Mike for ten dollars
and that Dane could have the bicycle if he paid appellant ten dollars. Appellant testified that he held
the bicycle by the seat while Dane held it by the handlebars as they tussled over the bicycle.
Appellant subsequently punched Dane causing Dane to let go of the bicycle. Appellant denied
arriving at the scene in a pickup. He also denied ever attempting to purchase the bicycle from Dane
on previous occasions.
                                               Analysis
       Appellant challenges the legal and factual sufficiency of the evidence in his first five issues.
To determine if the evidence is legally sufficient, we must review all of the evidence in the light
most favorable to the verdict and determine whether any rational trier of fact could have found the


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essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319
(1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); Jackson v. State, 17 S.W.3d 664,
667 (Tex. Crim. App. 2000). To determine if the evidence is factually sufficient, the appellate court
reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App.
2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v.
State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex.
Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the
reviewing court determines whether the evidence supporting the verdict is so weak that the verdict
is clearly wrong and manifestly unjust or whether the verdict is against the great weight and
preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at
10-11. The jury, as the finder of fact, is the sole judge of the weight and credibility of the witnesses’
testimony. TEX . CODE CRIM . PROC. ANN . art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979).
        A person commits robbery if he intentionally, knowingly, or recklessly causes bodily injury
to another while committing theft with the intent to obtain or maintain control of the property. TEX .
PENAL CODE ANN . § 29.02(a)(1) (Vernon 2003). A person commits theft if he unlawfully
appropriates property with the intent to deprive the owner of that property. TEX . PENAL CODE ANN .
§ 31.03(a) (Vernon Supp. 2008).
        Appellant asserts in Issue No. 1 that the evidence establishes that he was the owner of the
bicycle rather than Dane. “Owner” includes a person who has (I) title to the property, (ii) possession
of the property, whether lawful or not, or (iii) a greater right to possession of the property than the
actor. TEX . PENAL CODE ANN . § 1.07(35)(A) (Vernon Supp. 2008). “Possession” is defined as
“actual care, custody, control, or management.” TEX . PENAL CODE ANN . § 1.07(39) (Vernon Supp.
2008). Any person who has a greater right to the actual care, custody, control, or management of the
property than the defendant can be alleged as the “owner.” Alexander v. State, 753 S.W.2d 390, 392
(Tex. Crim. App. 1988).
        Appellant contends that Dane did not have a greater right to possession of the bicycle at the
time of the assault based upon his alleged purchase of the bicycle from Mike, the presence of the
bicycle at the house where he was staying, and the fact that both he and Dane had possession of the
bicycle at the time of the assault. We disagree. One who purchases stolen property from a thief, no


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matter how innocently, acquires no title in the property; title remains in the owner. Olin Corp. v.
Cargo Carriers, Inc., 673 S.W.2d 211, 216 (Tex. App.—Houston [14th Dist.] 1984, no writ).
Accordingly, a property owner’s rights are superior to any rights of a subsequent possessor who has
purchased stolen property. Sharpe v. Turley, 191 S.W.3d 362, 366 (Tex. App.—Dallas 2006, pet.
denied). Furthermore, based upon Dane’s version of the events, he had actual possession of the
bicycle as he was attempting to pedal away when appellant struck him. Appellant’s Issue No. 1 is
overruled.
       Appellant asserts in Issue No. 3 that the evidence is legally insufficient if a bona fide dispute
exists as to the ownership of the property. This is a correct statement of the law. See Hann v. State,
771 S.W.2d 731, 733 (Tex. App.—Fort Worth 1989, no pet.) (In a theft case of personalty, a
conviction cannot be upheld if ownership of the property is disputed between the complaining
witness and the defendant.). However, it is not applicable to the facts in this case. There is not a
bona fide dispute over the ownership of the bicycle between Dane and appellant because appellant
did not acquire ownership of the bicycle by allegedly purchasing it from the person that stole it from
Dane. Appellant’s Issue No. 3 is overruled.
       In Issues Nos. 2a and 2b, appellant contends that the evidence is legally and factually
insufficient to establish that a theft occurred. As noted previously, a person commits theft if he
unlawfully appropriates property with the intent to deprive the owner of that property.
Section 31.03(a). In the context of this appeal, “appropriate” means to acquire or otherwise exercise
control over property other than real property. TEX . PENAL CODE ANN . § 31.01(4)(B) (Vernon Supp.
2008). Citing TEX . PENAL CODE ANN . § 31.03(b)(2) (Vernon Supp. 2008), appellant contends that
he could not have unlawfully appropriated the bicycle because there is no evidence that he knew it
was stolen at the time that he acquired it from Mike. We disagree. Section 31.03(b)(2) is not the
exclusive means by which an appropriation of property becomes unlawful. TEX . PENAL CODE ANN .
§ 31.03(b)(1) (Vernon Supp. 2008) provides that an appropriation of property is unlawful if it is
without the owner’s effective consent. There is ample evidence in this case that appellant seized the
bicycle from Dane’s actual possession without Dane’s effective consent. The fact that appellant
struck Dane in the face with his fists in order to obtain the bicycle is evidence that appellant
appropriated the bicycle without Dane’s consent. Moreover, appellant’s testimony that he purchased


                                                  4
the bicycle from Mike without any knowledge that Mike stole it from Dane is wholly dependent
upon appellant’s credibility. As the factfinder, the trial court was free to reject appellant’s testimony
in this regard. Appellant’s Issues Nos. 2a and 2b are overruled.
        Appellant asserts in Issue No. 4 that he was justified in using force to prevent Dane from
taking the bicycle. TEX . PENAL CODE ANN . § 9.41(b) (Vernon 2003) provides:
                (b) A person unlawfully dispossessed of land or tangible, movable property
        by another is justified in using force against the other when and to the degree the
        actor reasonably believes the force is immediately necessary to reenter the land or
        recover the property if the actor uses the force immediately or in fresh pursuit after
        the dispossession and:

                       (1) the actor reasonably believes the other had no claim of
                right when he dispossessed the actor; or

                        (2) the other accomplished the dispossession by using force,
                threat, or fraud against the actor.

A defendant has the burden of producing some evidence to support a claimed defense. Zuliani v.
State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). If the defendant produces that evidence, the
State bears the burden of persuasion to disprove the raised defense. Id. The burden of persuasion
does not require that the State produce evidence; it requires only that the State prove its case beyond
a reasonable doubt. Id. A defense is a fact issue to be determined by the factfinder who is free to
accept or reject the defensive issue. See Saxton v. State, 804 S.W.2d 910, 913-14 (Tex. Crim. App.
1991). A guilty verdict is an implicit finding rejecting a defendant’s defensive theory. Id. In
reviewing a challenge to the legal and factual sufficiency of the evidence to support the factfinder’s
rejection of a defense to prosecution, we use the same standards used in reviewing the sufficiency
of the evidence to support a verdict of guilt, looking at the sufficiency of the evidence to support
both the verdict as well as the rejection of the defense. Zuliani, 97 S.W.3d at 595 (factual sufficiency
standard); Saxton, 804 S.W.2d at 914 (legal sufficiency standard).
        In order to prevail on his defense of property theory, appellant would have had to establish
that he was unlawfully dispossessed of the bicycle when Dane attempted to pedal away on it. Under
appellant’s version of the events, he was a purchaser of stolen property. The reacquisition of the
property by the owner in this instance from the purchaser of stolen property is not unlawful.


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Furthermore, appellant would also have had to establish either that he reasonably believed that Dane
had no claim of right to the bicycle when he attempted to reacquire it or that Dane used force, threat,
or fraud ro reacquire the bicycle. As noted previously, appellant’s beliefs regarding Dane’s
continued interests in the bicycle were credibility issues for the factfinder to resolve. Lastly, there
is no evidence that Dane used force, threat, or fraud against appellant in his attempt to reacquire the
bicycle. Accordingly, appellant’s Issue No. 4 is overruled.
         Appellant asserts in Issue No. 5 that the trial court erred in admitting Dane’s written
statement into evidence. The State offered the written statement that Dane gave to the police as
rebuttal evidence.1 Appellant lodged a hearsay objection to the statement. The State responded to
the objection by asserting that the statement was admissible as a prior consistent statement under
TEX . R. EVID . 801(e)(1)(B).
         The trial court’s decision to admit or exclude evidence is reviewed on appeal for an abuse
of discretion. Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008). Rule 801(e)(1)(B)
gives substantive, non-hearsay status to prior consistent statements of a witness offered to rebut an
express or implied charge against the declarant of recent fabrication. Hammons v. State, 239 S.W.3d
798, 804 (Tex. Crim. App. 2007). There need only be a suggestion that the witness consciously
altered his testimony in order to permit the use of the earlier consistent statements. Id. “There is no
bright line between a general challenge to memory or credibility and a suggestion of conscious
fabrication, but the trial court should determine whether the cross-examiner’s questions or the tenor
of that questioning would reasonably imply an intent by the witness to fabricate.” Id. at 805. The
trial court must consider the totality of the cross-examination, not isolated portions or selected
questions and answers. Id. at 807.
         Even if the trial court erred in admitting the written statement into evidence, appellant would
not be entitled to a reversal of his conviction unless the error constituted reversible error under
TEX . R. APP . P. 44.2. A violation of the evidentiary rules resulting in the erroneous admission of
evidence is nonconstitutional error. See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.


         1
          Appellant’s trial counsel began his cross-examination of Dane by questioning him extensively about his consumption of
alcohol and its effect on his recollection of the events.



                                                              6
1998) (applying Rule 44.2(b) harm analysis to the erroneous admission of hearsay evidence). Under
Rule 44.2(b), we are to disregard the error unless it affected appellant’s substantial rights. A
substantial right is affected when the error had a substantial and injurious effect or influence on the
factfinder’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).
          Dane’s written statement was consistent with his trial testimony. The admission of his
written statement was harmless because it was cumulative of his trial testimony. Couchman v. State,
3 S.W.3d 155, 160 (Tex. App.—Fort Worth 1999, pet. ref’d); see Anderson v. State, 717 S.W.2d
622, 628 (Tex. Crim. App. 1986). Under these circumstances, the error, if any, in admitting Dane’s
written statement was harmless. Appellant’s Issue No. 5 is overruled.
          In Issue No. 6, appellant contends that the trial court erred in admitting evidence during the
guilt/innocence phase of some of appellant’s prior convictions.                              On cross-examination, the
prosecutor questioned appellant about his extensive criminal record. Appellant admitted to going
to prison in 1980 for burglary of a vehicle, going to prison in 1983 for burglary of a building, and
going to prison in 1985 for burglary of a habitation. Appellant additionally admitted to going to
prison in 1987 for aggravated assault with a deadly weapon, going to prison in 1990 for burglary of
a building, being incarcerated in 2004 for assault of a family member, and being incarcerated in 2006
for violation of a protective order. Appellant’s trial counsel made the following objection: “At this
point, I object to the relevance of these questions.” After the trial court overruled this objection,
appellant admitted to being incarcerated on two additional occasions in 2004 for theft and assault
of a family member.
          Appellant argues on appeal that the trial court erred in admitting evidence of some of his
prior convictions because they were not relevant or offered for impeachment.2 We disagree. TEX . R.
EVID . 609 provides that evidence of a witness’s prior convictions is admissible for purposes of
impeaching his credibility if the crime was a felony or a crime of moral turpitude. We review the
trial court’s ruling on the admission of evidence of previous convictions for an abuse of discretion.
Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992). The trial court abuses its discretion
if its decision to admit a prior conviction lies outside the zone of reasonable disagreement. Id.


         2
           Appellant’s brief is not clear regarding the specific prior convictions that he is challenging on appeal. Additionally,
appellant does not cite any authority in support of this issue.

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       The record does not demonstrate that the trial court abused its discretion in overruling
appellant’s objection to evidence of his prior convictions. Rule 609 permits a witness’s credibility
to be impeached with prior convictions. Appellant’s credibility was clearly a relevant issue at trial.
Appellant’s Issue No. 6 is overruled.
                                        This Court’s Ruling
       The judgment of the trial court is affirmed.




                                                              TERRY McCALL
                                                              JUSTICE


August 28, 2009
Do not publish. See TEX . R. APP . P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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