Opinion issued November 17, 2016




                                   In The

                            Court of Appeals
                                   For The

                        First District of Texas
                           ————————————
                            NO. 01-16-00069-CR
                          ———————————
                MARCO ANTONIO MARTINEZ, Appellant
                                     V.
                     THE STATE OF TEXAS, Appellee


         On Appeal from the County Criminal Court at Law No. 15
                          Harris County, Texas
                      Trial Court Case No. 2032201


                        MEMORANDUM OPINION

      A jury convicted appellant, Marco Antonio Martinez, of theft of property

valued between $500 and $1500. The trial court assessed punishment at one year

confinement, which it suspended, placing appellant under community supervision
for one year. In two related points of error, appellant contends the evidence is

legally insufficient to support the conviction. We affirm.

                                 BACKGROUND

      Appellant is in the newspaper business and runs LaNeta Newspaper in

Houston, Texas. The complainant, Luis Fernando Castro, is the supervisor of a

newspaper distribution company. On June 5, 2015, appellant and Castro got into

an argument at a Super K convenience store over whose newspapers would be

displayed in the rack. Appellant hit Castro in the face with a newspaper. Castro

retaliated by punching appellant. At some point in the altercation, Castro dropped

the cell phone he was holding. Castro testified that appellant picked up Castro’s

cell phone, showed it to him, and then walked out of the store and smashed the cell

phone. Castro testified that he never got his cell phone back. In contrast, appellant,

testifying in his own behalf, claimed that the cell phone he picked up off the floor

was his own, which he had dropped, along with his sunglasses, during the fight.

      Officer V. Vo of the Houston Police Department testified that he and his

partner were dispatched to the disturbance at the Super K convenience store.

Officer Vo testified about the missing cell phone as follows:

      And it was confusing for us at first to determine whose phone that he
      had actually grabbed, because they both have—apparently, they both
      have the same kind of phone, it was an iPhone 6 Plus, and they were
      similar in color. The complainant’s phone was gold in color.
      [Appellant’s] phone, I believe it was light or gold in color as well.


                                          2
Officer Vo further testified that, after reviewing video footage of the altercation, he

was convinced that the cell phone that appellant picked up off the floor belonged to

Castro, not appellant, because the video clearly showed appellant slamming the

cell phone against a concrete pillar, which would have caused some damage to the

cell phone. Moreover, Vo had seen appellant’s cell phone when he allowed

appellant to call his wife from the store, and it was not damaged in any way. Thus,

Vo concluded that the cell phone that appellant picked up off the floor and

slammed into the pillar belonged to Castro, not appellant. Accordingly, appellant

was arrested and charged with theft.

                      SUFFICIENCY OF THE EVIDENCE

      In two related points of error, appellant contends the evidence is legally

insufficient to support his conviction. Specifically, appellant argues that he had no

intent to deprive Castro of his cell phone because it belonged to him, not Castro.

Standard of Review and Applicable Law

      We apply the legal standard for sufficiency of the evidence articulated in

Jackson v. Virginia, 443 U.S. 307 (1979). Gear v. State, 340 S.W.3d 743, 746

(Tex. Crim. App. 2011); Pena v. State, 441 S.W.3d 635, 640 (Tex. App.—Houston

[1st Dist.] 2014, pet. ref’d). Under this standard, we “must consider all of the

evidence in the light most favorable to the verdict and determine whether, based on

that evidence and any reasonable inferences therefrom, a rational fact finder could


                                          3
have found the essential elements of the crime beyond a reasonable doubt.” Gear,

340 S.W.3d at 746. We cannot substitute our judgment for that of the jury by

reevaluating the weight or credibility of the evidence; instead, we defer to the

jury’s resolution of conflicts in the evidence. Isassi v. State, 330 S.W.3d 633, 638

(Tex. Crim. App. 2010).

      A person commits theft “if he unlawfully appropriates property with intent

to deprive the owner of property.” TEX. PENAL CODE ANN. § 31.03(a) (West Supp.

2016). Given that “intent to deprive the owner of property” is an element of theft,

see Griffin v. State, 614 S.W.2d 155, 158 (Tex. Crim. App. 1981), we must

determine whether any rational trier of fact could have found this element beyond a

reasonable doubt upon the evidence presented at trial. See Jackson, 443 U.S. at

319, 99 S. Ct. at 2789.

Analysis

      Appellant argues that there was no evidence of intent to commit theft

because “[a]ppellant went back to pick up his [own] sunglasses and cell phone and

not with the intent to commit theft.” This is based on appellant’s testimony that he

picked up his own cell phone, and not Castro’s. However, Castro testified that the

cell phone that appellant picked up off the floor, and subsequently smashed on a

concrete pillar outside the store, belonged to Castro, not appellant. Appellant also

contends that there were discrepancies in the State’s evidence. Specifically, he


                                         4
points out that Castro testified that appellant left after smashing the cell phone,

while Officer Vo testified that appellant was still at the scene when he arrived.

These apparent discrepancies in the testimony are within the jury’s province to

resolve, and we may not re-evaluate the weight and credibility of the record

evidence and substitute our judgment for that of the factfinder. See Isassi, 330

S.W.3d at 638.

      Viewing the evidence in the light most favorable to the verdict, as we must,

we conclude that a rational jury could have convicted appellant of theft. Castro

testified that appellant picked up Castro’s cell phone, showed it to Castro, and then

smashed it outside the store. The jury, in fact, had surveillance video from the

convenience store, as well as still photographs, to support Castro’s testimony. The

jury could have disbelieved appellant’s testimony that the cell phone he picked up

was his own, especially because it is unlikely that appellant would smash his own

cell phone, and Officer Vo saw appellant using his own undamaged cell phone

after the altercation. We therefore hold that the evidence is sufficient to support

appellant’s conviction for theft. See Gear, 340 S.W.3d at 746.

      We overrule appellant’s two related points of error.




                                          5
                                 CONCLUSION

      We affirm the trial court’s judgment.




                                               Sherry Radack
                                               Chief Justice

Panel consists of Chief Justice Radack and Justices Jennings and Bland.

Do not publish. TEX. R. APP. P. 47.2(b).




                                           6
