Affirmed and Memorandum Opinion filed December 10, 2015.




                                     In The

                     Fourteenth Court of Appeals

                               NO. 14-14-00778-CR


                   SAMMIE DARRELL DAVIS, Appellant
                                         V.

                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 174th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1357576


                  MEMORANDUM OPINION
      Appellant Sammie Darrell Davis appeals his felony-theft conviction. He
challenges the sufficiency of the evidence and the trial court’s denial of his motion
for new trial, which was based on a juror’s purported experiment during
deliberations. We affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND

      The complainant works as a diamond purchaser. On the day of the offense,
the complainant was carrying diamonds and other valuables in his backpack and
driving a silver automobile.      Houston police officers, who happened to be
conducting surveillance, witnessed the events leading to appellant’s arrest for the
theft of the complainant’s belongings.

      While on surveillance, the police officers noticed a silver van moving
suspiciously through a drugstore parking lot. Officer James Yeoman and a team of
police officers began following the van. The van driver went to several banks,
each time pausing, and then moving on without entering the bank. At one of the
banks, a second van, a green one, pulled up, and appeared to maneuver in the same
way as the silver van. The two vans then pulled into a fast-food restaurant, where
Sergeant Mike Ingels watched as a man, later identified as appellant, got out of the
green van and conversed with the driver of the silver van. The van drivers then
steered their vehicles into another bank parking lot and began following the
complainant’s automobile.

      According to Officer Yeoman, the vans followed the complainant’s
automobile for eight or ten miles until all of the vehicles stopped in a shopping
center. The complainant went into a fast-food restaurant, leaving his automobile
unattended. Officer Yeoman saw the driver of the silver van peer through the
window of the complainant’s automobile and then get back into the silver van.
The van drivers appeared to be watching the complainant’s automobile from
another parking lot for a while before driving up and parking directly beside it.
The driver of the silver van got out of the van, and Officer Yeoman watched as the
driver knelt down next to the complainant’s automobile, but the officer could not
tell what the driver was doing.

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         After the complainant got back inside his automobile, the rear right tire
began to deflate. The complainant then pulled into a parking lot and began fixing
the tire there. The two vans pulled into a parking lot at an apartment complex
across the street. Both van drivers got into the green van. According to the officer,
the green van pulled in five or six spaces away from the complainant’s automobile.
The passenger in the green van got out, walked between the two vehicles, and
approached the passenger side of the complainant’s automobile, opened the
passenger door, grabbed a black backpack, and ran back to the green van.

         An officer approached the complainant’s automobile and the complainant
confirmed his backpack containing cash, his laptop computer, diamonds, fake
diamonds, and gemology tools had just been stolen.

         Meanwhile, other police officers surveilling the area unsuccessfully
attempted to stop the green van. Officer Yeoman then began watching the silver
van that its driver had abandoned across the street. Within the next two hours,
Officer Yeoman saw a red car with two males enter the parking lot. One of the
men got into the silver van and took off. Police followed. The driver of the silver
van caused the vehicle to jump the curb, and he was able to evade police. But,
police successfully stopped the red car and arrested appellant, who had been
driving it.    A search of the red car yielded a backpack containing a laptop
computer, a small case with what appeared to be diamonds, and some gemology
tools.

         Appellant was charged by indictment with third-degree felony theft of
property valued at $20,000 or more but less than $100,000. Appellant’s indictment
contained a habitual-offender enhancement paragraph. Following a trial, the jury
found appellant guilty as charged. The trial court assessed punishment at forty
years’ confinement.

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                         SUFFICIENCY OF THE EVIDENCE

      In his first issue, appellant asserts there is no evidence that he took anything
from the complainant without the complainant’s consent. Appellant argues that (1)
the evidence is insufficient to show he appropriated the diamonds from the owner
because the State alleged the complainant was the owner of the property, but the
evidence showed the complainant’s company — not the complainant — owned the
property, and (2) the evidence is insufficient to show appellant took the property
without the complainant’s consent.

      In evaluating a challenge to the sufficiency of the evidence supporting a
criminal conviction, we view the evidence in the light most favorable to the
verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The
issue on appeal is not whether we, as a court, believe the State’s evidence or
believe that appellant’s evidence outweighs the State’s evidence. Wicker v. State,
667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned
unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson
v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The trier of fact “is the
sole judge of the credibility of the witnesses and of the strength of the evidence.”
Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The trier of fact
may choose to believe or disbelieve any portion of the witnesses’ testimony.
Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with
conflicting evidence, we presume the trier of fact resolved conflicts in favor of the
prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).
Therefore, if any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt, we must affirm.          McDuff v. State, 939
S.W.2d 607, 614 (Tex. Crim. App. 1997).

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       Texas Penal Code Section 31.03, entitled, “Theft,” provides:

    (a) A person commits an offense if he unlawfully appropriates property with
        intent to deprive the owner of property.
    (b) Appropriation is unlawful if:
       (1) it is without the owner’s effective consent;
       (2) the property is stolen and the actor appropriates the property knowing it
          was stolen by another; or
       (3) 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.
Tex. Penal Code Ann. § 31.03 (West, Westlaw through 2015 R.S.). Under the law
applicable to the charged offense, theft is a felony in the third degree if the value of
the property stolen is $20,000 or more but less than $100,000.1                        See id. §
31.03(e)(5) (West 2011). The trial court instructed the jury on law of the parties
under Penal Code section 7.02(a)(2). See Tex. Penal Code Ann. § 7.02 (West
2014).      A person is criminally responsible for an offense committed by the
conduct of another if, acting with intent to promote or assist the commission of the
offense, the person solicits, encourages, directs, aids, or attempts to aid the other
person to commit the offense. See id.; Owolabi v. State, 448 S.W.3d 148, 151
(Tex. App.—Houston [14th Dist.] 2014, no pet.).

                                Ownership of the Property

       Texas courts must apply the legal-sufficiency standard of review to the
hypothetically correct jury charge. Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim.
App. 2011). A hypothetically correct jury charge accurately sets out the law, is

1
  For offenses committed on or after September 1, 2015, theft is a felony in the third degree if the
value of the property stolen is $30,000 or more but less than $150,000. See Tex. Penal Code
Ann. § 31.03(e)(5) (West, Westlaw through 2015 R.S.). Theft also may be a third-degree felony
under certain circumstances involving the theft of animals, but appellant was not changed under
this part of the statute. See id. § 31.03(e)(5) (West 2011).
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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.
      The name of the owner of the appropriated property is not a substantive
element of the theft offense. Id. at 251. But, the Code of Criminal Procedure
requires the State to allege the name of the owner of property in its charging
instrument. Id. Under Texas pleading rules, ownership may be alleged in either
the actual owner or a special owner. Id. at 251–52. A special owner is a person
who has actual custody or control of property that belongs to another person. Id.
The term “owner” as used in section 31.03 includes any person who has title to the
property, possession of the property, or a greater right to possession of the property
than the defendant. Tex. Penal Code Ann. § 1.07(a)(35) (West 2011); Garza v.
State, 344 S.W.3d 409, 413 (Tex. Crim. App. 2011).
      The record reveals that the complainant was an employee of a corporation
that owned the stolen diamonds, cash, and gemology tools.                 Though the
complainant’s employer was the legal owner of the property, the complainant had
possession of the property and was entrusted with that property on behalf of the
owner. The evidence showed the complainant had physical possession of the items
when appellant’s accomplice took them from the complainant’s vehicle.             The
evidence is legally sufficient to support a finding that the complainant was the
owner of the property that was unlawfully appropriated.      See Garza, 344 S.W.3d
at 414; Martin v. State, 704 S.W.2d 892, 894 (Tex. App.—Houston [14th Dist.]
1986, no pet.). The complainant testified the diamonds, cash, and gemology tools
were in his vehicle when appellant’s accomplice took them.

                Appropriation of Property without Consent

      Appellant’s second argument is that the evidence is insufficient to show the

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complainant did not effectively consent to the appropriation of the property. The
record reveals the complainant works as a diamond purchaser for his parents’
corporation in Israel. On the day in question, the complainant was planning to ship
diamonds from Houston to Israel. He had to complete one more deal before
shipping the diamonds when he noticed his right rear tire had gone flat. The
complainant testified he was carrying more than $20,000 in cash to complete the
final deal when he left his backpack containing the diamonds, cash, and gemology
tools in the front seat of his vehicle. While the complainant was changing the tire
on his automobile, appellant drove another man over to the complainant’s car, and
the man took the complainant’s backpack from the front seat.

      The complainant testified he had been worried about having his diamonds
stolen and had taken preventative measures, such as including fake diamonds in his
backpack along with the real diamonds. According to the complainant, he did not
communicate with the individuals who took his property because he did not realize
they had stolen his backpack until they had fled the premises. The complainant
testified that after realizing the property had been taken, he felt “terrible” as if he
had made a big mistake or let someone down because he was responsible for
keeping the diamonds safe.

      The record reveals the diamonds were in the complainant’s possession when
they were taken. The complainant testified he intended to ship the diamonds to
Israel, not give them to appellant or to the man who took the complainant’s
backpack from the front seat. Moreover, the complainant did not communicate
with appellant or appellant’s accomplices. We conclude the evidence is legally
sufficient to support a finding that the appropriation of the property from the
complainant’s vehicle was without the complainant’s effective consent.             See
Harrell v. State, 834 S.W.2d 540, 543 (Tex. App.—Houston [14th Dist.] 1992, pet.

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ref’d).    Likewise, we conclude the evidence is legally sufficient to support a
finding that a passenger in the green van driven by appellant unlawfully
appropriated the property in question with intent to deprive the complainant of
property and to support a finding that appellant, acting with intent to promote or
assist the commission of this offense, solicited, encouraged, directed, aided, or
attempted to aid that passenger to commit the offense. See id.; Jones v. State, 845
S.W.2d 419, 423–24 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d).                           We
overrule appellant’s first issue.

                            JUROR-EXPERIMENTATION CLAIM

          In his second issue, appellant asserts the trial court erred in denying his
motion for new trial, in which he asserted that his constitutional right to due
process and a fair and impartial trial were violated by jury misconduct. Appellant
alleged that the misconduct occurred when, during a break in jury deliberations in
the guilt/innocence phase, one juror conducted her own experiment regarding the
identification of a person in a car with tinted windows and then disclosed the
results of this experiment to the entire jury before the jury reached its verdict.
Appellant argued in the trial court that this alleged misconduct violated his
constitutional rights under the Sixth Amendment to the Constitution of the United
States and under article I, section 10 of the Texas Constitution.2 See U.S. CONST.
amend. VI; TEX. CONST. art. I, § 10. In his motion, appellant cited the Court of
Criminal Appeals’s opinion in McQuarrie v. State. See 380 S.W.3d 145, 153–55
(Tex. Crim. App. 2012). The only evidence appellant submitted in support of his
motion for new trial was a two-page affidavit from his trial counsel in which

2
  The State argues on appeal that appellant failed to preserve error on the second issue because
appellant failed to request a hearing on his motion for new trial or to secure a timely hearing date
on the motion. We presume for the sake of argument that appellant preserved error on his
second issue.

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counsel testifies regarding statements made by one juror after the trial was over.3

          The trial court imposed sentence in open court on September 22, 2014.
Appellant timely filed his motion for new trial within thirty days of this date. See
Tex. R. App. P. 21.4(a). Appellant’s motion for new trial was “deemed denied”
seventy-five days after the trial court imposed sentence in open court because the
trial court did not rule on this motion by written order within seventy-five days
after imposing sentence in open court.4 See Tex. R. App. P. 21.8; Morrison v.
State, 132 S.W.3d 37, 48 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d). On
December 18, 2014, the trial court held a hearing on appellant’s motion for new
trial and purported to deny the motion in open court. Because the motion for new
trial was deemed denied before December 18, 2014, the hearing conducted on that
date was not authorized and will not be considered on appeal. See Tex. R. App. P.
21.8; Morrison, 132 S.W.3d at 48. Therefore, in evaluating appellant’s second
issue, we do not consider the hearing conducted on December 18, 2014, nor do we
consider the evidence offered by the State at that hearing.5 See Morrison, 132
S.W.3d at 48.

          The trial court was the sole judge of witness credibility in considering the
evidence in support of appellant’s motion for new trial. See Colyer v. State, 428
S.W.3d 117, 126 & n. 52 (Tex. Crim. App. 2014). The trial court was entitled to
discredit the testimony of appellant’s trial counsel, which was the only evidence
appellant offered in support of his motion for new trial. See Colyer, 428 S.W.3d at
126. The trial court could have discredited this testimony and denied appellant’s

3
    The record does not reflect that the State objected to this affidavit.
4
  The trial court did not rule on appellant’s motion by written order or otherwise within seventy-
five days after imposing sentence in open court.
5
 At this hearing the trial court admitted into evidence an affidavit tendered by the State.
Appellant did not offer any evidence at the hearing.

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motion for new trial on that ground alone. See id. Thus, the trial court did not
abuse its discretion by denying appellant’s motion for new trial.             See id.
Accordingly, we overrule appellant’s second issue.

                                   CONCLUSION

      The evidence is legally sufficient to support appellant’s conviction for third-
degree felony theft.    The trial court did not abuse its discretion in denying
appellant’s motion for new trial. Having overruled appellant’s issues, we affirm
the trial court’s judgment.




                                      /s/     Kem Thompson Frost
                                              Chief Justice



Panel consists of Chief Justice Frost and Justices Christopher and Donovan.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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