Affirmed and Opinion Filed December 1, 2016




                                        S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-15-00858-CR

                           JASON DANIEL CROUCH, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                      On Appeal from the 291st Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F-1476147-U

                            MEMORANDUM OPINION
                      Before Justices Bridges, Lang-Miers, and Whitehill
                                 Opinion by Justice Whitehill
       A jury convicted appellant of property theft greater than $20,000 but less than $100,000.

After appellant pled true to an enhancement paragraph, the trial court sentenced him to eight

years imprisonment.

       In two issues, appellant argues that (1) the evidence is insufficient to support his

conviction because the State failed to prove that (a) he stole the vehicle or knew that it was

stolen, and (b) the vehicle’s value was within the $20,000-$100,000 range and (2) the court erred

by submitting a jury charge with an application paragraph allowing for a non-unanimous verdict.

       As discussed below, we affirm the trial court’s judgment.

                                       I.   Background

       Blake Parsons was employed as a truck driver for Silverado Reconditioning Services, Inc.

(Silverado). On 27 July 2014, he picked up a car-hauler with nine cars on it. He planned to
drive the hauler to Austin, Texas the next day, so he locked it and parked it in a gated

commercial lot for the night. When he returned the next morning, the car hauler was missing.

The hauler was found a short time later, and four of the nine cars were missing, including a 2011

BMW.

        Three days later, Officer James Songer stopped at a convenience store and parked next to

a “brownish . . . weird bright color” BMW SUV that had an improperly located paper tag that

appeared to be fake. Specifically, the tag looked like it had been colored in with a marker, and

the numbers were not generated from a computer. Songer explained that, “they don’t give out

written paper tags anymore, it’s all computer generated.” Although the BMW’s driver was

acting nervous and suspicious, Songer was on his way to another call and did not investigate this

situation further at that time.

        The convenience store was about 4.4 miles from where the hauler was stolen.

        The next day, Songer was on patrol when the BMW he saw in the parking lot the day

before passed him. Songer began to follow the BMW, and it “took off,” “turned real sharp” and

parked in a driveway in front of a closed gate. The driver fled on foot, leaving the driver’s door

open.

        A female passenger, Heather Smith, was in the passenger seat. A teenage boy was in the

back. Initially, Smith was not very cooperative. She told Songer that they had seen appellant in

the trailer park and he had agreed to take them, in exchange for gas money, to sell some scrap

metal. Smith became more cooperative later, and identified appellant by name.

        Songer thought the vehicle was stolen, so after Smith identified appellant, he “looked him

up.” When he saw appellant’s picture, he confirmed that appellant was the BMW’s driver he

saw in the parking lot. When Songer opened the BMW’s trunk, he saw scrap metal, batteries,




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and other items, which, based on his training and experience, was unusual for such a high-priced

vehicle. A pair of gloves was found in the driver’s door pocket.

        At trial, Smith testified that appellant had offered her and her sixteen year old brother a

ride from the trailer park to the scrap yard. Appellant drove the BMW, and Smith said she had

seen him driving it for a couple of days.

        Smith further said that she was sitting in the BMW’s front seat and her brother was in the

back. As appellant exited the trailer park, a police officer drove past them and turned around.

Appellant pulled into a driveway and jumped out. Appellant had told Smith that he knew the car

was stolen, and appellant’s fast exit confirmed that fact for her. Smith identified a picture of the

BMW that was admitted into evidence.

        Jim Stratton, Silverado’s owner, testified that the BMW had a blue book value of

$24,500, which was the value he reported to the police. The car belonged to CarMax, but was in

his care, custody, and control until he delivered it to its destination. Stratton said that CarMax

had probably paid $22,000-$24,000 for the vehicle at auction, and similar cars on the market in

similar condition would be priced “within just a few hundred dollars of each other.”

        When asked if the car’s value could have been less than $20,000, Stratton replied, “Could

have been zero I guess but I doubt it.” When counsel continued to press him about whether the

car’s value was over or under $20,000, Stratton said, “I can’t say how it can be under $20,000 for

that type of car to tell you the truth.”

        Detective Greg Frageu, the case’s lead investigator, testified that they did not retrieve any

fingerprints “of value” or DNA from the BMW. But he explained that car thieves sometimes

wear gloves, which makes obtaining fingerprints “almost impossible.”

        Appellant’s sister, April Crouch, testified that she had never seen appellant driving a

bronze BMW, but she did see Smith driving it “sometime.” She admitted, however, that in the

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ten months before trial, she never told the police that she had seen Smith driving the BMW. She

also admitted that she had a telephone conversation with appellant while he was in jail, during

which he told her to have his daughter testify that he was at his apartment with her when the

offense was committed.

       Both of appellant’s daughters testified that they never saw appellant driving a BMW, but

neither one knew where he was on July 31st (the day he left the BMW and ran from Songer).

       Both Parsons and Stratton testified that they were the only people with permission to take

or drive any of the cars that were on the hauler, and neither one gave appellant permission to do

so.

                                          II. Analysis

A.     First Issue: Is the evidence sufficient to support the conviction?

       Appellant challenges the sufficiency of the evidence to establish that he stole the BMW

or knew it was stolen and that its value was within the $20,000-$100,000 range. We, however,

conclude that the evidence is sufficient for a rational jury to find beyond a reasonable doubt that

appellant was guilty of theft as charged in the indictment.

       1.      Standard of Review and Applicable Law

       We review the sufficiency of the evidence to support a conviction by viewing all of the

evidence in the light most favorable to the verdict to determine whether any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319 (1979).        The standard of review is the same for direct and

circumstantial evidence cases; circumstantial evidence is as probative as direct evidence in

establishing guilt. Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014); Acosta v. State,

429 S.W.3d 621, 625 (Tex. Crim. App. 2014).




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           This standard gives full play to the fact finder’s responsibility to resolve testimonial

conflicts, weigh the evidence, and draw reasonable inferences from basic facts to ultimate facts.

Jackson, 443 U.S. at 319; Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied,

136 S. Ct. 198 (2015). The fact finder is the sole judge of the evidence’s weight and credibility.

See TEX. CODE CRIM. PROC. art. 38.04; Dobbs, 434 S.W.3d at 170.

           Thus, when performing an evidentiary sufficiency review, we may not re-evaluate the

weight and credibility of the evidence and substitute our judgment for that of the fact finder’s.

See Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we determine

whether the necessary inferences are reasonable based upon the cumulative force of the evidence

when viewed in the light most favorable to the verdict. Murray, 457 S.W.3d at 448. And we

must presume that the fact finder resolved any conflicting inferences in favor of the verdict and

defer to that resolution. Id. at 448–49.

           A person commits theft if he unlawfully appropriates property with the intent to deprive

the owner of that property. TEX. PENAL CODE § 31.03(a).1 “Appropriate,” in this context means

“to acquire or otherwise exercise control over property.” Id. § 31.01(4)(B).

           Appropriating property is unlawful if (1) it is without the owner’s effective consent, or

(2) the property is stolen and the actor appropriates the property knowing it was stolen by

another. Id. § 31.03(b)(1), (2). An “owner” is “a person who . . . has title to the property,

possession of the property, whether lawful or not, or a greater right to possession of the property

than the actor.” Id. § 1.07(a)(35)(A).




     1
      The offense, as charged here, is a third degree felony if the value of the stolen property is greater than $20,000 but less than $100,000.
See TEX. PENAL CODE § 31.03(e)(5).




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       2.      The Evidence

               a.      Identity

       We first examine whether the evidence is sufficient to establish that appellant unlawfully

appropriated the BMW. Neither Parsons nor Stratton gave appellant permission to drive the

BMW.

       And Songer saw the BMW’s fake tag when he saw appellant driving it a few days after it

was stolen. Appellant appeared “nervous” when Songer saw him.

       The next day, appellant exited the same BMW and ran from Songer. The jury could have

inferred guilt from this evidence of appellant’s flight. See Bigby v. State, 892 S.W.2d 864, 883

(Tex. Crim. App. 1994).

       Also, Smith testified that appellant told her the BMW was stolen, and he had been

driving it for several days.

       Similarly, the jury could also infer guilt from Crouch’s testimony that appellant asked for

his daughter to provide an alibi. See Padilla v. State, 326 S.W.3d 195, 201 (Tex. Crim. App.

2010) (consciousness of guilt can be inferred by lying about events surrounding crime).

       The BMW’s contents were unusual, given the type of vehicle, and the gloves that were

found in the driver’s door pocket were suspicious because Frageu explained that car thieves

frequently wear gloves.

       We conclude that the cumulative force of all of the incriminating circumstances is

sufficient to support the jury’s finding that appellant unlawfully appropriated the BMW.

               b.      Property Value

       The evidence is also sufficient to show the BMW’s value. “Value” means the property’s

fair market value at the time and place of the offense. See TEX. PENAL CODE ANN. § 31.08(a).




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Fair market value is the amount the property would sell for in cash, given a reasonable time for

selling it. Keeton v. State, 803 S.W.2d 304, 305 (Tex. Crim. App. 1991).

       Value may be proved in a variety of ways, including through the property owner’s

testimony. Id.; see Sullivan v. State, 701 S.W.2d 905, 908 (Tex. Crim. App. 1986). When a

property owner testifies, he can give his “best knowledge” of the property’s value, and there is a

presumption that he is giving a fair market value estimate. Id.

       Here, Stratton, the owner, testified that the BMW’s blue book value was $24,500, which

value he reported to the police. This testimony was sufficient to establish value, and speculation

on cross-examination about whether CarMax may have purchased the BMW for less does not

render the evidence insufficient. The jury resolved any conflicts in the evidence, and we defer to

their determination. See Dobbs, 434 S.W.3d at 170.

        Therefore, we conclude that the evidence is sufficient to support appellant’s conviction,

and resolve his first issue against him.

B.     Second Issue: Did the charge’s application paragraph allow the jury to reach a
       non-unanimous verdict?

       Appellant argues that the charge’s application paragraph did not require unanimity as to

whether (i) he stole the vehicle or appropriated it from another knowing it was stolen, (ii)

Stratton or Silvarado owned the vehicle, and (iii) whether the stolen motor vehicle was the BMW

or the car-hauler.

       As discussed below, we conclude that there was no error because these aspects of the

charge do not require unanimity.

       1.      Standard of Review and Applicable Law

       We review jury charge error in two steps. Cortez v. State, 469 S.W.3d 593, 598 (Tex.

Crim. App. 2015). First, we determine whether error exists in the charge. Ngo v. State, 175

S.W.3d 738, 743–44 (Tex. Crim. App. 2005). Second, if there is error, we review the record to
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determine whether the error caused sufficient harm to require reversing the conviction. Id. The

degree of harm needed for reversal depends on whether the appellant preserved the error by

objecting to the charge. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on

reh’g). When, as here, charge error is not preserved, reversal is not required unless the resulting

harm is egregious. Id.

       Texas law requires a unanimous jury verdict in all criminal cases. See TEX. CODE CRIM.

PROC. art. 36.29(a); Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim. App. 2011). This means

that the jury must agree upon the same criminal offense. See Ngo, 175 S.W.3d at 745; see also

Saenz v. State, 451 S.W.3d 388, 390 (Tex. Crim. App. 2014) (jury must agree on all essential

elements of a single offense).

       2.      The Charge

        The charge instructed the jury that their verdict had to be unanimous. Regarding the

charged offense, theft, the application paragraph stated:

       If you find from the evidence beyond a reasonable doubt that on or about the 31st
       day of July 2014, in Dallas County, Texas, the Defendant, did unlawfully
       appropriate property, namely: exercise control over property, to wit: A MOTOR
       VEHICLE, of the value of at least $20,000 but less than $100,000, without the
       effective consent of JIM STRATTON OR SILVERADO RECONDITIONING
       SERVICES INC. the owner of said property, with intent to deprive the said owner
       of the said property, and further, said defendant did unlawfully appropriate
       property, namely, exercise control over property, to wit: A MOTOR VEHICLE,
       of the value of at least $20,000 but less than $100,000 with the intent to deprive
       the owner of the property, JIM STRATON AND SILVERADO
       RECONDITIONING SERVICES INC., and the said property was stolen and the
       defendant did appropriate the said property, knowing that the property was stolen
       by another then you will find the Defendant guilty of the offense of theft.

Thus, the jury was given two alternative means by which the theft could have been committed—

either by directly taking the BMW or receiving it from someone who stole it.

       Theft requires that the accused appropriated property unlawfully with the intent to

deprive the owner of that property. TEX. PENAL CODE § 31.03(a). The manner in which he came


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to possess that property, however, is not an essential element of the crime. See Chavez v. State,

843 S.W.2d 586, 588 (Tex. Crim. App. 1992).

         Therefore, while the jury must unanimously agree about the offense itself, “they need not

be unanimous about the specific manner and means of how that offense was committed.” Young

v. State, 341 S.W.3d 417, 423 (Tex. Crim. App. 2011). As the court of criminal appeals recently

observed, “[i]n the jury-unanimity context, we look to the gravamen of the offense to determine

whether the gravamen is the result of conduct, the nature of conduct, or the circumstances

surrounding the conduct.” Kent v. State, 483 S.W.3d 557, 561 (Tex. Crim. App. 2016). Here,

the gravamen of the offense is appropriation of property without the owner’s consent. Thus,

allowing the jury to choose between alternative manner and means of committing the theft does

not violate the unanimity requirement. See Young, 341 S.W.3d at 423.

         Likewise, providing the jury with two different names for the property owner was not

error.   Specifically, the statute requires that property appropriation be without the owner’s

consent. TEX. PENAL CODE § 31.03(b)(1). “Owner,” in this context means as “a person who . . .

has title to the property, possession of the property, whether lawful or not, or a greater right to

possession of the property than the actor.” TEX. PENAL CODE § 1.07(a)(35)(A). And ownership

may be alleged in either the actual owner or special owner of the property. King v. State, No. 05-

12-00842-CR, 2014 WL 310113, at *4 (Tex. App.—Dallas Jan. 28, 2014, pet. ref’d) (mem. op.).

         Furthermore, the State is only required to prove that the person alleged as the owner in

the indictment is the same as the person shown by the evidence. Byrd v. State, 336 S.W.3d 242,

251–252 (Tex. Crim. App. 2011). There is no argument here concerning an absence of such

proof. And jury unanimity was not required because the name of the owner is not a substantive

element of a theft offense. See TEX. PENAL CODE § 31.03; Saenz, 451 S.W.3d at 390 (jury must

agree on all essential elements of a single offense).

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          Finally, we reject appellant’s argument that the failure to specify whether the property

was the BMW or the truck-hauler violates the unanimity requirement. The charge described the

property as a “motor vehicle.” The entire trial, including the arguments and evidence, was about

theft of a BMW, so there was no question about which motor vehicle was at issue.2 Appellant

cites no authority, nor have we found any, for the premise that the court must specify the type of

motor vehicle in the charge before the jury can find the offense’s “property” element.

          Here, the charge instructed the jury on the offense’s elements: (i) unlawful appropriation

of property with a value of at least $20,000 but less than $100,000, (b) without the owner’s

consent. See TEX. PENAL CODE §§ 31.03 (a), (e)(5). The jury was required to unanimously agree

on these essential elements, nothing more. See Saenz, 451 S.W.3d at 390.

          We thus resolve appellant’s second issue against him.

                                                         III. Conclusion

          Having resolved all of appellant’s issues against him, we affirm the trial court’s

judgment.




                                                                         /Bill Whitehill/
                                                                         BILL WHITEHILL
                                                                         JUSTICE


Do Not Publish
TEX. R. APP. P. 47
150858F.U05



   2
       Because the case centered on the BMW, there was no need to adduce evidence on the hauler’s value.



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                                      S
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                     JUDGMENT

JASON DANIEL CROUCH, Appellant                    On Appeal from the 291st Judicial District
                                                  Court, Dallas County, Texas
No. 05-15-00858-CR       V.                       Trial Court Cause No. F-1476147-U.
                                                  Opinion delivered by Justice Whitehill.
THE STATE OF TEXAS, Appellee                      Justices Bridges and Lang-Miers
                                                  participating.

      Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered December 1, 2016.




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