Affirmed and Memorandum Opinion filed March 26, 2013.




                                           In The

                       Fourteenth Court of Appeals

                                  NO. 14-11-00807-CR


                      DAVID LORENZA JOYNER, Appellant
                                              V.
                          THE STATE OF TEXAS, Appellee


                      On Appeal from the 174th District Court
                              Harris County, Texas
                          Trial Court Cause No. 1278852


                   MEMORANDUM                          OPINION

       Appellant David Lorenza Joyner appeals his conviction of state jail felony
theft,1 complaining that the trial court violated his due process right to present a
defense by denying his motion for continuance and complaining the evidence was
legally insufficient to prove he committed theft. We affirm.

       1
         Theft is a state jail felony if the offender previously has been convicted two or more
times of any grade of theft. Tex. Penal Code § 31.03(e)(4)(D). Appellant previously was
convicted twice of theft.
                                         Background
       In September 2010, the owner of the shop River Oaks Car and Stereo
observed appellant enter the shop through the back door. Appellant was greeted by
an employee in the shipping department.               After engaging in a conversational
exchange with appellant, the employee headed toward the back door to escort
appellant out. Appellant acted as if he were going to follow the employee but
instead stayed behind, picked up a Nikon camera from a desk, put the camera in his
bag, and then proceeded to follow the employee. Another employee came out of
the shipping department and blocked appellant’s exit, and the first employee turned
around. The owner and both employees confronted appellant, who then removed
the camera from his bag.2 Appellant subsequently was arrested for theft.

       Appellant represented himself at trial and attempted to elicit testimony from
several witnesses that appellant had been asked to clean the shop’s parking lot in
exchange for $15 and the owner of the adjoining shop had paid appellant $10 for
cleaning the adjoining shop’s parking lot. Appellant argued the owner of River
Oaks Car and Stereo refused to pay appellant and he took the camera as collateral,
to be returned when he got paid.3 The owner and two employees each testified
they had not asked appellant to clean the parking lot or promised him payment for
any work.4

       Appellant filed various pretrial motions, including a motion for continuance
on the day of trial, which the trial court denied. Appellant pleaded not guilty, and
the case was tried to a jury.           The jury found appellant guilty and assessed
       2
           The owner was armed when he confronted appellant.
       3
         Appellant did not take the stand. Appellant argued in closing, “[A] witness stated that I
said, you all are not getting this camera back until you give me what you owe me.”
       4
           The officer who arrested appellant wrote in his police report that the shop owner had
told the officer appellant sometimes did odd jobs for the shop owner. The shop owner denied
this fact at trial.
                                                2
punishment at 15 years’ confinement.

                                      Discussion
        In two issues, appellant complains the trial court violated his due process
right to present a defense by denying his motion for continuance and complains the
evidence was insufficient to prove that he committed theft.

   I.       No abuse of discretion in denying motion for continuance
        In his first issue, appellant argues he was denied the opportunity to present a
defense because the trial court denied his motion for continuance seeking time to
obtain an expert witness who could investigate and testify as to appellant’s mental
illness.5 Appellant asserts an expert might have presented evidence that appellant
did not have the requisite mens rea to commit theft.

        We review a trial court’s ruling on a motion for continuance for abuse of
discretion.     Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007);
Nwosoucha v. State, 325 S.W.3d 816, 825 (Tex. App.—Houston [14th Dist.] 2010,
pet. ref’d). To establish an abuse of discretion, a defendant must show he was
actually prejudiced by the denial of his motion.         Gallo, 239 S.W.3d at 764;
Nwosoucha, 325 S.W.3d at 825. Speculation will not suffice to obtain reversal for
a trial court’s failure to grant a continuance. See Renteria v. State, 206 S.W.3d
689, 702 (Tex. Crim. App. 2006); Nwosoucha, 325 S.W.3d at 825. An appellate
court will conclude the trial court’s denial of a motion for continuance was an
abuse of discretion “only if the record shows with considerable specificity how the
defendant was harmed by the absence of more preparation time than he actually
had.”       Gonzales v. State, 304 S.W.3d 838, 842 (Tex. Crim. App. 2010);
Nwosoucha, 325 S.W.3d at 825. A defendant can ordinarily make such a showing

        5
          See Potier v. State, 68 S.W.3d 657, 664 (Tex. Crim. App. 2002) (acknowledging
constitutional right to due process includes right to present a valid defense).
                                           3
at a hearing on a motion for new trial because only then will he be able to produce
evidence regarding what additional information, evidence, or witnesses the defense
would have had available if the trial court had granted the motion for delay.
Gonzales, 304 S.W.3d at 842–43; Nwosoucha, 325 S.W.3d at 825-26.

       In his motion for continuance, filed on the day of trial, appellant asserted
that he needed an expert witness because he

       lost contact with a vital witness who could have testified that during
       the days (about a week) leading up to the date of the alleged offense
       and on the offense date[, appellant] was suffering from mental
       disorders which included but [were] not limited to: hearing voices,
       seeing visions, major depression/anxiety, and [appellant] was trying to
       get his medications renewed.

Appellant argued “due to [the loss] of such witness[, his] only alternative [was] to
present an expert witness [psychologist] and raise the defense of insanity.” 6 The
trial court denied the motion on the grounds that appellant previously had
represented to the trial court that he would not pursue an insanity defense to the
theft charge and the trial court previously had granted appellant’s request for a
continuance to hire an investigator “to help you get whatever witnesses you needed
to get here today.”7

       As an initial matter, we note that appellant argued to the trial court that he

       6
         The trial court previously had granted appellant’s motion for approval of funds to hire
an investigator to help locate the missing witness.
       7
         The case was initially set for trial on August 31, 2011, at which time appellant presented
numerous pretrial motions, including the request for a continuance to hire an investigator. At
that hearing, the trial court continued the trial to September 12 but stated,
       [A]s far as the Court’s concerned, this is your . . . pretrial motion hearing on the
       theft case. You’ve indicated to me that we’ve covered all of the motions that you
       have pending. . . . [W]e’re not going to do another lengthy pretrial motion
       hearing on the 12th. . . . So, all your witnesses and everybody needs to be ready
       to go on the 12th with whatever witnesses and documents that you need on that
       day.

                                                4
needed an expert to help him present an insanity defense, not to show that he did
not intend to commit theft. His mens rea argument is being raised for the first time
on appeal and thus is waived. See Tex. R. App. P. 33.1(a)(1)(A). Regardless, we
conclude the trial court did not abuse its discretion in denying appellant’s motion
for continuance.

       Appellant filed a motion for new trial seeking an evidentiary hearing “to
adduce facts not otherwise in the record.” Appellant complained that he was
unable to present expert witnesses at trial and stated, “At an evidentiary hearing on
this motion for new trial I can prove how the trial court’s failure to grant a
continuance denied me . . . Sixth and Fourteenth Amendment Rights . . . .”
However, appellant did not explain what evidence he would adduce or what
experts he would produce at a hearing on his motion for new trial. The trial court
denied appellant’s request for a hearing.8              Both lay and expert testimony
concerning mental illness that directly rebuts the particular mens rea necessary for
the charged offense may be relevant and admissible at trial, Ruffin v. State, 270
S.W.3d 586, 595 (Tex. Crim. App. 2008), but appellant did not argue in his motion
for new trial that he would have been able to present such evidence through an
expert. There is nothing in the record showing the facts appellant expected an
expert to prove, and we may not speculate as to what evidence an expert may have
presented. See Renteria, 206 S.W.3d at 702; see also Nwosoucha, 325 S.W.3d at
825-26. The record is also devoid of any evidence that appellant attempted to
secure an expert before trial, even though the trial court previously had granted
appellant’s request for an investigator to help appellant obtain witnesses for trial.
See Nwosoucha, 325 S.W.3d at 826. Appellant has not established harm in relation
to his inability to obtain an expert. See id. We overrule appellant’s first issue.
       8
          Appellant also filed an amended motion for new trial on another ground not relevant to
this issue. The trial court also denied appellant’s request for a hearing on the amended motion.
                                               5
   II.      Evidence of intent to commit theft
         In his second issue, appellant complains the evidence was insufficient to
prove that he intended to commit theft because he voluntarily returned the camera.
When reviewing sufficiency of the evidence, we view all of the evidence in the
light most favorable to the verdict and determine, based on that evidence and any
reasonable inferences therefrom, whether any rational factfinder could have found
the elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d
743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–19
(1979)); see also Nava v. State, 379 S.W.3d 396, 403 (Tex. App.—Houston [14th
Dist.] 2012, pet. granted). We do not sit as thirteenth juror and may not substitute
our judgment for that of the factfinder by reevaluating the weight and credibility of
the evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010); Nava,
379 S.W.3d at 403. Rather, we defer to the factfinder to fairly resolve conflicts in
testimony, weigh the evidence, and draw reasonable inferences from basic facts to
ultimate facts. Isassi, 330 S.W.3d at 638; Nava, 379 S.W.3d at 403. This standard
applies equally to both circumstantial and direct evidence. Isassi, 330 S.W.3d at
638; Nava, 379 S.W.3d at 403.           Each fact need not point directly and
independently to the appellant’s guilt, as long as the cumulative effect of all
incriminating facts is sufficient to support the conviction. Hooper v. State, 214
S.W.3d 9, 13 (Tex. Crim. App. 2007); Nava, 379 S.W.3d at 403.
         The State was required to prove beyond a reasonable doubt that appellant
“unlawfully appropriate[d] property with intent to deprive the owner of [the]
property.” Tex. Penal Code § 31.03(a). The shop owner testified that he saw
appellant take the camera, place it in his bag, and attempt to exit the shop.
Appellant relinquished the camera only after being confronted by the shop owner
and employees. Appellant argued he took the camera because the shop owner
owed him money and appellant would give the camera back after he got paid. We
                                         6
conclude a jury reasonably could have inferred from the evidence presented at trial
that appellant intended to deprive the shop owner of the camera. See Isassi, 330
S.W.3d at 638 (noting jury must weigh evidence and resolve any conflicts); Nava,
379 S.W.3d at 403 (same). We overrule appellant’s second issue.

      For the above reasons, we affirm the trial court’s judgment.




                                       /s/       Martha Hill Jamison
                                                 Justice

Panel consists of Justices Christopher, Jamison, and McCally.
Do Not Publish — Tex. R. App. P. 47.2(b).




                                             7
