                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-15-00743-CR

                                           Jose E. NIEVES,
                                               Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                     From the 187th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2015CR2219
                            Honorable Steven C. Hilbig, Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: June 15, 2016

AFFIRMED

           Jose E. Nieves appeals his conviction for theft ($20,000 to $100,000) of a vehicle. He

argues there is insufficient evidence because “no evidence of ownership was offered.” We affirm

the trial court’s judgment.

                                            BACKGROUND

           Nieves went to Chubby’s Auto Sales, a car dealership, and purchased a vehicle using stolen

identification. Nieves was thereafter indicted as follows:

           [O]n or about the 31st Day of July, 2014, JOSE E NIEVES, hereinafter referred to
           as defendant, with intent to deprive the owner, Chubby’s Auto Sales, of property,
                                                                                                    04-15-00743-CR


         namely: An Automobile, did then and there unlawfully, without the effective
         consent of the owner, appropriate said property by acquiring and otherwise
         exercising control over said property, said property being other than real property
         which had a value of Twenty Thousand Dollars ($20,000.00) or more but less than
         One Hundred Thousand Dollars ($100,000);

The case was tried to a jury, which convicted Nieves and sentenced him to eight years’

confinement. The trial court rendered judgment imposing the sentence, and Nieves appeals.

                                       SUFFICIENCY OF THE EVIDENCE

         Nieves’s sole issue is that there is insufficient evidence that Chubby’s owned the vehicle. 1

He argues that at most there was evidence the vehicle belonged to an “unnamed boss” at Chubby’s,

and therefore there is a material variance between the charged offense and the offense proven at

trial. In reviewing the legal sufficiency of the evidence, we ask 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); accord Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App.

2009). We review the evidence “in the light most favorable to the verdict.” Merritt v. State, 368

S.W.3d 516, 525 (Tex. Crim. App. 2012). “Our role on appeal is restricted to guarding against the

rare occurrence when a factfinder does not act rationally,” and we must “defer to the responsibility

of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.” Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010) (internal quotation marks and citations omitted).

         The existence of a specific owner is an essential element of the offense of theft. Byrd v.

State, 336 S.W.3d 242, 251 (Tex. Crim. App. 2011). “‘Owner’ is defined as ‘a person who . . . has

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



1
 In the Statement of the Issues, Nieves challenges the factual sufficiency of the evidence, but we no longer engage in
a separate factual sufficiency review of the evidence to support the elements of an offense that the State must prove
beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010).

                                                        -2-
                                                                                       04-15-00743-CR


possession of the property than the actor[.]’” Id. (quoting TEX. PENAL CODE ANN.

§ 1.07(a)(35)(A)). “Proof of ownership can be shown by an automobile salesperson who has care,

custody, and control of a new car.” Jackson v. State, 270 S.W.3d 649, 657 (Tex. App.—Fort Worth

2008, pet. ref’d).

        Sidney Guajardo, Chubby’s president, testified Nieves came to Chubby’s and identified

himself as Primitivo Sanchez and provided Sanchez’s personal information. Guajardo testified a

sales manager sold a Toyota Tundra to Nieves after Nieves completed a loan application, which

the trial court admitted without objection. The loan application included a sales contract and an

application for title. The sales contract lists Chubby’s as the seller and includes the buyer’s promise

to pay the total sales price for the Toyota Tundra to the seller. The application for title lists

Chubby’s as the seller and the previous owner of the Toyota Tundra.

        Rogelio Mendez, a Chubby’s salesman, also testified Nieves purchased the Toyota Tundra

using Sanchez’s identity. Mendez testified the Toyota Tundra belonged to his boss. Nieves

contends Mendez’s statement proves an “unnamed boss” at Chubby’s owned the vehicle, and thus

the State did not prove Chubby’s was the owner. We disagree. A jury could have rationally inferred

from Mendez’s statement, the sales contract, and the application for title, viewed in a light most

favorable to the verdict, that the truck belonged to Mendez’s employer, Chubby’s. We hold a

rational trier of fact could have found that Chubby’s Auto Sales had title, possession, or care,

custody, and control of the vehicle. See Jackson, 443 U.S. at 319; Laster, 275 S.W.3d at 517; Byrd,

336 S.W.3d at 251; Jackson, 270 S.W.3d at 657.

                                            CONCLUSION

        We affirm the trial court’s judgment.

                                                   Luz Elena D. Chapa, Justice

DO NOT PUBLISH
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