









 




 


NO.
12-09-00396-CR
      
IN THE COURT OF
APPEALS 
 
            TWELFTH
COURT OF APPEALS DISTRICT
 
                                      TYLER, TEXAS
TIMOTHY
B. CHOICE,                                    §                 APPEAL FROM THE
7TH
APPELLANT
 
V.                                                                         §                 JUDICIAL
DISTRICT COURT
 
THE STATE OF TEXAS,
APPELLEE                                                        §                 SMITH
COUNTY, TEXAS
                                                        
                                         
OPINION
            Timothy
B. Choice appeals his conviction for theft of copper wire.  A jury found him
guilty and sentenced him to sixteen years of imprisonment and a fine of
$2,500.00.  He contends the evidence is legally insufficient to support the
conviction and the trial court erred by denying his requested instruction on a
lesser included offense.  We affirm.
 
Background
            James
Smith stores rolls of copper wire on his property for use in his work as an
electrician.  One afternoon, he and his wife returned to their home and saw a
vehicle parked in front of their house.  Smith attempted to speak to the
driver, Appellant, but Appellant drove away.  Two or three partial rolls of
copper wire were on the ground near where the car had been parked.  Smith
returned to his vehicle and followed Appellant until Appellant stopped in a
neighbor’s driveway.  Smith again attempted to speak to Appellant, but
Appellant drove around the Smiths’ vehicle and got away.  The trunk of
Appellant’s car was not closed, and Smith saw rolls of copper wire in the
trunk.
 
Legal
Sufficiency of the Evidence
            In
his first issue, Appellant contends the evidence is legally insufficient to
support his conviction.  Specifically, he argues that the State did not prove
that the wire stolen had a copper consistency of at least fifty percent.
Applicable
Law
            In
reviewing the legal sufficiency of the evidence to support a conviction, we
consider all the evidence in the light most favorable to the verdict to
determine whether the jury was rationally justified in finding guilt beyond a
reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319, 99 S.
Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979).  It is the jury’s duty to resolve
conflicts in the testimony, weigh the evidence, and draw reasonable inferences
from basic facts to ultimate facts.  Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007).  The appellate court determines whether the
necessary inferences are reasonable based upon the combined and cumulative
force of all the evidence when viewed in the light most favorable to the
verdict.  Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App.
2007).
            A
person commits theft if he unlawfully appropriates property with intent to
deprive the owner of the property without the owner’s effective consent.  Tex. Penal Code Ann. § 31.03(a), (b)(1)
(Vernon Supp. 2010).  The offense is a state jail felony if the value of the
property stolen is less than $20,000.00 and is insulated or noninsulated wire
or cable that consists of at least fifty percent copper.  Tex. Penal Code Ann. §
31.03(e)(4)(F)(iii) (Vernon Supp. 2010).
Discussion
            The
value and copper content of stolen wire determine the applicable penalty and
thus must be alleged and proven.  See id.  Appellant was
indicted for unlawfully appropriating insulated and noninsulated wire that
consisted of at least fifty percent copper, valued at less than $20,000.00,
from James Smith without Smith’s effective consent and with intent to deprive
Smith of the property.  Smith testified that he had been an electrician for
about nine years and is familiar with copper wire.  He explained that all of
his wire is insulated and one hundred percent copper.  
On
cross examination, Smith said, “Everything I got behind my shed is copper, 100
percent.”  Defense counsel asked what it said on the box and whether it stated
a percentage.  Smith answered that it says “copper wire” and does not say what
percentage.  At this point, Smith seemed less certain.  Counsel asked, “So I
mean, for all you know, it could be 49 percent copper?”  Smith replied, “I
don’t think so; but, yeah, for all I know, it could.”  On redirect, Smith
agreed with the prosecutor that there is no way to test the wire Appellant
stole to determine its copper content because that wire is gone.  Smith again
stated, however, that all the wire on his property is one hundred percent
copper.  On recross examination, counsel again asked Smith “what percentage it
was,” and Smith replied, “I told you I didn’t know.  But I’m sure it’s --” 
Apparently, counsel cut him off to ask, “You think it might be, but you don’t
know?”  Smith replied that he really did not know.  On redirect, the prosecutor
asked Smith if he knew for sure the “percentage copper” of the wire in the
trunk.  Smith said he did not know.  
When
he was recalled by the State later in the trial, Smith explained that if a wire
is less than fifty percent copper, it is called copper coated, and if it is
more than fifty percent copper, it is copper.  Smith stated that the rolls on
his property are copper and, at the time he purchased the wire he had at his
home, it indicated on it that it was copper.  Smith reiterated that the wire in
Appellant’s trunk belonged to Smith.  On recross, Smith explained that earlier,
when counsel asked about the percentage, he did not know and was guessing about
the copper content of the wire in the trunk.  So over the lunch break he
contacted a company that sells copper wire and found out.  At that point, he
was able to say what was in the trunk because he knows what type of wire he
had.  He also explained that he did not see a tag on the wire in Appellant’s
trunk indicating what copper percentage those spools were.  
In
an attempt to be completely truthful, Smith, who did not have the opportunity
to inspect the wire in Appellant’s trunk, and did not see a label or tag on it,
testified that he did not “know” the copper content of that wire.  When he was
recalled to the stand, Smith was no longer uncertain.  Smith also stated
several different times during his testimony, on direct and cross examination,
that the only kind of wire he had on his property was copper wire.  He phrased
it in various ways: “copper wire,” “solid copper,” “100% copper,” and “not
copper coated.”  He never wavered on this point.  To the extent Smith’s
testimony was conflicting, the jury was entitled to resolve those conflicts.  See
Clayton, 235 S.W.3d at 778.  Even though Smith said he did not know
how much copper was in the wire in Appellant’s trunk, there was evidence that
the only type of wire Smith had at his home was one hundred percent copper.  Therefore,
the jury was rationally justified in inferring that Appellant necessarily stole
wire that was one hundred percent copper.  See id.  The evidence
is legally sufficient to support the conviction.  See Jackson,
443 U.S. at 319.  We overrule Appellant’s first issue.
 
Lesser
Included Offense Instruction
            In
his second issue, Appellant asserts that the trial court erred by denying his
request for a jury instruction on the lesser included offense of theft.  He
argues that, in order to prove its indictment, the State had to prove all of
the elements of simple theft and one additional jurisdictional element that the
item stolen was wire consisting of at least fifty percent copper.  He further
argues that, based on Smith’s testimony that he did not know if the stolen wire
was greater than fifty percent copper, the record contains evidence that
supports a finding that Appellant was guilty of only simple theft.  He asserts
that he was harmed because the punishment range for simple theft is much lower
than the punishment range for theft of copper.
Applicable
Law
            An
offense is a lesser included offense if it is established by proof of the same
or less than all the facts required to establish the commission of the offense
charged.  Tex. Code Crim. Proc. Ann.
art. 37.09(1) (Vernon 2006).  A defendant is entitled to a lesser included
offense instruction in the jury charge if (1) the requested charge is a lesser
included offense of the offense charged; and (2) there is some evidence that would
permit a rational jury to find that if the defendant is guilty, he is guilty only
of the lesser offense.  Feldman v. State, 71 S.W.3d 738, 750
(Tex. Crim. App. 2002) (op. on reh’g).  In making our determination, we
evaluate the evidence in the context of the entire record.  Hall v. State,
158 S.W.3d 470, 473 (Tex. Crim. App. 2005).  However, the appellate court does
not consider whether the evidence is credible, controverted, or in conflict
with other evidence.  Id.  Regardless of its strength or
weakness, if any evidence raises the issue that the defendant is guilty only of
the lesser offense, the charge must be given.  Saunders v. State,
840 S.W.2d 390, 391 (Tex. Crim. App. 1992) (en banc, per curiam).
Except
in certain circumstances, a theft offense is a Class A misdemeanor if the value
of the property stolen is $500.00 or more but less than $1,500.00.  Tex. Penal Code Ann. §  31.03(e)(3)
(Vernon Supp. 2010).  The offense is a state jail offense if the property stolen
is wire or cable that is valued at less than $20,000.00 and consists of at
least fifty percent copper.  Tex. Penal Code
Ann. § 31.03(e)(4)(F).  Thus, the copper content is not an element of
the offense; rather, just as property value does, copper content determines the
penalty grade.  See Campbell v. State, 5 S.W.3d 693, 699 (Tex.
Crim. App. 1999) (en banc).[1]
Discussion
            Smith’s
testimony that Appellant stole wire valued at $1,200.00, without proving that
the wire was at least fifty percent copper, would be sufficient to establish Class
A misdemeanor theft.  Thus, the first prong of our inquiry is satisfied.  See
Feldman, 71 S.W.3d at 750.  Regarding the second prong, the question
is whether there is any evidence that, if believed, would indicate that the
wire was something less than fifty percent copper.  Smith testified that he did
not know the percentage of copper in the wire in Appellant’s trunk, and he said
that for all he knew, it could be forty nine percent copper.  To say that one
does not know the percentage of copper in the wire is not the same as saying it
was less than fifty percent copper.  Smith’s testimony is not evidence that the
wire Appellant stole was not copper wire.  Furthermore, Smith also testified
that all the wire on his property was one hundred percent copper.  Thus, there
is no evidence in the record that the wire was not at least fifty percent copper. 
Therefore, there is no evidence that would permit a jury rationally to find
that if Appellant is guilty, he is guilty only of Class A misdemeanor theft.  See
id.  We overrule Appellant’s second issue.
 
Disposition
            We
affirm the trial court’s judgment.
 
 
                                                                                    Brian Hoyle
                                                                      
Justice
 
 
 
 
Opinion delivered April 20, 2011.
Panel consisted
of Worthen, C.J., Griffith, J., and Hoyle, J.
 
 
 
(PUBLISH)




                        [1] Strictly
speaking, theft of copper wire is a theft under Section 31.03(a),(b)(1).  We
have found no cases involving a conviction for theft of copper wire and a
complaint that the trial court erred in failing to include a lesser included
offense instruction on a theft carrying a lighter penalty.  We note, however,
that other courts treat theft offenses carrying a lesser penalty as lesser
included offenses of theft offenses carrying a greater penalty.  See Franklin
v. State, 219 S.W.3d 92, 96 (Tex. App.–Houston [1st Dist.] 2006, no
pet.); Martinez v. State, 171 S.W.3d 422, 427-28 (Tex.
App.–Houston [14th Dist.] 2005, no pet.).


