Brent Voncey Fields v. State ( 2009 )

Affirmed and Memorandum Opinion filed October 6, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-08-00339-CR

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Brent Voncey Fields, Appellant

V.

The State of Texas, Appellee

On Appeal from the 284th District Court

Montgomery County, Texas

Trial Court Cause No. 07-07-07420 CR

MEMORANDUM OPINION

Appellant Brent Voncey Fields challenges his felony conviction on two counts of theft of property with a value of more than $20,000 but less than $100,000.  After the jury found appellant guilty on both counts, the trial court assessed punishment as confinement for 50 years.  Appellant contends that the evidence is legally and factually insufficient to support the jury’s findings that appellant (1) committed the felony offense of theft; and (2) committed the felony offense of theft in Montgomery County, Texas.  We affirm.  

Background

            Texas Hobby Auto Auction, a vehicle broker located in Harris County, reported a 2004 Lincoln Navigator stolen in December 2006.  Tom Peacock Cadillac, another vehicle broker located in Harris County, reported a 2006 Cadillac CTS stolen in January 2007.    

Chad Doyle was arrested for driving another vehicle reported stolen from Texas Hobby Auto Auction in December 2006.  Detective Reginald Broughton of the Houston Police Department Auto Theft Division interviewed Doyle on April 17, 2007.  Doyle provided information that led the police to 1114 East Red Cedar Circle in Montgomery County.  Broughton traveled to that address on May 8, 2007 and observed a Lincoln Navigator parked in the driveway bearing license plates that read “8YPS12.”   

Broughton returned to 1114 East Red Cedar Circle on May 17, 2007 and observed a Lincoln Navigator in the driveway and a Cadillac CTS to the right of the driveway.  He checked the license plates and determined that they did not match the vehicles.  The license plates located on the Lincoln Navigator on May 17, 2007 read “982MMW.”  This license plate number and the registration sticker affixed to the Lincoln Navigator belonged to a different model year Navigator located at the Northwood Lincoln Mercury dealership. 

Broughton also checked the vehicle identification number (“VIN”) of both vehicles located at 1114 East Red Cedar Circle and determined that both were reported stolen.  The Lincoln Navigator’s VIN matched the VIN of the same model year vehicle reported stolen from Texas Hobby Auto Auction in December 2006.  The Cadillac CTS’s VIN matched the VIN of the same model year vehicle reported stolen from Tom Peacock Cadillac in January 2007. 

Appellant’s girlfriend, Jewel Ware Rivers, resided at 1114 East Red Cedar Circle.  She began dating appellant in January 2007, and testified that appellant had been driving a Cadillac CTS since that time.  She further testified that appellant began driving a Lincoln Navigator in February 2007.  According to Rivers, appellant gave her rides in both vehicles and said he owned both vehicles.  Rivers gave appellant permission to keep the Lincoln Navigator and Cadillac CTS at her residence.  Appellant drove both vehicles to Rivers’s residence.  

When questioned, appellant initially said both vehicles belonged to Doyle.  Appellant said he had not driven the vehicles and did not have keys to them.  Police found the keys and alarm pads for the Lincoln Navigator and Cadillac CTS in appellant’s pocket.  Police also found a checkbook, personal mail, and vehicle inspection receipts inside the Lincoln Navigator bearing appellant’s name.  The license plate number appearing on the vehicle inspection receipts found inside the Lincoln Navigator did not match the vehicle and did not match the license plates affixed to the vehicle on May 8, 2007 or May 17, 2007.  The license plate number that appeared on the vehicle inspection receipt was “9LFY12.” 

Appellant was arrested on May 17, 2007 in connection with the thefts and charged with two counts of theft of property with a value of at least $20,000 but less than $100,000.  The jury found appellant guilty of both counts.  The trial court sentenced appellant to 50 years in prison in an order signed on February 29, 2008.[1] Appellant appeals from this judgment. 

Analysis

Appellant challenges the legal and factual sufficiency of the evidence supporting his theft conviction.  Additionally, appellant challenges the legal and factual sufficiency of the evidence supporting the jury’s finding that appellant committed the theft in Montgomery County. 

I.         Standard of Review and Applicable Law

In reviewing legal sufficiency of the evidence, an appellate court examines all of the evidence in the light most favorable to the verdict to determine whether any rational factfinder could have found proof of the essential elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319 (1979); Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007).  The court does not sit as a thirteenth juror and may not re-evaluate the weight and credibility of the record evidence or substitute its judgment for that of the factfinder.  Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).

Reconciliation of conflicts in the evidence is within the exclusive province of the factfinder.  See Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998).  The appellate court’s duty is not to reweigh the evidence but to serve as a final due process safeguard ensuring only the rationality of the factfinder.  See Williams v. State, 937 S.W.2d 479, 483 (Tex. Crim. App. 1996).  An appellate court faced with a record that supports conflicting inferences must presume — even if not obvious from the record — that the factfinder resolved any such conflicts in favor of the verdict and must defer to that resolution.  Jackson, 443 U.S. at 326.

In reviewing factual sufficiency of the evidence, an appellate court must determine whether (1) the evidence introduced to support the verdict is “so weak” that the factfinder’s verdict seems “clearly wrong and manifestly unjust,” or (2) the factfinder’s verdict is nevertheless against the great weight and preponderance of the evidence.  Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2008).  In a factual sufficiency review, the court views all of the evidence in a neutral light.  Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000) (en banc).  If the court finds the evidence factually insufficient, the court must remand the case for a new trial.  Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996).

In order to declare that an evidentiary conflict justifies a new trial, an appellate court must rely on some objective basis in the record demonstrating that the great weight and preponderance of the evidence contradicts the jury’s verdict.  See Lancon v. State, 253 S.W.3d 699, 706-07 (Tex. Crim. App. 2008).  An appellate court should not intrude upon the factfinder’s role as the sole judge of the weight and credibility of witness testimony.  Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002).  The factfinder may choose to believe or disbelieve any portion of the testimony presented at trial.  Bargas v. State, 252 S.W.3d 876, 887 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (citing Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (en banc)).  Due deference must be given to the factfinder’s determinations concerning the weight and credibility of the evidence and reversal of those determinations is appropriate only to prevent the occurrence of a manifest injustice.  Martinez v. State, 129 S.W.3d 101, 106 (Tex. Crim. App. 2004).

A person commits the offense of theft if he “unlawfully appropriates property with intent to deprive the owner of the property.”  Tex. Pen. Code § 31.03(a) (Vernon Supp. 2008). An appropriation of property is unlawful if (1) the appropriation “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) (Vernon Supp. 2008).  “Appropriate” means “to bring about a transfer or purported transfer of title to or other nonpossessory interest in property, whether to the actor or another” or “to acquire or otherwise exercise control over property other than real property.”  Id.            § 31.01(4)(B) (Vernon Supp. 2008). 

Under the consolidated theft statute, the manner in which an individual comes into possession of stolen property is not an essential element of theft; criminal liability attaches regardless of whether the individual initially took the stolen property from the owner or subsequently received it from someone who did.  Chavez v. State, 843 S.W.2d 586, 588 (Tex. Crim. App. 1992).  Evidence is sufficient to prove theft if it demonstrates that the accused (1) exercised control over property, (2) intending to deprive the owner of it, (3) without effective consent of the owner.  Id.

Venue for all prosecutions under the consolidated theft statute is controlled by article 13.08 of the Code of Criminal Procedure.  Jones v. State, 979 S.W.2d 652, 657 (Tex. Crim. App. 1998).  Article 13.08 provides as follows: “Where property is stolen in one county and removed by the offender to another county, the offender may be prosecuted either in the county where he took the property or in any other county through or into which he may have removed the same.” Tex. Code Crim. Proc. Ann. art 13.08(a) (Vernon Supp. 2008).  Venue for theft by receiving also is controlled by article 13.08.  See Jones, 979 S.W.2d at 657.  Venue for theft by receiving attaches (1) at the time and place the offender obtains control of the property, and (2) in any county to which the offender removes the property.  Id. 

II.        Sufficiency of the Evidence to Support the Theft Conviction

            Appellant contends the evidence is legally and factually insufficient to support his theft conviction because there is no evidence that appellant (1) effected the initial taking of the Lincoln Navigator and Cadillac CTS, or (2) knew these vehicles were stolen.  We reject this contention. 

Broughton testified that appellant initially claimed the Lincoln Navigator and Cadillac CTS belonged to Doyle.  Appellant told police he had not driven the Lincoln Navigator or Cadillac CTS.  Appellant also told police he did not have keys to either vehicle.  Broughton testified the keys and alarm pads to the vehicles were found in appellant’s pocket.  Rivers testified appellant was driving the Cadillac CTS as of January 2007; began driving the Lincoln Navigator in February 2007; and said he owned both vehicles.  A checkbook, personal mail, and vehicle inspection receipts bearing appellant’s name were found inside the Lincoln Navigator. 

            Broughton further testified he first observed the Lincoln Navigator at 1114 East Red Cedar Circle on May 8, 2007.  License plates affixed to the Lincoln Navigator on that date read “8YPS12.”  When he returned to 1114 East Red Cedar Circle on May 17, 2007, the license plates on the Lincoln Navigator read “982MMW.”  He testified the license plates and registration sticker affixed to the Lincoln Navigator on May 17, 2007 were registered to a Lincoln Navigator from a different model year that was located at the Northwood Lincoln Mercury dealership at that time.  A third license plate number appeared on the vehicle inspection receipts found inside the Lincoln Navigator —“9LFY12.”  The license plate number “9LFY12” belonged to a third Lincoln Navigator.  License plates on the Cadillac CTS were found to be registered to a Cadillac CTS from a different model year.

Viewing this evidence in the light most favorable to the jury’s verdict, the jury could have found beyond a reasonable doubt that appellant knew the Lincoln Navigator and Cadillac CTS were stolen when he took possession of the vehicles.  See Jackson, 443 U.S. at 319; Dewberry, 4 S.W.3d at 740. 

Appellant’s main contention regarding factual sufficiency is that Doyle’s testimony is unreliable.  The jury is the sole judge of the weight and credibility of witness testimony and was free to believe or disbelieve all or any part of Doyle’s testimony; the appellate court should not intrude upon the factfinder’s role.  Vasquez, 67 S.W.3d at 236.  Regardless, our review of the record reveals that there is sufficient evidence to support the appellant’s theft conviction independent of Doyle’s testimony.  

Viewing the evidence in a neutral light, we conclude the evidence is factually sufficient to justify the jury’s conviction of appellant for the felony offense of theft as charged.  See Johnson, 23 S.W.3d at 11.  The jury could have found beyond a reasonable doubt appellant knew the Lincoln Navigator and Cadillac CTS were stolen when he took possession of the vehicles.  The jury’s finding is neither clearly wrong nor manifestly unjust.  See Lancon, 253 S.W.3d at 706-07; Watson, 204 S.W.3d at 414-15; Martinez, 129 S.W.3d at 106.

We overrule appellant’s first issue.

III.      Sufficiency of the Evidence to Support a Finding that Appellant Committed the Theft in Montgomery County

Appellant contends the evidence is legally and factually insufficient to support the jury’s finding that he committed the felony of theft in Montgomery County.  Relying on article 13.18 of the Code of Criminal Procedure, appellant argues that proper venue for prosecution of this case was in Harris County because (1) theft is not a continuing offense, and (2) all elements of the offense of theft were satisfied when the vehicles were removed from their respective dealerships in Harris County. 

Appellant misplaces his reliance on article 13.18. The proper venue provision in this case is article 13.08.  Under article 13.08, venue is proper in (1) the county where the property was stolen, or (2) any county “through or into which” the offender took the property.  Tex. Code Crim. Proc. Ann. art 13.08(a).   

We conclude that the record contains legally sufficient evidence to support the jury’s finding that appellant committed the felony offense of theft in Montgomery County.  Broughton located the Lincoln Navigator and Cadillac CTS at 1114 East Red Cedar Circle in Montgomery County. Rivers testified she gave appellant permission to keep the vehicles at her residence in Montgomery County.   She further testified that appellant drove both vehicles to that address.  Appellant was driving the Cadillac CTS from January 2007 to May 2007 and the Lincoln Navigator from February 2007 to May 2007.  The keys and alarm pads to both vehicles were found in appellant’s pockets, and appellant’s personal items were found inside the Lincoln Navigator. 

Viewing this evidence in the light most favorable to the jury’s verdict, the jury could have found beyond a reasonable doubt that appellant removed the Lincoln Navigator and Cadillac CTS to Montgomery County. See Jackson, 443 U.S. at 319; Dewberry, 4 S.W.3d at 740. 

Viewing the evidence in a neutral light, we conclude the evidence is factually sufficient to justify the jury’s finding that appellant committed the felony offense of theft in Montgomery County.  See Johnson, 23 S.W.3d at 11.  The jury’s finding is neither clearly wrong nor manifestly unjust.  See Lancon, 253 S.W.3d at 706-07; Watson, 204 S.W.3d at 414-15; Martinez, 129 S.W.3d at 106.

We overrule appellant’s second issue.  

Conclusion

            The trial court’s judgment is affirmed.

                                                                        /s/        William J. Boyce

                                                                                    Justice

Panel consists of Justices Anderson, Guzman, and Boyce.

Do Not Publish — Tex. R. App. P. 47.2(b).

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[1] The indictment alleged six enhancement paragraphs, which the trial court found true: (1) a felony burglary conviction on December 19, 1996; (2) a felony forgery conviction on June 26, 1990; (3) a felony credit card abuse conviction on September 16, 1988; (4) a felony credit card abuse conviction on September 26, 1988; (5) a felony unauthorized use of a motor vehicle conviction on September 26, 1988; and (6) a felony unauthorized use of a motor vehicle conviction on September 20, 1983.  Appellant does not challenge the length of his sentence on appeal.