Bartlome, Michael William v. State ( 2013 )

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MICHAEL WI LLIAM BARTLOME, Appellant
V.
TILE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 4
1)allas Count, Texas
Trial Court Cause No. F11-50865-l(
OPINION
l3efore Justices Filz(ierald, Fillmore, and Evans
Opinion by Justice hilmore
Michael WI! ham l3artlome was charged with theft of property in an amount less than
$1 500 having two prior misdemeanor theft convictions, which was a state jail felony, See TEX.
PlcAi, Coiw ANN. 31 .03(e)(4)(D) (West Supp. 2012). The indictment also alleged in
enhancement paragraphs that l3artlome had two prior state jail felony convictions for
unauthorized use of a motor vehicle. See TEX. PENAl, CoDE ANN. 12.425(a) (West Supp. 2012)
(if on the trial of a state jail felony, it is shown defendant has previously been convicted of two
state jail felonies punishable under section 1 2.35(a), defendant shall be punished for third degree
felony). The jury found Bartlome guilty of the theft offense, found the alleged enhancement
paragraphs to be true, and assessed punishment of eight years’ imprisonment and a $10,000 fine.
In one issue. Bartlome asserts a variance between the allegations in the indictment and the proof
at trial renders the evidence msufhcwnt to support the conviction. We aftirm the trial court’s
judgment.
Background
I-larry Scoville has delivered packages for United Parcel Service on the same route for the
past ten years. Approximately sixty percent of the packages Scoville delivers are to residential
addresses and at least half of the residents are not home when Scoville delivers the package.
Scoville’s duties include ensuring the intended recipient receives the package addressed to him.
If a shipper has indicated a package can be left at a residence without someone signing tbr the
package, Scoville leaves the package out of sight from the street, if possible, due to a concern
that someone will steal the package. Although packages were rarely stolen on Scoville’s mute.
around the time of the offense in this case, packages were being taken approximately three to
four times per week.
On January 5. 2011, Scovifle delivered three packages to 6345 Richmond Street in
Dallas, Texas. Scoville placed the packages inside the screen door. After delivering the
packages, Scoville was “setting up” the next section of his truck in the order the packages would
be delivered when he saw Bartlome walking down the street Although Scoville initially was not
concerned about Bartlome. when Scoville got out of the truck, Bartlome “looked directly at
him.” At that point, Scoville knew “there was something going down.”
Bartlome sat on the steps in front of a house. Scoville drove down the block and
delivered another package. When Scoville looked back, he saw Bartlome walking across the
street Scoville decided to drive around the block. When he did, he saw Bartlome with three
packages in his hands. After Scoville got out of the truck, Bartlome threw two of the packages at
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him and ‘tuok oil running.” Scoville caught Bartlome and held him (or the police. Scoville did
not give Ban tome permission to take the packages.
Christopher Byrd tcstittcd he lives at 6345 Richmond Avenue in Apartment Ii Byrd
ordered bicycle parts from two different companies and paid approximately sixty-three dollars
for the parts. On January 5. 2011, the police called him and said someone attempted to take the
packages containing the bicycle parts from his porch. Byrd did not give anyone permission to
take the packages.
Bartlome was indicted for theft. The indictment alleged Scoville was the owner of the
packages and had not given Bartlome permission to take them. The jury found Bartlome guilty
of the charged offense, found the enhancement paragraphs were true, and assessed punishment of
eight yeats’ imprisonment and a $10,000 fine.
Analysis
Bartelome argues the evidence is insufficient to support the conviction because there is a
material variance between the person the State alleged owned the property, Scoville, and the
actual owner of the property, Byrd. We review the sufficiency of the evidence under the
standard set out in Jackson v. VIrginia, 443 U.S. 307 (1979). Adames v. State, 353 S.W.3d 854,
859 (Tn. Crim. App. 2011), caL denied, 132 S. Ct 1763 (2012). We examine all the evidence
in the light most favorable to the verdict and determine whether any rational trier of fact could
have found the essential elements of the offense beyond a reasonable doubt Jackson, 443 U.S.
at 319; !vferrin v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). A variance occurs when
there is a discrepancy between the facts alleged in the charging instrument and the proof offered
at trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001). A variance in pleading
and proof can involve either the statutory language that defines the offense or a non-statutory
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allegation that is descriptive of the offense in some way. Johnson v. Slate, 364 S.W.3d 292.294
([cx. (rim. App.). ccii. denied. 133 S. Ct. 536 (2012). Only a material variance between the
charging instrument and the proof at trial will render the evidence insufficient to support the
conviction. Grillihar, 46 S.W.3d at 257.
A person commits theft if he unlawfully appropriates property with the intent to deprive
the owner of the property. Tex. LENa CODE ANN. §31.03(a); see also Byrd v. State, 336
S.W.3d 242. 250 (Tex. Crim. App. 2011) (“the gravamen of theft is in depriving the true owner
of the use, benefl6 ei/oyment or value of his property, without his consent” (emphasis in
original )). Although the name of the owner is not a substantive element of the ofThnse, the code
of criminal procedure requires the State to allege the name of the owner of the property in its
charging instrument. Byrd, 336 S.W.3d at 251; see also TEX. CODE C1UM. PROC. ANN. arts.
21.08. 21.09 (West 2009). The State is required to prove, beyond a reasonable doubt, that the
person alleged in the indictment as the owner is the same person as shown by the evidence.
Byrd, 336 S.W.3d at 252.
‘Where one person owns the property, and another person has the possession of the same,
the ownership thereof may be alleged to be in eitheC TEx. CODE CLUM. PROC. ANti, art. 21.08;
see atco Garza v. State, 344 S.W.3d 409,412—13 (Ta. Crim. App. 2011) (“A ‘special owner’ is
an individual who is in custody or control of property belonging to another person.” (quoting
Ilarreil v. State, 852 S.W.2d 521, 523 (Tex. Crim. App. 1993)). An owner is a person who “has
title to the property, possession of the property, whether lawfiul or not or a greater right to
possession of the property than the actor[.]” Thc PENAL CODE ANN. § l.07(aX35XA) (West
Supp. 2012). “Possession” is the “actual care, custody, control, or management” of the property.
Id. at § I .07(a)(39); see also Garza, 344 S.W.3d at 413. “[T]o give ownership status to anyone
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with a riional uunueuiioi) to the pr()prtv. ilie icslaIurc has ,ivcn ‘()wnr an expansive
inLafling onc ii wing possoi ‘ mid ist in thd pm opci tx through titk. ssLsslon, v hcthem
hi\v liii or iiot or a rucater nrlit to possession ot the property than the dck’nd;iiit. is a OWHCF ol
the property:’ Gurza, 344 S.W.3d at 413: Freeman v, State, 707 S.W.2d 597, 603 (fex. Crim,
App I ) (p1w ii tt op I ‘t a/so Ii \ Pt \I ( ii>! \N\ I 07( i)( )( \ ) I ( hi... kL\ to
answering the question of which person has the greater right to possession of the property is
w ho at tin tImc of i1i oniiilis lOfl 0/ ih 0/IL a %( h id the nri. mtL r or hi to p sion ot thd
property: Freeman, 707 S.W.2d at 603 (emphasis in original).
Bartlume argues the State alleged Scoville was the owner of the packages, but proved
Byrd was the actual owner. Although Byrd was to be the ultimate recipient of the property,
Scovi lie was responsible For delivering the packages to the intended recipient. In January 2() I I
packages that Scoville had delivered on his route were being stolen, Therefore, he attempted to
ensure the packages reached Byrd by placing them inside the screen door to shield them from
view from the street. Because Bartlome’s behavior after Scoville delivered the packages made
him suspicious that “something was going down,” Scoville drove around the block in an attempt
to ensure the packages he had left for I3yrd were safely delivered. Under these circumstances,
Scovilic, at the time of the commission of the offense, clearly had a greater right to possession of
the packages than Bartlome. See Freeman, 707 S.W.2d at 603; see e.g. flat/and v. State, 87 Tex.
Crim. 89. 92, 219 S.W. 458, 459 (1920) (op. on rch’g) (care, control, and management of
property, when lost or taken, was in mail carrier, and would remain in him until the same had
been delivered to the real owner or at his office, or there was evidence that right of possession of
mail carrier was interfered with or changed and, because last lawful possession of property was
in mail carrier, allegation of ownership should have been mail carrier).
We conclude there is no variance between the facts alleged in the indictment and the facts
proved at trial. Further, there is legally sufficient evidence to support the jury’s finding that
Scoville was the owner of the packages. Accordingly, we resolve Bartlome’s sole issue against
him and affirm the trial court’s judgment.
ROBERT M. FILLMORE
JUSTICE
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110683F.1J05
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JUDGMENT
MICHAEL WiLLIAM I3ARTLOME, On Appeal from the Criminal District Court
Appellant No. 4, Dallas County, Texas
Trial Court Cause No. FI1-50865-K.
No. 05-11 -00683-CR V. Opinion delivered by Justice Fillmore.
Justices FitzGerald and Evans participating.
THE STATE OF TEXAS, Appellec
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this l
2 day
of February, 2013.
7/
/
ROBERT M. FILLMORE
JUSTICE