George Jamil Wehbe v. State ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-07-00407-CR
GEORGE JAMIL WEHBE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
----------
MEMORANDUM OPINION1
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The trial court convicted Appellant George Jamil Wehbe of aggregated
theft of vehicles of a combined value of not less than $1,500 but not more than
$20,000 and sentenced him to pay a $1,000 fine and to serve two years’
confinement, with the confinement portion of the sentence probated for five
years. In two points, Appellant complains that the trial court lacked jurisdiction to
hear the case and that the evidence is insufficient to support his conviction
1
See Tex. R. App. P. 47.4.
because no evidence identified him as the actor. Because we hold that the trial
court had jurisdiction and that the evidence is sufficient to support Appellant’s
conviction, we affirm the trial court’s judgment.
I. Background Facts and Procedural History
Appellant worked for Metroplex Towing, located in the City of Fort Worth.
At the time of his indictment, Appellant had already been cited by the city for
violating towing provisions, and some of the violations were still pending at trial.
Appellant filed a motion to quash the indictment, requesting notice of the
manner and means by which he was alleged to have committed the thefts. The
trial court denied the request but required the State to explain orally the theory
under which it sought to prove the thefts.
The State argued to the trial court that further notice of manner and means
was not necessary because the State had tracked the theft statute and was not
alleging a violation of the transportation code or municipal code:
THE COURT: Factually the manner and means are the same. He
took the tow, right?
[PROSECUTOR]: Yes, Your Honor.
THE COURT: You are saying that he towed somebody improperly?
[PROSECUTOR]: Yes. Well, actually we are saying that he did this
improperly. We are not making reference to––we are not going to
ask the Court for a charge instruction that he violated the Fort Worth
Municipal Code or an Occupations Code. We believe we have to
prove that, Your Honor, to rebut their possible defense that he had
this authority. We aren’t alleging that he did not have authority
under the Occupations Code. I mean, that’s something that they are
going to prove up. We’re alleging theft.
2
And, Your Honor, that’s different from the Transportation Code
and the Occupations Code, and even if you believe that it’s not the
same, when you read it, the criminal and the civil penalties don’t say
exclusive. He can still be prosecuted under other statutes that
govern his conduct.
As far as the State, we would likely––maybe the whole thing
could be that it’s double jeopardy. If he’s found guilty under one
criminal statute, he can’t be prosecuted again because it’s part and
parcel to the same conduct. We aren’t charging him under the
Occupations Code.
And when you read the statute, Your Honor, it does not say
this is the exclusive criminal penalties for this offense.
At trial, Tommy Lee Roberts testified that he owned a 1993 Oldsmobile
that his son had left on the grassy shoulder of the westbound side of Interstate
30 near Loop 820 on January 25, 2006. The next day, the car was gone.
Roberts did not call a tow company or give anyone permission to tow the car.
Roberts further testified that he did not know who Appellant was and that he had
never heard of Metroplex Towing. Fort Worth Police Department (FWPD)
records admitted at trial indicate that Metroplex Towing reported towing the
Oldsmobile on January 27, 2006, as a private property tow2 (also known as a
private property pull) from 7400 Sandy Lane.
Michael Todd Mulholland testified that he owned a 1992 Ford Explorer that
was stored on his family’s business lot at 1324 North Main Street in Fort Worth
and that was taken from that location sometime in late February 2006.
Mulholland further testified that he received a letter from Metroplex Towing in
2
See Tex. Occ. Code Ann. § 2308.002(8-a) (Vernon Supp. 2010).
3
March 2006 stating that it had towed or impounded the vehicle. He contacted
Metroplex Towing and spoke with Appellant. Mulholland stated that he did not
give Metroplex Towing or Appellant permission to tow the vehicle, nor had he
seen Appellant take the vehicle. FWPD records indicate that Metroplex Towing
reported towing the vehicle on February 5, 2006, as a private property pull from
1324 N. Main. Mulholland’s pull location was the only location uncontroverted by
any of the evidence.
Stacey Sanders testified that she owned a 1992 Dodge van that she left on
the grass on Interstate 35 by the Sycamore School Road exit on May 9, 2006.
FWPD records indicate that the Dodge van was reported towed by “Jorge” with
Metroplex Towing on May 12, 2006, as a private property pull from 730
Northwest 28th Street. Sanders testified that she did not leave the vehicle on
28th Street and that when she contacted Metroplex Towing, she spoke with
“George.”
Sanders provided an affidavit to Detective May Whitlock of the FWPD,
stating that when Sanders drove past the Dodge van during the two days after
she left it, it was still on the grass off Interstate 35 South. On the third day, a
Thursday afternoon, May 11, 2006, the Dodge van was no longer in that location.
On either Friday afternoon, May 12, 2006, or Saturday, May 13, 2006, Sanders
was informed by FWPD that Metroplex Towing had towed the Dodge van from
28th Street. Sanders phoned Metroplex Towing and spoke to “George,” who told
her that the van had been towed from in front of a car lot on 28th Street. A letter
4
from Metroplex Towing to Sanders stated that the Dodge had been impounded
on May 11, 2006.
Laquita Stephenson testified that she owned a 1990 Ford Thunderbird that
she had left on Interstate 30 between Interstate 35 and the Henderson Street exit
on March 4, 2006. The next day, when her husband went to get the car, it was
gone. Stephenson further testified that she had never seen or spoken with
Appellant. FWPD records indicate that the Thunderbird was reported towed by
“George” with Metroplex Towing on March 4, 2006, as a private property pull
from 1015 N. Henderson. A letter from Metroplex Towing to the previous owner
stated that the Ford was impounded on March 4, 2006.
Nancy Franklin testified that she owned a 1998 Saturn that she had
purchased for her grandson’s use and that he reported the car stolen on January
14, 2006. The grandson told the police that he believed that a woman staying
with him had taken the car and that the keys were taken from his apartment. A
letter from Metroplex Towing to Franklin states that the Saturn was received on
January 18, 2006. Metroplex Towing’s invoice dated January 18, 2006, and
bearing the name “N.M. Franklin” at the top, indicates that the Saturn was picked
up as a private property pull at Marine Creek Parkway and Loop 820. But FWPD
records indicate that the Saturn was reported towed by Metroplex Towing on
January 18, 2006, as a private property pull from 729 Northwest 28th Street. No
evidence explained where the woman who had originally taken the car had left it.
5
Franklin testified that she dealt with a man at Metroplex Towing, that
Appellant “look[ed] familiar,” and that she believed that Appellant was the man
she dealt with that day. She later testified that she never saw Appellant or a tow
truck take the vehicle. Franklin paid $365 to Metroplex Towing on January 26,
2006, to recover the Saturn. Franklin further testified that she received both the
towing invoice and the payment receipt on the same day.
Detective Whitlock contacted the towing company and spoke with
Appellant, Appellant met her at the company so that she could review the
company’s records, and Appellant released Sanders’s van to Detective Whitlock.
She testified that Elias Wehbe was the owner of Metroplex Towing.
Gerald Chandler of the FWPD testified that Appellant applied for the
nonconsent towing permit on behalf of Metroplex Towing on August 2, 2006,
after the tows at issue occurred. Because Metroplex Towing did not have a valid
permit, the FWPD would not have called Metroplex Towing to perform the tows at
issue.
Through Chandler, the State proved various violations of the municipal law
governing towing within the City of Fort Worth and therefore, arguably, the towing
statutes (collectively, the towing law).3 The State’s position was that violations of
3
See generally Fort Worth, Tex., Part II–Code ch. 34, art. V (1986)
(providing ordinances governing towing); Tex. Occ. Code Ann. § 2308.505
(providing that a violation of an ordinance, resolution, order, rule, or regulation of
a political subdivision adopted under section 2308.201 and other statutes for
which the political subdivision does not prescribe the penalty is also a violation of
the towing statute); id. § 2308.201(a), (c) (allowing political subdivisions to
6
the towing law could nevertheless be prosecuted as thefts. Appellant argued that
the punishment set out in the towing law was the exclusive remedy for violations
of the code, and that merely proving violations of the code did not prove theft.
II. Analysis
Towing regulations are a mishmash of federal, state, and municipal law. 4
In addition to the unwieldy nature of the towing law, this case is a difficult case
because, as the trial court pointed out, the essence of a nonconsent tow provided
for by the towing law is that the owner did not give his or her effective consent for
the tow,5 but lack of consent is also an element of theft.6 On the other hand, a
person cannot legitimize a vehicle theft by using a tow truck to perpetrate the
theft.
The State appears to argue that, because nothing in the towing law states
that the penalties for violations of the towing law are the exclusive penalties for
improper towing, the State may choose to prosecute a person for theft who
violates the towing statute. We disagree. A mere violation of the towing statute
regulate tow truck operation to extent allowed by federal law (except for
restricting lighting equipment) and to require registration of tow trucks performing
nonconsent tows).
4
See generally A.J.’s Wrecker Serv. of Dallas, Inc. v. Salazar, 165 S.W.3d
444 (Tex. App.––Dallas 2005, pet. denied).
5
Tex. Occ. Code. Ann. § 2308.002(3), (6) (defining consent and
nonconsent tows).
6
Tex. Penal Code Ann. § 31.03(b)(2) (Vernon Supp. 2010).
7
is not necessarily a theft. To the extent that the State argues that it has
unfettered discretion to prosecute a towing violation as theft, we hold the State
does not. But we recognize that a theft may be accomplished by someone
employed by a towing company; that is, towing companies and those who
operate them are not immunized from theft prosecution.
A. Jurisdiction
Appellant does not complain on appeal that the trial court erred in denying
his motion to quash the indictment. Rather, he argues in his first point that the
trial court had no jurisdiction to hear this case because
[t]he indictment alleged incidents that were governed by Texas
Occupations Code that sets out a specific jurisdiction and remedy for
any violations to be municipal court, justice of the peace courts, or
civil district court[,] not a criminal district court. The specific statute
should govern over the general Penal Code Statute.
Appellant essentially argues that the towing law is in pari materia with the theft
statute and, because the towing law is specifically directed at the actions of
towing companies, the towing law controls over the theft statute. Consequently,
Appellant argues, the district court lacked jurisdiction to hear the case, which
should have properly been tried in municipal court, justice court, or civil district
court.
The Texas Court of Criminal Appeals has explained the doctrine of in pari
materia:
The rule of in pari materia is nothing more than a principle of
statutory interpretation, a means of d[i]vining . . . and giving full effect
to legislative intent. Two statutes that are in pari materia are to be
8
construed together, each enactment in reference to the other, as
though they were part of one and the same law. Any conflict
between their provisions will be harmonized, if possible, and effect
will be given to all the provisions of each act if they can be made to
stand together and have concurrent efficacy. . . . Furthermore:
General and special acts may be in pari materia. If so, they should
be construed together. Where one statute deals with a subject in
general terms, and another deals with a part of the same subject in a
more detailed way, the two should be harmonized if possible; but if
there is any conflict, the latter will prevail, regardless of whether it
was passed prior to the general statute, unless it appears that the
legislature intended to make the general act controlling.7
But the court also explained,
Similarity of purpose or object is the most important factor in
assessing whether two provisions are in pari materia. The two
provisions must have been enacted with the same purpose in mind
in order for the doctrine to apply. They must be “closely enough
related to justify interpreting one in the light of the other.”8
Section 31.03 of the penal code provides,
(a) A person commits [the offense of theft] if he unlawfully
appropriates property with intent to deprive the owner of property.
(b) Appropriation of property is unlawful if:
(1) it is without the owner’s effective consent;
(2) the property is stolen and the actor appropriates the
property knowing it was stolen by another; or
(3) property in the custody of any law enforcement
agency was explicitly represented by any law enforcement
7
Burke v. State, 28 S.W.3d 545, 546–47 (Tex. Crim. App. 2000) (internal
quotation marks omitted).
8
Id. at 547 (citations omitted).
9
agent to the actor as being stolen and the actor appropriates
the property believing it was stolen by another.9
Section 31.01(2) provides,
“Deprive” means:
(A) to withhold property from the owner permanently or for so
extended a period of time that a major portion of the value or
enjoyment of the property is lost to the owner;
(B) to restore property only upon payment of reward or other
compensation; or
(C) to dispose of property in a manner that makes recovery of
the property by the owner unlikely.10
At the time of the events alleged in the indictment in this case, the statutes
regulating towing companies were in chapter 684 of the transportation code, but
effective September 1, 2007, the statutes were relocated to the occupations code
and renumbered 2308.401 thru 2308.407.11 Section 684.084 of the
transportation code provides that intentional, knowing, or reckless violation of the
towing statutes is subject to civil penalties.12 Specifically, a person who commits
a violation is “liable to the owner or operator of the vehicle that is the subject of
9
Tex. Penal Code Ann. § 31.03(a), (b).
10
Id. § 31.01(2).
11
See Tex. Occ. Code Ann. §§ 2308.401–.407 (containing former sections
684.081 thru .087 of the transportation code).
12
Act effective Sept. 1, 1995, 74th Leg., R.S., ch. 165, § 1, 1995 Tex. Gen.
Laws 1025, 1800–01, repealed by Act effective Sept. 1, 2007, 80th Leg., R.S.,
ch. 1046, § 2.06, 2007 Tex. Gen. Laws 3602, 3619 (transferring and
renumbering statutes), amended by Act effective Sept. 1, 2009, 81st Leg., R.S.,
ch. 845, §§ 18–19, 2009 Tex. Gen. Laws 2092, 2096 (current version at Tex.
Occ. Code Ann. § 2308.404).
10
the violation for $300 plus three times the amount of fees assessed in the
vehicle’s removal, towing, or storage” and “the prevailing party is entitled to
recover reasonable attorney’s fees.”13
But confusingly, section 684.085 provides, “A violation of this chapter is a
misdemeanor punishable by a fine of not less than $500 or more than $1,500.”14
That is, the towing statutes in effect at the time of this offense provided for both a
civil and a criminal penalty, but they did not permit incarceration as a penalty.15
Similarly, the towing ordinances provide that any violations of chapter 34
are punishable by a maximum fine of $500.16 That the Texas statutes and Fort
13
Id.
14
Act effective Sept. 1, 2005, 79th Leg., R.S., ch. 1197, § 8, 2005 Tex.
Gen. Laws 3916, 3918, repealed by Act effective Sept. 1, 2007, 80th Leg., R.S.,
ch. 1046, § 2.06, 2007 Tex. Gen. Laws 3602, 3619 (transferring and
renumbering statutes), amended by Act effective Sept. 1, 2009, 81st Leg., R.S.,
ch. 1310, § 13, 2009 Tex. Gen. Laws 4113, 4117 (current version at Tex. Occ.
Code Ann. § 2308.405).
15
See id.; see also Act effective Sept. 1, 1995, 74th Leg., R.S., ch. 165, §
1, 1995 Tex. Gen. Laws 1025, 1800–01, repealed by Act effective Sept. 1, 2007,
80th Leg., R.S., ch. 1046, § 2.06, 2007 Tex. Gen. Laws 3602, 3619 (transferring
and renumbering statutes), amended by Act effective Sept. 1, 2009, 81st Leg.,
R.S., ch. 845, §§ 18–19, 2009 Tex. Gen. Laws 2092, 2096 (current version at
Tex. Occ. Code Ann. § 2308.404). Contra Tex. Occ. Code Ann. § 2308.405
(providing that a knowing or intentional violation of the towing statutes is a Class
B misdemeanor); see Tex. Penal Code Ann. 12.22 (Vernon 2003) (providing that
punishment for a class B misdemeanor may include confinement in jail for up to
180 days).
16
See generally Fort Worth, Tex., Part II–Code ch. 34, art. V, § 34-192
(1986).
11
Worth municipal code are in pari materia is of no moment. The Supreme Court
of the United States has explained,
Federal preemption prescriptions relating to motor carriers . . .
specifically save to States “safety regulatory authority . . . with
respect to motor vehicles.” This case presents the question whether
the state power . . . may be delegated to municipalities, permitting
them to exercise safety regulatory authority over local tow-truck
operations.
The federal legislation preempts provisions by “a State (or)
political subdivision of a State . . . related to a price, route, or service
of any motor carrier . . . with respect to the transportation of
property.” As an exception to this general rule, Congress provided
that the preemption directive “shall not restrict the safety regulatory
authority of a State with respect to motor vehicles.” [The] statement
of the general rule explicitly includes “State[s]” and their “political
subdivision[s].” The exception for safety regulation, however,
specifies only “State[s]” and does not mention “political
subdivision[s].”
We hold that [the statute] does not bar a State from delegating
to municipalities and other local units the State’s authority to
establish safety regulations governing motor carriers of property,
including tow trucks. A locality . . . is a “political subdivision” of the
State. Ordinarily, a political subdivision may exercise whatever
portion of state power the State, under its own constitution and laws,
chooses to delegate to the subdivision. Absent a clear statement to
the contrary, Congress’ reference to the “regulatory authority of a
State” should be read to preserve, not preempt, the traditional
prerogative of the States to delegate their authority to their
constituent parts.17
Because the towing law’s purpose is economic regulation, whereas the
purpose of the penal code is “to insure the public safety,”18 we cannot say that
17
City of Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424,
428–29, 122 S. Ct. 2226, 2230 (2002) (citations omitted).
18
Tex. Penal Code Ann. § 1.02.
12
the towing law in effect when the tows at issue here occurred was in pari materia
with the theft statute.19 The trial court understood the positions of the parties and
the subtle distinctions of the law and properly applied the law, and this court has
jurisdiction to consider this appeal. We overrule Appellant’s first point.
B. Sufficiency of the Evidence
In his second point, Appellant argues that the evidence presented with
respect to Count One, Paragraph One of the indictment, the allegation upon
which the trial court convicted him, never identified him as the actor and that,
consequently, this court should “vacate the conviction.”
The sufficiency of the evidence in a criminal case is not determined by a
no-evidence standard.20 Therefore, in our due-process review of the sufficiency
of the evidence to support a conviction, we view all of the evidence in the light
most favorable to the prosecution to determine whether any rational trier of fact
could have found the essential elements of the crime beyond a reasonable
doubt.21
This standard gives full play to the responsibility of the trier of fact to
19
Burke, 28 S.W.3d at 547.
20
Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1989), overruled
on other grounds by Geesa v. State, 820 S.W.2d 154, 161 (Tex. Crim. App.
1991), overruled on other grounds by Paulson v. State, 28 S.W.3d 570, 571 (Tex.
Crim. App. 2000).
21
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
13
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.22 The trier of fact is the sole judge
of the weight and credibility of the evidence.23 Thus, when performing an
evidentiary sufficiency review, we may not re-evaluate the weight and credibility
of the evidence and substitute our judgment for that of the factfinder.24 Instead,
we Adetermine 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.”25 We must presume that the factfinder resolved any
conflicting inferences in favor of the prosecution and defer to that resolution.26
22
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778.
23
See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Brown v.
State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075
(2009).
24
Will. v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
25
Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007).
26
Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778.
14
The standard of review is the same for direct and circumstantial evidence
cases; circumstantial evidence is as probative as direct evidence in establishing
the guilt of an actor.27
Appellant is correct that no one testified that he or she saw him personally
tow any vehicle in question. But the State correctly argues that it is not required
to present evidence that Appellant stole every piece of property alleged in the
indictment, so long as the State presents sufficient evidence to satisfy the
aggregate thefts’ minimum value of $1,500.28 The effect of the failure of proof as
to any single allegation on any restitution order is not before us.
Appellant acted on behalf of Metroplex Towing in obtaining appropriate
certificates and inspections after charges were filed. Appellant dealt with the
police while they investigated the alleged thefts, answering the telephone for the
business, agreeing to meet the police officers at the business, opening the door
for them, and providing them with a license issued by the Texas Department of
Transportation and other records they had requested. These facts are evidence
that Appellant was at least aware of the paperwork Metroplex had provided to the
police and of the company’s recognition that at least one pull was improper.
These facts are also evidence that Appellant was at least one “George” who
worked at Metroplex.
27
Clayton, 235 S.W.3d at 778; Hooper, 214 S.W.3d at 13.
28
Dickens v. State, 981 S.W.2d 186, 188 n.4 (Tex. Crim. App. 1998);
Lehman v. State, 792 S.W.2d 82, 84 (Tex. Crim. App. 1990).
15
Police records also show that Metroplex Towing reported that it had towed
Michael Mulholland’s 1992 Ford Explorer from the address of the family business
where he kept it. The vehicle was worth $1,000. A woman at Metroplex
answered the telephone when Mulholland called, and she admitted that
Metroplex had taken the vehicle and that it was a mistake. Nevertheless,
Appellant refused to release Mulholland’s vehicle until Mulholland paid the fee
that Appellant demanded. Not all improper tows will subject agents of a towing
company to prosecution for theft. But under the specific facts of this case, the
company’s knowledge that it had towed Mulholland’s vehicle from Mulholland’s
own property at no one’s request, coupled with Appellant’s refusal to return the
vehicle without payment, is evidence that Appellant was guilty of theft by
depriving Mulholland of his vehicle under section 31.01(2)(b).29
Roberts testified that his son was driving the Oldsmobile car when it blew a
gasket, so he decided to leave the car on the side of Interstate 30 for a few days
because he assumed that the City of Fort Worth would eventually tow it away.
Roberts estimated that the car was worth $1,200 to $1,300 in the condition that it
was in when left on the side of the road. When he realized the car was no longer
on the side of the road, Roberts assumed that the city had towed it, but he made
no effort to locate the car. After Detective Whitlock contacted him, Roberts made
no effort to get his car back but decided to wait until the court “proceeding.”
29
See Tex. Penal Code Ann. §§ 31.01(2)(b), 31.03(a).
16
Appellant does not argue that the car was abandoned property but relies on his
position that any penalty for an improper tow is limited to the penalty set out in
the towing law, a position that we have already rejected.
Detective Whitlock testified that the address Metroplex listed as the
location from which the company towed Roberts’s car, 7400 Sandy Lane, does
not exist. The trier of fact reasonably could have concluded that Metroplex
misrepresented the address because the company knowingly and intentionally
towed the car from the side of the road where Roberts’s son had left it, knowing
the tow was unlawful. There was no evidence that Appellant or anyone else from
Metroplex demanded money for the car’s return because Roberts never
contacted Metroplex. The car, however, was not returned to Roberts by the date
of trial. Although the car, based on the evidence, was probably appropriated with
intent to keep it until the owner paid to have it released, in reality Metroplex
exhibited an intent permanently to deprive Roberts of the car because at the time
of trial, the car had not yet been returned to him. We therefore hold that the
evidence is sufficient to support the theft of the Oldsmobile.
The evidence was insufficient to support the remaining individual thefts.
Police records show that “Jorge” at Metroplex Towing had pulled Stacey
Sanders’s vehicle worth $1,000. Sanders dealt with “George” at Metroplex
Towing, and “George” demanded money before he would return her van. There
was evidence of the location at which complainants Sanders and Stephenson
last saw their vehicle. There was no evidence that the vehicles were pulled from
17
any location other than the locations reported by Metroplex as private property
pulls.
Stephenson never requested the return of her vehicle because the notice
went to the previous owner, whose name appeared on the title. But the evidence
also shows that the address from which Stephenson’s car was reported to have
been towed was an actual address, belonging to a woman whose son was an
acquaintance of Appellant. There is no evidence that the woman or her son did
not request the tow from her property, and there is no evidence that the car was
not towed from the property listed in the report. Nor is there any evidence to
explain who actually removed the car from the side of the road where it was left.
The same is true of the remaining vehicles.
Finally, while the Metroplex invoice and FWPD records provide different
addresses for the site from which Franklin’s car was towed, there was evidence
that another person had stolen the car and no evidence regarding where she left
it. There was no evidence that Appellant was involved in towing the car.
The trial court determined that Appellant was not credible, and that was the
basis for the trial court’s conclusion that Appellant was guilty of the remaining
thefts alleged in the indictment. The record supports a suspicion that Appellant
was complicit in thefts of the vehicles, but, except as to Mulholland’s and
Roberts’s vehicles, the evidence is not sufficient to support a verdict of guilt
beyond a reasonable doubt.
18
As the State argues, however, the State had only to prove theft of vehicles
worth at least $1,500. The evidence shows that the combined value of
Mulholland’s and Roberts’s vehicles was over that amount. Consequently, under
the Jackson standard, the evidence is sufficient to support Appellant’s conviction
for theft of property of a value of at least $1,500 as alleged in the indictment. We
do not hold that proof of violation of the towing law may always be punished as a
theft, but the unique facts of this case support the felony theft conviction. With
this caveat, we affirm the trial court’s judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
GARDNER and WALKER, JJ. concur without opinion.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: May 5, 2011
19