Syed Amir Kidwai v. State

                                   NUMBER 13-99-403-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI B EDINBURG

SYED AMIR KIDWAI,                                                             Appellant,

                                                   v.

THE STATE OF TEXAS,                                                          Appellee.

                        On appeal from the 209th District Court

                                   of Harris County, Texas.

                                   O P I N I O N

         Before Chief Justice Valdez and Justices Rodriguez and Baird^[1]

                                   Opinion by Justice Baird

Appellant was charged by indictment with the offense of theft.  A jury convicted appellant of the charged offense.  The trial judge assessed punishment at two years confinement in a state jail facility, probated for three years, and a fine of $500. Appellant raises six points of error. We affirm.

I.  Sufficiency Challenges.

Points of error one and two contend the evidence is legally and factually insufficient to sustain the jury=s verdict, respectively.

A.  Factual Summary.

Sheryl Anderson was a peace officer working undercover with the Houston Police Department.  In that capacity, she often dealt with an informant, Senaka Rivers.  As a result of information received from Rivers, Anderson set up an undercover operation wherein she and Rivers met with Raul Kahn who wanted to purchase several stolen Compaq laptop computers.  Appellant was not present at this meeting.  Leland Dean, a security officer with Compaq, later provided those computers to Anderson.

Anderson was wired for sound the following week when she and Rivers returned to Kahn=s place of employment, Kashmere Laboratory, with the computers furnished by Dean.  Kahn asked to see the computers, and the three walked to Anderson=s car where she opened the trunk where the computers were stored and Kahn examined them.  During this examination, Anderson told Kahn the computers were stolen.  Each of the three carried a computer into the building and placed them on a table.  Kahn left the room, and returned with appellant who began to examine the computers.  At this time, Anderson whispered to appellant that the computers were stolen.  Anderson, Rivers and appellant left the building; Anderson again told appellant that the computers were stolen.  They drove in appellant=s vehicle to a nearby bank to obtain $900, the amount previously agreed upon by Anderson and Kahn to purchase the three computers for $300 each.  Upon their return, appellant handed Anderson a bank envelope which contained $900 in cash. Appellant was then arrested for the instant offense.  An audio recording of this entire transaction was introduced into evidence and played to the jury. 

Leland Dean, a theft investigator at Compaq testified that he worked frequently on reverse sting operations with peace officers.  Dean provided the computers used in the instant case, Presario 1260's, and testified the fair market value for each computer was $1,499 to $1,799. Therefore, the low end of their value on the date of the alleged offense was approximately $4,500.  On cross-examination, Dean testified that a Compaq laptop could be purchased for as low as $900.  At that price, the value of the three computers would be $2,700. 

Appellant testified he was the owner of Kashmere Laboratory and had been since 1980.  He had fifty-two employees, one of whom was Kahn who worked as a lab technician.  Appellant used twenty-one computers in his business.  The first time he met Anderson and Rivers was on the date of the alleged offense. Anderson said she worked at Compaq and that Rivers was her boyfriend.  Rivers used the alias of White.  Kahn requested a $200 loan from appellant to buy a computer.  Appellant, who was also interested in purchasing a computer, examined the computers to see if their features were what he needed. Appellant decided to make a $700 down payment on a computer which would be delivered at a later date. 

Three exhibits were admitted into evidence:  a check written by appellant with Acomputer payment@ on the memo line; the tab of a checkbook stating Acomputer person White, computer, social security number, XXX-XX-XXXX, $900@; and, a microcopy of the check which showed it had been processed by the bank.  Appellant stated he did this to keep a record for tax purposes.  He testified the check was for his $700 down payment and the $200 loan to Kahn.  These two amounts total $900, the amount given to Anderson by appellant.  He further testified that he was never told that the computers were stolen. 

B.  Standards of Appellate Review.

Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction.  Jackson v. Virginia, 443 U.S. 307, 315‑16 (1979). The appellate standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Id. at 320.  The evidence is examined in the light most favorable to the fact-finder.  Id.  Sufficiency of the evidence is measured by the hypothetically correct jury charge, which accurately sets out the law, is authorized by the indictment, and does not unnecessarily increase the State's burden of proof.  Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Cano v. State, 3 S.W.3d 99, 105 (Tex. App.BCorpus Christi 1999, pet. ref'd).  A successful legal sufficiency challenge will result in rendition of an acquittal by the reviewing court.  Tibbs v. Florida, 457 U.S. 31, 41‑42 (1982).

We employ a different standard of appellate review when determining whether the evidence is factual sufficient to support the verdict.  First, we assume that the evidence is legally sufficient under the Jackson standard.  Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996).  We then consider all of the record evidence, not just the evidence which supports the verdict.  Id.  We review the evidence weighed by the jury which tends to prove the existence of the fact in dispute, and compare it to the evidence which tends to disprove that fact. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997).  We may disagree with the jury's determination, even if probative evidence exists which supports the verdict. Clewis, 922 S.W.2d at 133.  However, our evaluation should not substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony.  Santellan, 939 S.W.2d at 164.  Where there is conflicting evidence, the jury's verdict on such matters is generally regarded as conclusive.  Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App.BEl Paso 1996, pet. ref'd).  We will reverse only when the verdict is against the great weight of the evidence presented at trial so as to be clearly wrong and unjust.  Clewis, 922 S.W.2d at 134.

                                                     C.  Analysis.

Appellant first argues there is no evidence from which a rationale jury could find he appropriated three computers from Anderson.  App. br. pg. 8 (emphasis in original). While there is no evidence to prove that appellant, alone, appropriated the computers, there is evidence that Kahn, Anderson and Rivers took the computers to Kahn=s lab. The computers remained there while appellant, Anderson, and Rivers traveled to the bank to obtain the funds.  Therefore, under the law of parties, a rational jury could have found appellant appropriated the computers.  This is true even though the law of parties was not included in the court=s charge to the jury.  Blanco v. State, 962 S.W.2d 46, 46-47 (Tex. Crim. App. 1998); Swartz v. State, 61 S.W.3d 781, 785 (Tex. App.BCorpus Christi 2001, pet. ref=d); Howard v. State, 966 S.W.2d 821, 824 (Tex. App.BAustin 1998, pet. ref'd).

Appellant=s second argument is premised on the first; specifically, appellant argues that since the evidence is insufficient to prove appropriation of three computers, the evidence is insufficient to establish the value of one computer was more than $1,500 when offset by the $900 paid by appellant.  Tex. Pen. Code Ann. '' 31.03(a)(3), 31.03 (e)(4)(A), & 31.08(d) (Vernon 1994 & Supp. 2002).  However, because we have rejected the first argument, appellant=s argument must also fail.  When viewed in the light most favorable to the verdict, the evidence is sufficient to prove the value of the three computers was greater than $1,500.

Finally, when we review the evidence not in the light most favorable to the verdict, we see a conflict between the evidence offered by the State, primarily through the testimony of Anderson, and the evidence offered by appellant, primarily through his own testimony. By its verdict, the jury chose to give greater weight and credibility to the State=s case.  While we have the authority to disagree with this determination, we should not do so if our evaluation would not substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony.  Santellan, 939 S.W.2d at 164.  As noted above, in these situations, the jury's verdict is generally regarded as conclusive.  Van Zandt, 932 S.W.2d at 96.  After our careful review of the record evidence in a neutral light, we are unable to hold that the jury=s verdict is against the great weight of the evidence presented at trial so as to be clearly wrong and unjust.  Clewis, 922 S.W.2d at 134.

For these reasons, the first and second points of error are overruled.

II.  Motion to Quash Indictment.

The indictment alleged, in pertinent part, that appellant appropriated the computers Awith the intent to deprive@ Anderson of the property.  Prior to trial, appellant moved to quash the indictment, arguing it was defective in failing to allege which of the statutory meanings of deprive the State would rely upon.  The trial judge overruled the motion.  That ruling forms the basis of the third point of error.

An accused in a criminal case is guaranteed the right to demand the nature and cause of the action against him. DeVaughn v. State, 749 S.W.2d 62, 67 (Tex. Crim. App. 1988).  The charging instrument itself must convey adequate notice from which the accused may prepare his defense.  Id. As a general rule, a charging instrument which tracks the language of a criminal statute possesses sufficient specificity to provide a defendant with notice of a charged offense.  State v. Edmond, 933 S.W.2d 120, 128 (Tex. Crim. App. 1996); DeVaughn, 749 S.W.2d at 67.  However, there is one well recognized exception to this general rule: when the statute possesses statutorily‑defined, alternative methods of committing an offense, then upon timely request, a defendant is entitled to an allegation of which statutory method the State intends to prove. Edmond, 933 S.W.2d at 129-30 (and cases cited therein).

The penal code defines deprive as:  (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.  Tex. Pen. Code Ann. ' 31.01(2) (Vernon Supp. 2002).  Because deprive has three statutorily‑defined alternative methods, the trial judge abused his discretion in overruling appellant=s motion to quash the indictment.  Olurebi v. State, 870 S.W.2d 58, 62 (Tex. Crim. App. 1994); Hoover v. State, 707 S.W.2d 144, 149 (Tex. App.BHouston [14th Dist.] 1986, on reconsideration, 736 S.W.2d 158 (Tex. App.BHouston [14th Dist.] 1987, pet. ref'd).

A defect of form does not render an indictment insufficient unless the defect "prejudice[s] the substantial rights of the defendant."  Tex. Code Crim. Proc. Ann. art. 21.19 (Vernon 1989).  Article 21.19 has been interpreted so that when the right to adequate notice of the charges from the face of the indictment is violated, that right is substantial only if the particular defect of notice harmed the defendant.  Adams v. State, 707 S.W.2d 900, 903 (Tex. Crim. App. 1986).  This inquiry is a question of law.  Janecka v. State, 823 S.W.2d 232, 236 (Tex. Crim. App. 1990) (quoting Adams, 707 S.W.2d at 903).  The State argues there was no harm to appellant.  We are constrained to agree.  There is no showing from the record that appellant would restore the property only upon payment of reward or other compensation.  Tex. Pen. Code Ann. ' 31.01(2)(B).  And there is no showing appellant would have disposed of the property in a manner to make recovery unlikely.  Id. at ' 31.01(2)(C).  Therefore, the only definition applicable to the instant case was section 31.01(2)(A).  Moreover, this was the only definition provided in the jury charge. Accordingly, we hold appellant had the ability to prepare a defense and was not impacted by the lack of notice in the indictment.  Hoover v. State, 736 S.W.2d 158, 159 (Tex. App.BHouston [14th Dist.] 1987, pet. ref'd).  The third point of error is overruled.

III.  Failure to Explain Unlawful Appropriation.

The fourth point of error contends the trial judge committed egregious error by failing to explain when appropriation of property is unlawful.  The abstract portion of the charge defined appropriate under section 31.01(4)(B) of the Penal Code.^[2]  However, the charge did not provide a definition of unlawful appropriation. Section 31.03(b) of the Penal Code provides:

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 agent to the actor as being stolen and the actor appropriates the property believing it was stolen by another.

Tex. Pen. Code Ann. ' 31.03(b). The application paragraph authorized the jury to convict upon a finding that appellant did Aunlawfully, appropriate, by acquiring or otherwise exercising control over property, namely three computers. . . .@

In reviewing jury charge error, we undertake a two‑step process.  Hutch v. State, 922 S.W.2d 166, 170‑71 (Tex. Crim. App.1996). First, we must determine whether error exists in the charge.  Id. at 171.  Second, we review the record to determine whether sufficient harm was caused by the error to require reversal of the conviction.  Id.  In the instant case, we find error exists in the failure to include the definition of unlawful appropriation of section 31.03(b)(3).  Since there was no objection to this error, we must determine whether appellant suffered egregious harm.  Id.

In determining whether error is egregious, we look at the actual degree of harm, in light of (1) the entire jury charge, (2) the state of the evidence, (3) the argument of counsel, and (4) any other relevant information revealed by the trial record as a whole. Id.  As the Hutch court stated:  "[E]rrors which result in egregious harm are those which affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defense theory." Id. (quoting Almanza v. State, 686 S.W.2d 157, 172 (Tex. Crim. App. 1985) (op. on reh'g)) (internal quotation marks deleted).  As noted above, the application paragraph required the jury to find appellant unlawfully appropriated the property before convicting.  The state of the evidence has been recounted in part I of this opinion and need not be restated here.  The arguments of counsel are instructive on this issue.  Appellant argued as follows:

One of the things that the Judge instructs you as an element is appropriate.  It means to acquire, or otherwise exercise control [over] the property, other than real property.  In this case, you have, the State is saying, that [appellant] took control over three computers.  Juxtapose that, if you will, to the evidence.  The evidence that we heard was that three computers remained in the area from Mr. Kahn.  They were never taken, never touched, never taken by [appellant].  So, we know he didn=t appropriate them.  Under the law, if he didn=t appropriate them, you have to find him not guilty. That=s an element. 

Appellant also argued the evidence did not prove an intent to deprive of possession.  Finally, we are not aware of any other relevant information revealed by the trial record that should be included in this analysis.

When these four factors are considered, we hold the failure to include the appropriate definition of unlawful appropriation did not result in egregious harm.  We are convinced appellant=s defensive strategy rested on the theory that he did not appropriate or possess any of the computers.  Accordingly, the missing definition did not affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defense theory.  The fourth point of error is overruled.

IV. Effective Assistance of Counsel.

The fifth and sixth points of error contend trial counsel provided ineffective assistance in failing to request an instruction on the lesser offense of class A theft, and by not requesting an instruction pursuant to section 31.08(d) of the Penal Code, respectively.  The standard by which we review a claim of ineffective assistance of counsel was established in Strickland v. Washington, 466 U.S. 668, 684 (1984). Under this standard, the reviewing court must first determine whether trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms.  Id. at 687-88.  If counsel's performance fell below this standard, the reviewing court must decide whether there is a "reasonable probability" the result of the trial would have been different but for counsel's deficient performance.  Id. at 694.  A reasonable probability is a "probability sufficient to undermine confidence in the outcome."  Id.

We must begin with the threshold determination of whether trial counsel's conduct was, in fact, deficient. Cardenas v. State, 30 S.W.3d 384, 392 (Tex. Crim. App. 2000); Fuentes v. State, 991 S.W.2d 267, 272‑73 (Tex. Crim. App. 1999). Therefore, the question is whether appellant was entitled to the complained of missing instructions.  We answer this question in the affirmative.  There was some evidence that appellant, if guilty, was guilty only of the lesser offense.  Rousseau v. State, 855 S.W.2d 666, 672‑73 (Tex. Crim. App. 1993).  Additionally, there is evidence that appellant gave consideration to obtain one computer.  Tex. Pen. Code Ann. ' 31.08(d).

The fact that appellant would have been entitled to these instructions does not end our inquiry under Strickland=s first prong.  Even if the record reveals a valid objection, motion or request was available to trial counsel, the failure to undertake the complained of action may be attributable to sound trial strategy.  Strickland, 466 U.S. at 690.  This is true even in cases where counsel failed to request an instruction on a lesser included offense to which the defendant was entitled.  Lynn v. State, 860 S.W.2d 599, 603 (Tex. App.BCorpus Christi 1993, pet. ref'd).  Generally, the appellate record is not sufficient to rebut Strickland's presumption that the challenged action of trial counsel was the result of "sound trial strategy." Strickland, 466 U.S. at 689.^[3]  In light of this presumption, a substantial risk of failure accompanies a claim of ineffective assistance of counsel on direct appeal because the record is simply underdeveloped and cannot adequately reflect the failings of trial counsel.  Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App.1999).  When presented with such a record, appellate courts will not indulge in speculation to find counsel's performance deficient.  Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

In the instant case, the trial record does not reflect why trial counsel did not request these instructions.  Additionally, this issue was not developed at a motion for new trial hearing.  Thompson, 9 S.W.3d at 814.  In light of the record before us, to hold counsel was deficient would require speculation on our part.  Therefore, we are bound by Strickland=s presumption that the failure to request these instructions was attributable to sound trial strategy.  Strickland, 466 U.S. at 690.  The first prong of Strickland has not been satisfied.  Accordingly, the fifth and sixth points of error are overruled.

The judgment of the trial court is affirmed.

________________________

CHARLES F. BAIRD 

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 3rd day of July, 2002.       

---

^[1]Former Court of Criminal Appeals Judge Charles F. Baird assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. ' 74.003 (Vernon 1998).

^[2]  AAppropriate@ means to acquire or otherwise exercise control over property other than real property.  Tex. Pen. Code Ann. ' 31.01(4)(B).

^[3]  We have recognized exceptions to this presumption. Stone v. State, 17 S.W.3d 348, 350 (Tex. App.BCorpus Christi 2000, pet. ref'd).