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Opinion filed October 16, 2008
In The
Eleventh Court of Appeals
__________
No. 11-07-00037-CR
__________
JOE LAWRANCE HOWELL, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 238th District Court
Midland County, Texas
Trial Court Cause No. CR32198
M E M O R A N D U M O P I N I O N
The jury convicted Joe Lawrance Howell of felony theft by repetition, and the trial court sentenced him to five years confinement. We affirm.
I. Background Facts
Howell was indicted for theft by repetition. Tex. Penal Code Ann. ' 31.03(e)(4)(D) (Vernon Supp. 2008). The State alleged that he unlawfully acquired and exercised control over power tools worth less than $1,500 and that he had two prior theft convictions. The State also alleged for enhancement purposes that Howell had been previously convicted of delivery of a controlled substance and attempted burglary. The jury found Howell guilty as charged in the indictment. Howell pleaded true to the two enhancement paragraphs, and the trial court sentenced him to five years confinement.
II. Issues on Appeal
Howell challenges his conviction and sentence with four issues. Howell contends that the evidence was legally or factually insufficient to sustain his conviction, that trial counsel was constitutionally ineffective for not requesting an instruction on mistake of fact, and that the trial court=s sentence is void because it exceeds the maximum permissible punishment for his offense.
III. Analysis
A. Sufficiency of the Evidence.
Howell argues that the evidence is legally or, alternatively, factually insufficient to sustain his conviction because there was insufficient evidence of appropriation. Howell concedes that there is evidence he exercised some physical control over the power tools but denies that there is any evidence that he did so with the intent to deprive the owner of his property.
1. Standard of Review.
To determine if the evidence is legally sufficient, we review all of 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Jackson v. State, 17 S.W.3d 664, 667 (Tex. Crim. App. 2000). The factfinder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992). The factfinder may choose to believe or disbelieve all or any part of any witness=s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).
To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Id. at 414-15.
2. The Evidence.[1]
Ronald Keith Bush testified that on April 2, 2006, he drove his white, Ford F-250 pickup to Wal-Mart and went inside to shop. Bush=s pickup had a toolbox behind the cab. The toolbox was locked. When Bush came out of Wal-Mart, he saw Howell standing next to his pickup with a sander in each hand. Bush yelled at Howell, who threw the sanders back into his toolbox and shut the lid. Howell told Bush that he had not taken anything and that someone named ABob@ had told him that he could come to Wal-Mart and get a grinder out of his pickup. Bush told Howell that he was not Bob and that those were not grinders. Howell replied, AOkay@ and walked away. A third individual approached Bush and asked him if Howell had taken anything. According to this individual, Howell had also looked in the back of his pickup, a green Chevy S-10. The third individual then noticed that Howell was looking in the back of a third pickup.
Bush contacted the police. An officer spoke with Bush at the scene and obtained a description of Howell=s vehicle. This description was broadcast on the police radio, and a second officer saw and stopped Howell. The investigating officer interviewed Howell. He acknowledged being accused of stealing tools by someone at Wal-Mart but denied doing anything improper. Midland Police Detective Manuel Beltran later contacted Wal-Mart and obtained a copy of their parking lot videotape for April 2. On the video, Howell=s vehicle can be seen looping around in the parking lot before making a U-turn and parking near Bush=s pickup. Someone exited from the passenger=s side of Howell=s vehicle and walked to the front of the building. The individual walked out of the camera=s range but later returned to Howell=s vehicle before walking to a white pickup. He did something by the pickup=s toolbox, started to return toward the store, and was approached by a customer with a shopping cart. The two walked back to the white pickup, and then the individual started walking back to the store. Howell=s vehicle did a loop and headed to the south end of the parking lot.
Detective Beltran contacted Howell. Detective Beltran told Howell that charges would be filed and that the Wal-Mart video implicated him. Howell told Detective Beltran that he did not take anything from the toolbox and that everything was returned, but he never contended that he was in the toolbox because he mistakenly thought the pickup belonged to a friend. Howell agreed to come to the police department to speak with Detective Beltran over his lunch hour, but he failed to appear.
Howell did not testify, but a friend, Angela Sawyer, did. She testified that Howell had told her previously that a friend owed him money, transmission parts, and a grinder. On April 2, they drove to Wal-Mart to buy a package of cigarettes. Howell noticed Bush=s pickup and told her that it was his friend=s pickup. She parked near Bush=s pickup. Howell opened the toolbox and looked inside. When Bush approached, Howell closed the lid and apologized.
Howell contends that this evidence might support an attempted theft prosecution but not actual theft because there was no evidence of appropriation. AAppropriate@ means to acquire or otherwise exercise control over property other than real property. Tex. Penal Code Ann. ' 31.01(4)(B) (Vernon Supp. 2008). Appropriation occurs when one person unlawfully exercises control over property belonging to another. One 1985 Chevrolet v. State, 852 S.W.2d 932, 934 (Tex. 1993). In Freeman v. State, 707 S.W.2d 597, 605 (Tex. Crim. App. 1986), the court held that whether an appropriation has occurred is not determined by the mechanical rules that characterized common law larceny but by considering whether the accused exercised unauthorized control over the property.
The evidence is legally and factually sufficient to sustain Howell=s conviction. The jury saw the Wal-Mart parking lot video and heard evidence that Howell got two sanders out of a locked toolbox. The jury also heard that, when Bush confronted Howell, he offered an explanation that a factfinder could reasonably find implausible because Howell was seen looking in three pickups B two of which were substantially dissimilar B and because Howell did not repeat this explanation when confronted by Detective Beltran. Issues One and Two are overruled.
B. Ineffective Assistance.
Howell next argues that his trial counsel was constitutionally ineffective for not objecting to the jury charge because it did not contain a mistake-of-fact instruction. To determine whether trial counsel rendered ineffective assistance at trial, we must determine whether Howell has shown that counsel=s representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel=s errors. Strickland v. Washington, 466 U.S. 668, 687 (1984).
We need not address whether trial counsel erred because Howell has not shown that the missing instruction would have reasonably resulted in an acquittal. Howell argues that counsel=s failure to request a mistake-of-fact instruction effectively deprived him of his only defense. We disagree. Howell=s intent was fully developed and presented to the jury.
This court has previously recognized that, if the defense of mistake of fact is adequately developed during trial, the failure to request an instruction is not harmful. See Davis v. State, No. 11-02-00218-CR, 2003 WL 21469737, at *2-3 (Tex. App.CEastland June 26, 2003, no pet.). Not only was Howell=s defense developed, it was the only contested issue. Counsel raised the State=s obligation to prove intent and the possibility of a mistake during voir dire. Counsel called Sawyer as a witness. She testified that they parked near Bush=s pickup because Howell thought it belonged to a friend who owed him, that he had mentioned this debt one month previously, and that the incident with Bush was a mistake. During closing, counsel reminded the jury of the State=s obligation to prove intent and of the evidence that Howell approached Bush=s pickup because he mistakenly believed it belonged to someone else. Howell has not shown that an additional instruction would have probably resulted in a different result. Issue Three is overruled.
C. Sentence.
Howell=s indictment alleged that he had been previously convicted of theft in 1986 and 1999. The indictment also contained two enhancement allegations. The State alleged that Howell was convicted of felony delivery of a controlled substance in 1989 and felony attempted burglary of a building in 1993. Howell stipulated to the misdemeanor theft convictions and pleaded true to the enhancement paragraphs. The trial court stated at the punishment hearing that it understood Howell had been convicted of a state jail felony enhanced to a second degree felony. Both counsel agreed. Howell argues on appeal that it was error to elevate his offense beyond a state jail felony because one of the two felony convictions was for burglary.
Howell relies on Brown v. State, 14 S.W.3d 832 (Tex. App.CAustin 2000, pet. ref=d), for his improper-enhancement argument. In Brown, the defendant was found guilty of stealing meat, cheese, and beer worth $10.36. This would normally be a Class C misdemeanor, but Brown had two prior misdemeanor and three prior felony theft convictions, and his punishment was enhanced to a second degree felony. The Austin Court held that Brown=s convictions were all for theft and, therefore, that his conviction could not be enhanced beyond a state jail felony because the theft-by-repetition statute provides that Atheft of property having a value of less than $1,500 is a state jail felony if the defendant >has been previously convicted two or more times of any grade of theft.=@ 14 S.W.3d at 832. The court concluded that this language limited the maximum enhancement effect of prior theft convictions regardless of their number or degree. Id.
We agree with the court=s reasoning in Brown, but do not agree that it applies to this case. Howell=s felony conviction for delivery of a controlled substance is not a theft conviction, and Howell provides no reason why that conviction could not be used to enhance his sentence. Moreover, the Austin Court itself has held that burglary is not a theft offense for purposes of the theft-by-repetition statute. See Watson v. State, 923 S.W.2d 829, 834 (Tex. App.CAustin 1996, pet. ref=d). The trial court did not err by using Howell=s two prior felony convictions to enhance his punishment. Issue Four is overruled.
IV. Holding
The judgment of the trial court is affirmed.
RICK STRANGE
JUSTICE
October 16, 2008
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
[1]Howell=s brief refers us to his statements to the trial court during the punishment hearing explaining why he raised the lid on Bush=s toolbox. Our review is necessarily confined to the evidence presented to the jury. We may not, therefore, consider these statements.