NO. 12-06-00111-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
CODY WILL CRAIG, § APPEAL FROM THE
APPELLANT
V. § COUNTY COURT AT LAW #2
THE STATE OF TEXAS,
APPELLEE § HENDERSON COUNTY, TEXAS
MEMORANDUM OPINION ON REHEARING
Cody Will Craig filed a motion for rehearing, which is overruled. The court’s opinion of May 9, 2007 is hereby withdrawn, and the following opinion is substituted in its place.
Cody Will Craig appeals his conviction for theft of between fifty and five hundred dollars, for which he was sentenced to confinement for one hundred eighty days, probated for twelve months. In three issues, Appellant argues that (1) the trial court lacked jurisdiction to consider the matter, (2) the trial court erred in admitting evidence, and (3) the evidence was factually insufficient to support the trial court’s judgment. We affirm.
Background
On October 26, 2005, Appellant was charged by information with Class A Theft. Specifically, the information alleged that on or about April 29, 2005, Appellant appropriated “by acquiring or otherwise exercising control over property, to wit: money of the value of $500 or more but less than $1,500.00, from Friends of Purtis Creek, Inc., the owner thereof with intent to deprive the owner of the property.”
The Friends of Purtis Creek (“Friends”) is an organization formed to support Purtis Creek State Park and its campground located in Henderson County, Texas. Appellant was born on October 26, 1987. During the relevant time period, Appellant lived on park grounds with his parents, Gary and Sherry Craig, and his younger brother, Cole Craig. In addition to being park hosts, Gary Craig was president of the Friends group until March 2005. Sherry Craig was secretary of Friends until her death on February 25, 2005.
In its support of Purtis Creek State Park, Friends sought to raise money through membership dues, taking donations in exchange for making firewood available to park visitors, and in conjunction with events it organized. Mary Lou Hyde, the treasurer of Friends during the relevant time period, was required to have charge and custody of and to be responsible for all funds. Because Hyde had relocated to Mesquite, Texas, Gary Craig often permitted Appellant, who was also a Friends member and worked as a volunteer in the park office, to retrieve donations. In collecting the donations, a procedure was followed in which the Friends volunteer and a park employee would count the money collected and sign a generic receipt form, on which the source of the money was noted. The person collecting the money would also sign or initial the receipt form.
At trial, the State introduced several dated receipts that indicated the amounts collected and other information regarding the source of the funds collected and the identity of the person making the collection. The State further introduced bank statements from October 2004 through April 2005, which purported to indicate that the total amounts shown on the various receipts were not deposited in the Friends bank account.
Appellant testified on his own behalf and stated that he received the funds indicated by the receipts. Specifically, Appellant’s testimony reflects the following transactions:
• Appellant received $52.00 on October 16, 2004.
• Appellant received $164.00 on October 20, 2004.
• Appellant received $406.00 on October 30, 2004.
• Appellant received $281.00 on December 15, 2004.
• Appellant received $330.50 on either February 3, 2005 or February 13, 2005.
Appellant testified that on October 16 and 20, 2004 respectively, he took the funds he received on those days to the travel trailer where his family resided, at which time his mother took possession of the funds. Appellant further testified that on October 30, 2004 he took the funds he received that evening directly to Hyde, who was present at the Halloween party at Purtis Creek.1 Moreover, Appellant stated that he took the funds he received on December 15, 2004 and February 3, 2005 respectively to his home and gave them to his mother and father. Appellant denied that he appropriated any money or thing belonging to the park for his own purpose.
Gary Craig testified that he authorized Appellant to retrieve the Friends money from the park office. Gary Craig further testified that money was delivered to Hyde at the Halloween party on October 30, 2004. Gary Craig stated that Sherry Craig took three or four envelopes containing Friends donations to Hyde in February 2005. Gary Craig further stated that he and his wife always counted the money to make sure it matched the amount on the signed receipt, but that no written receipt ordinarily was made indicating Hyde’s taking possession of Friends funds. Gary Craig related that among the funds received in either October or November 2004 were two checks made out to Purtis Creek State Park instead of Friends, which were turned over to Justin Rhodes to cash.2 Gary Craig also testified that Hyde had neglected her duties as Friends treasurer and that he believed she had taken the money. At the time of trial, Hyde was also charged with theft and invoked her Fifth Amendment right to not testify.
Gary Craig also testified that the entirety of the money collected during the relevant time period was not ultimately deposited in the Friends bank account. The bank statements for the Friends account and the corresponding deposit slips admitted into evidence indicate the following:
• During October 2004, no deposits were made.
• During November 2004, five deposits were made. There is a corresponding deposit slip for each deposit listed in the statement. Each deposit slip is dated November 4, 2004. The statement lists the deposit date as November 5, 2004. The sum of the November 2004 deposits is $835.00.
• The first deposit is in the amount of $50.00 and contains the notation “FPC Donation.”
• The second deposit is in the amount of $55.00 and contains the notation “Pumpkin Donations.”
• The third deposit is in the amount of $163.00 and contains the notation “Gate receipts - Halloween.”
• The fourth deposit is in the amount of $210.00 and contains the notation “Halloween Donations.”
• The fifth deposit is in the amount of 357.00 and contains the notation “Wood.”
• During December 2004, no deposits were made.
• During January 2005, there was no account activity.3
• During February 2005, no deposits were made.
• During March 2005, no deposits were made.
• During April 2005, two deposits were made. There is a corresponding deposit slip for each deposit listed in the statement. The sum of the April 2005 deposits is $6,512.62.
• The first deposit is dated March 28, 2005 and is in the amount of $5,679.62. The statement lists the deposit date as March 29, 2005. There is no notation indicating the source of the funds deposited.
• The second deposit is dated March 30, 2005 and is in the amount of $833.00. The statement also lists the deposit date as March 30, 2005. There is no notation indicating the source of the funds deposited.
At the close of evidence, Appellant moved for a directed verdict, which was denied.4 The case was submitted to the jury on the lesser included offense of Class B theft.5 Ultimately, the jury found Appellant guilty of Class B theft. Following a bench trial on punishment, the trial court sentenced Appellant to confinement for one hundred eighty days, probated for twelve months. This appeal followed.
Jurisdiction
In his first issue, Appellant argues that the juvenile court had exclusive jurisdiction over the matter because the evidence indicated that, in the first two instances, Appellant received the funds allegedly stolen prior to his seventeenth birthday. Appellant further argues that since the State charged Appellant with Class A theft, which required consideration of the aggregate of the money allegedly appropriated, the juvenile court had exclusive jurisdiction notwithstanding evidence concerning instances of funds Appellant received after his seventeenth birthday.
A court of competent jurisdiction is one that has jurisdiction of the offense. Bonner v. State, 832 S.W.2d 134, 136 (Tex. App.–Amarillo 1992, pet. ref’d). In other words, it is one that has authority over the person, authority over the subject matter, i.e., the offense, and power to enter the particular judgment rendered. See State v. Hall, 794 S.W.2d 916, 919 (Tex. App.–Houston [1st Dist.] 1990), aff’d, 829 S.W.2d 184 (Tex. Crim. App. 1992).
The juvenile court has exclusive original jurisdiction over proceedings in all cases involving the delinquent conduct or conduct indicating a need for supervision engaged in by a person who was a “child” at the time the person engaged in the conduct. See Tex. Fam. Code Ann. § 51.04(a) (Vernon 2002). If the defendant in a criminal proceeding is a child who is charged with an offense other than perjury, a traffic offense, a misdemeanor punishable by fine only other than public intoxication, or a violation of a penal ordinance of a political subdivision, unless he has been transferred to criminal court under section 54.02 of the family code, the court exercising criminal jurisdiction shall transfer the case to the juvenile court. See Tex. Fam. Code Ann. § 51.08(a) (Vernon Supp. 2006). “Child” means a person who is (A) ten years of age or older and under seventeen years of age; or (B) seventeen years of age or older and under eighteen years of age, who is alleged or found to have engaged in delinquent conduct or conduct indicating a need for supervision as a result of acts committed before becoming seventeen years of age. Tex. Fam. Code Ann. § 51.02(2) (Vernon Supp. 2006).
In the case at hand, Appellant was charged with one count of Class A theft, which was alleged to have occurred on or about April 29, 2005. As set forth above, the State conceded that the wording of the information did not give Appellant notice that the State intended to rely on the aggregate amounts of various instances of alleged theft to satisfy the value element for Class A theft. As such, the case was submitted to the jury on the lesser included offense of Class B theft. As Appellant suggests, he received funds on October 16 and 20, 2004 while he was still sixteen years old. Yet the funds Appellant received on these dates were not the only receipts underlying the State’s allegations of theft. As the State notes in its brief, Appellant admitted receiving funds in excess of fifty dollars after he turned seventeen years old. Although Appellant contends that the State intended to charge him with aggregate theft, the State conceded its failure to so charge Appellant and submitted the case to the jury on Class B theft. Thus, the fact that there was evidence before the jury that Appellant received money before his seventeenth birthday did not deprive the trial court of jurisdiction because there was evidence of completed acts occurring subsequent to Appellant’s seventeenth birthday supporting his conviction for Class B theft.6 Therefore, we hold that the trial court had jurisdiction over the instances of alleged theft that occurred after Appellant’s seventeenth birthday. Appellant’s first issue is overruled.
Extraneous Bad Acts
In his second issue, Appellant argues that the trial court erred in admitting evidence concerning various instances of prior bad acts in violation of Texas Rule of Evidence 404(b). Specifically, Appellant argues that the trial court erroneously admitted evidence that (1) he was given $10.00 in membership dues by Mary Hilliard, a state employee who worked at the park and was, therefore, ineligible for membership, which he failed to return; (2) he asked a park patron to leave the park for violating Parks and Wildlife policy, following which the ejected patron filed a complaint; (3) he borrowed a digital camera purchased for Friends with the organization’s funds for his personal use and, during that time, misplaced some of its necessary components; and (4) he had possession of a radar detector.
To preserve error related to the admission of extraneous offenses, the defendant must timely object that the evidence is inadmissible under Rule 404(b), at which point the State must show that the proffered evidence is relevant apart from its tendency to show that the defendant is a criminal. See Lockhart v. State, 847 S.W.2d 568, 573 (Tex. Crim. App. 1992). Further, the trial court should honor any request by the defendant for the State to articulate into the record the purpose for which the evidence is offered. Id. If the trial court determines that the evidence is relevant, the defendant must further object under Texas Rule of Evidence 403. Id.
Furthermore, to preserve error, a party is required to continue to object each time inadmissible evidence is offered. See Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). There are two exceptions to the contemporaneous objection rule. Id. First, a party need not contemporaneously object when the inadmissible evidence pertains to a previously lodged, timely running objection. Id. at 858–59. Alternatively, where a party lodges objections to inadmissible evidence, and the court hears such objections outside the jury’s presence and rules that it be admitted, such objections are deemed to apply to such evidence when it is admitted before the jury without the necessity of the party’s objections being repeated. Id. at 859; see also Tex. R. Evid. 103(a)(1).
We first consider the testimony concerning Appellant’s failure to return membership dues to Mary Hilliard. We note that Appellant failed to timely object to this testimony when it was first elicited. An objection must be timely; that is, the defendant must object to the evidence, if possible, before it was actually admitted or as soon as the objectionable nature of the evidence becomes apparent. The defendant also must have moved to strike the evidence, that is, to have it removed from the body of evidence the jury is allowed to consider. See Ethington, 819 S.W.2d at 858; see also Tex. R. App. P. 33.1(a). Therefore, we hold that Appellant waived the error, if any, of which he now complains.
We next consider Appellant’s contention that the trial court improperly admitted evidence that Appellant asked a park patron to leave the park for violating Parks and Wildlife policy in contravention of Rule 404(b). At the first instance in which this testimony was offered, Appellant objected to the testimony arguing that it was irrelevant, amounted to hearsay, and denied Appellant his right to confrontation. However, Appellant did not make an objection with regard to Rule 404(b). Therefore, Appellant failed to preserve error, if any. See Tex. R. App. P. 33.1(a); Lockhart, 847 S.W.2d at 573 (To preserve error related to the admission of extraneous offenses, the defendant must timely object that the evidence is inadmissible under rule 404(b)); Ethington, 819 S.W.2d at 858 (The defense must have stated specifically the basis for the objection unless the particular ground was apparent from the context.).
We next consider Appellant’s argument that the trial court improperly admitted evidence that he borrowed a digital camera purchased for Friends with the organization’s funds and, while using it for unrelated purposes, misplaced some of its necessary components. The testimony pertaining to this evidence and Appellant’s ensuing objection is as follows:
PROSECUTING ATTORNEY: Now, there’s been some discussion of the Craigs loaning property to the park to – was there ever any instance of [Appellant] using park equipment without permission.
WITNESS: We had a camera of the Friends group that he had used.
PROSECUTING ATTORNEY: What – he didn’t have permission to use this camera?
WITNESS: Not for personal reasons.
PROSECUTING ATTORNEY: How do you know he was using it for personal reasons?
WITNESS: Well, when it was returned we didn’t have any park-related pictures on it to my knowledge, and it was missing a –
APPELLANT’S COUNSEL: Your Honor, may I object, and may I approach the Bench?
THE COURT: Yes.
(At Bench, on the record.)
APPELLANT’S COUNSEL: Remember the limine. Remember the limine about character evidence and the very strict rules about proving other bad acts in order to prove guilt of the act charged. What we’ve got here is a purpose –
....
APPELLANT’S COUNSEL: Purposeful abuse of the rules. This is not proper. This is not what you do.
PROSECUTING ATTORNEY: There’s no hearsay – Your Honor, Rule 404(b) allows me to prove evidence of other bad acts to show lack of mistake, to show motive. This is relevant to show – basically to show this young man felt that anything in the park belonged to him, he could do whatever he wanted with it because of the volunteer work he did. He had a right basically to run wild with the park’s equipment and merchandise. I think that is very relevant because that same mentality then explains why he would feel justified later on embezzling the money. [Appellant’s Counsel] did not file any sort of 404(b) motion basically requiring notice for this. I’m allowed to get into this at this point in the trial, and again he opened the door on character evidence coming in with his own cross-examination of this witness. I did not bring this up on the direct of the witness. He brought up how he worked there. He brought up equipment. He brought up [Appellant’s] being a good worker. This is all relevant to directly rebut what they say.
THE COURT: I agree with [the Prosecuting Attorney].
APPELLANT’S COUNSEL: I ask you to remember it when we get to real character evidence.
THE COURT: Okay.
APPELLANT’S COUNSEL: Remember that the door is being kicked open.
PROSECUTING ATTORNEY: The door wasn’t kicked open by me.
APPELLANT’S COUNSEL: It’s being kicked open now.
THE COURT: All right. Go, go.
(Bench Conference concluded.)
The State then elicited testimony that Appellant had misplaced the battery and charger for the camera.
We iterate that, if a defendant makes a Rule 404(b) objection and if the trial court, considering the State’s showing that the proffered evidence is relevant apart from its tendency to show that the defendant is a criminal, determines that the evidence is relevant, the defendant must further object under Texas Rule of Evidence 403. See Lockhart, 847 S.W.2d at 573. Although Appellant responded to the trial court’s ruling asking the court to “remember that the door is being kicked opened” and, further, engaged in a brief debate with the prosecuting attorney as to who had kicked the door open, he failed to make any argument pursuant to Rule 403. As such, we hold that Appellant waived the error, if any, of which he now complains.
We finally consider Appellant’s argument that the trial court improperly admitted evidence that he possessed a radar detector. However, the record reflects that Appellant failed to object to testimony concerning his possession of a radar detector when such testimony was first elicited. As Appellant is required to lodge a timely objection to preserve error, by his failure to do so, he has waived any error concerning the admissibility of such testimony. See Tex. R. App. P. 33.1; Ethington, 819 S.W.2d at 858. Appellant’s second issue is overruled.
Factual Sufficiency
In his third issue, Appellant argues that the evidence is factually insufficient to support the jury’s verdict. In conducting our review, we must first assume that the evidence is legally sufficient under the Jackson standard.7 See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We then consider all of the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that fact. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). Although we are authorized to disagree with the jury’s determination, even if probative evidence exists that supports the verdict, see Clewis, 922 S.W.2d at 133, 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. See Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App.– El Paso 1996, pet. ref’d). Ultimately, we must ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine our confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see also Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006) (Evidence is factually insufficient only when reviewing court objectively concludes that the great weight and preponderance of the evidence contradicts the jury’s verdict.).
In the case at hand, the crux of Appellant’s contention is that the evidence raises compelling alternative hypotheses other than his guilt, most notably, according to Appellant, that if money was stolen from Friends, it was taken by the absentee treasurer, Mary Lou Hyde, rather than Appellant.
Assuming as we must that the evidence is legally sufficient to support the jury’s verdict, we have reviewed the record in its entirety. As Appellant argues, the testimony elicited from both Appellant and Gary Craig supports the conclusion that Appellant tendered the funds he was accused of stealing to his parents who, in turn, gave the funds to Hyde. Yet we iterate that our evaluation should not substantially intrude upon the jury’s role as the sole judge of the weight and credibility of witness testimony, see Santellan, 939 S.W.2d at 164, and where there is conflicting evidence, the jury’s verdict on such matters is generally regarded as conclusive. See Van Zandt, 932 S.W.2d at 96. It follows that the jury was entitled to find the testimony offered by Appellant and Gary Craig was not credible and that evidence presented by the State amounted to a more accurate portrayal of the events which had, in fact, transpired. See, e.g., Thompson v. State, 54 S.W.3d 88, 97 (Tex. App.–Tyler 2001, no pet.).
Our review of the record as a whole, with consideration given to all of the evidence, both for and against the jury’s finding, has not revealed to us any evidence that causes us to conclude that the proof of guilt is so obviously weak or is otherwise so greatly outweighed by contrary proof as to render Appellant’s conviction clearly wrong or manifestly unjust. Therefore, we hold that the evidence is factually sufficient to support the jury’s verdict. Appellant’s third issue is overruled.
Disposition
Having overruled Appellant’s first, second, and third issues, we affirm the trial court’s judgment.
SAM GRIFFITH
Justice
Opinion delivered July 31, 2007.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
1 Appellant stated that the funds he collected on October 16 and 20, over which his mother had possession, were given to Hyde as well. However, it is not clear from the record whether Appellant gave the October 16 and 20 funds to Hyde along with the October 30 funds.
2 The record is unclear as to whether Rhodes ever cashed the checks and returned the cash to the Friends group.
3 There was no statement for January 2005 admitted into evidence. Appellant conceded that the bank did not issue a statement when there was no account activity.
4 Appellant also moved for a directed verdict after the State rested its case.
5 The State conceded that the wording of information did not give Appellant notice that the State intended to rely on the aggregate amounts of various instances of alleged theft to satisfy the value element for Class A theft.
6 Appellant does not raise the issue of legal sufficiency on appeal.
7 See Jackson v. Virginia, 443 U.S. 307, 320, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979) (The standard for reviewing a legal sufficiency challenge is, after examining the evidence in the light most favorable to the jury’s verdict, whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.); see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993).