Affirmed and Memorandum Opinion filed May 22, 2008.
In The
Fourteenth Court of Appeals
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NO. 14-07-00119-CR
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JEREMY B. FONTENOT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Cause No. 1027519
M E M O R A N D U M O P I N I O N
Appellant Jeremy B. Fontenot challenges his conviction for the felony offense of theft on the grounds that the evidence is legally and factually insufficient to sustain the conviction. We affirm.
I. Factual and Procedural Background
Fontenot and his co-defendant, Shaundretta Hunt, were working as security guards at the Hewlett Packard complex in northwest Harris County. On March 28, 2005, during the evening shift, Fontenot and Hunt=s assignment was to follow the cleaning crew and unlock whatever doors they needed opened to complete their cleaning. Building 10, level 7, was not scheduled to be cleaned. On the morning of March 29, however, six computers were reported stolen from building 10, level 7.
The State presented two primary witnesses. First, the security director and branch manager for Securitas, Fontenot and Hunt=s employer, testified about the electronic key card system, Securitas=s policies and procedures, his investigation into the computer thefts, and the value of the missing computers. The electronic key cards, or Aco-tags,@ were individually numbered and one co-tag was assigned to each employee. Temporary co-tags were available for issue to employees who had lost or misplaced their co-tags. When a temporary co-tag was issued, Securitas would record the name of the person requesting the co-tag and the number of the temporary co-tag issued. Temporary co-tags were used to access building 10, level 7, on the evening of March 28. There was no record for the issuance of those temporary co-tags. The security director saw no indications of forced entry during his inspection. After viewing surveillance photographs, he testified that Fontenot and Hunt entered the facility around 6 p.m. with backpacks that appeared to be empty, and left the facility after 10 p.m. with backpacks that appeared to be full. It was against Securitas=s policy to allow guards to bring backpacks into the building. The security director also testified that when he interviewed Fontenot about the thefts, Fontenot was argumentative, combative, and defensive, and eventually ended the interview and surrendered his badge.
The security director said the six missing computers were worth about $8800. He arrived at this figure by taking the model numbers of the missing laptops and obtaining from Hewlett Packard its cost for each model. He explained that Hewlett Packard purchased these computers through an internal purchase-control system, and the cost to Hewlett Packard was below the fair-market value. Although Hewlett Packard owned the computers, Securitas was responsible for them and gave Hewlett Packard a check for $8800 to account for the loss.
During cross-examination, the security director admitted that persons other than Fontenot and Hunt could have been in the building that night, including the janitorial staff, the real estate facilities personnel, and Hewlett Packard employees. He also admitted that he did not interview any Hewlett Packard employees about the thefts, he did not remember interviewing any of the janitorial staff, and he waited a month before he reported the theft to the police. Additionally, he did not save the entire surveillance video from that evening, but retained still photographs taken from the video.
The second primary witness for the State was the security-systems manager for Securitas at the Hewlett Packard facility. He testified that the janitorial staff did not have keys to the individual offices. For the cleaning crew to enter an office, therefore, a security officer must unlock the door. He also testified that on the evening of the theft, Hunt=s assigned co-tag and two temporary co-tags were used to enter building 10, level 7. The temporary co-tags used that evening had not been properly signed out, but Fontenot and Hunt both had access to the security desk where the temporary co-tags were kept. Furthermore, each security officer was required to list on his daily activity report the number of the co-tag he used on that day. On their daily activity reports for the evening of March 28, Fontenot and Hunt both listed numbers that corresponded to no known co-tag despite each having been assigned a working co-tag.
When asked to compare the arrival photograph of Fontenot and Hunt to the departure photograph of Fontenot and Hunt, the security-systems manager testified that Awhen they came in for work, they had their backpacks on, but, of course, as you can see, they=re not as bulky.@ He said that during his interview with Fontenot regarding the thefts, Fontenot admitted that it was him in the photographs but claimed that his backpack was bulky because it contained his motorcycle jacket. The security-systems manager also testified that after the interview, Fontenot called and stated that he knew where the laptops were but that he needed an apology before he would reveal this information because he felt falsely accused of theft.
Fontenot also testified at trial, stating that he did not go to building 10, level 7, on the evening of March 28, 2005. Fontenot testified that he was never told not to wear a backpack and that he wore one during every shift. Several people were still in the facility after 6 p.m. that evening, including the janitorial staff and their supervisor and several Hewlett Packard employees. He claimed that he did not have a co-tag other than the one assigned to him. Although he testified that he removed his motorcycle jacket and placed it in his backpack before entering the building, he explained that his backpack may have appeared larger at the end of his shift because he removed the thick lining to his security jacket and put the lining in the backpack during his shift. On March 29, he received a call from the human-resources manager requesting that he come to the facility to fill out some papers. Upon arriving at the facility, he was taken to the security director and the security-systems manager to discuss the thefts. Fontenot testified that the two men accused him of stealing the computers, and that he quit his job after the security director demanded that Fontenot reveal the location of the stolen computers. Fontenot admitted to later contacting the security-systems manager, but testified that his purpose in so doing was to provide information about a moving violation he received on the evening of the thefts to prove that he had been riding his motorcycle. On cross-examination, he admitted that he could have obtained access to the temporary co-tags and to the missing computers.
Fontenot was charged by indictment with the felony offense of theft. He pleaded not guilty and trial was held before a jury. The jury found Fontenot guilty, and the trial court assessed punishment at confinement for two years in the Texas Department of Criminal Justice, State Jail Division, but suspended the sentence and placed him on community supervision for three years. He timely filed this appeal.
II. Issues and Analysis
In three issues, Fontenot contends that the evidence was (1) legally insufficient to support the verdict, (2) factually insufficient to support the verdict, and (3) insufficient to show that the value of the property stolen by Fontenot was over $1500 and under $20,000. A. Legal Sufficiency
When evaluating a legal-sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). We must affirm if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). The standard is the same for both direct - and circumstantial - evidence cases. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). We do not resolve any conflict of fact, weigh any evidence, or evaluate any witness=s credibility, as this was the function of the trier of fact. See Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992). The jury may choose to believe or disbelieve any portion of any witness= testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we presume that the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). We may overturn the verdict only if it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).
A person commits a theft Aif he unlawfully appropriates property with intent to deprive the owner of the property.@ Tex. Penal Code Ann. ' 31.03 (Vernon Supp. 2007). Fontenot contends that the evidence was legally insufficient to prove that he committed a theft. We disagree. Fontenot was working security at the Hewlett Packard facility on the evening of March 28, 2005. He was photographed by a surveillance camera entering the facility at the beginning of his shift with a backpack and leaving the facility at the end of his shift with a backpack that appeared larger, despite the policy that security guards were not allowed to carry backpacks. He registered a false co-tag number that evening. Temporary co-tags and Hunt=s assigned co-tag were used to access building 10, level 7, which Fontenot and Hunt were not scheduled to enter during their shift. Six computers were reported stolen from building 10, level 7, the following morning. Fontenot placed a phone call to the security-systems manager and claimed to know the location of the missing laptops, but demanded an apology before he would reveal the location. Additionally, Fontenot admitted that he had access to the temporary co-tags and to the computers. We conclude that a rational trier of fact could have found the essential elements of theft beyond a reasonable doubt based on this evidence.
B. Factual Sufficiency
When reviewing the factual sufficiency of the evidence to support a conviction, we view all the evidence in a neutral light, favoring neither party. See Watson v. State, 204 S.W.3d 404, 408 (Tex. Crim. App. 2006). We may set aside the verdict if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or if the verdict is against the great weight and preponderance of the evidence. Id. at 414-15. We must not, however, intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony. See Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). Although we may disagree with the jury=s conclusions, we must avoid substituting our judgment for that of the jury, particularly in matters of credibility. See Watson, 204 S.W.2d at 414.
Fontenot argues that the evidence was factually insufficient to support the verdict. We disagree. Fontenot testified that he was unaware of any policy prohibiting him from wearing a backpack and that his backpack may have appeared larger at the end of his shift because he removed the lining from his security jacket and placed it into the backpack during his shift. He claimed that he did not go onto level 7 of building 10 on March 28, 2005, and that he did not have a co-tag other than the one issued to him. He further testified that although he did contact the security-systems manager, he had no knowledge about the location of the stolen computers and he had made no statement claiming such knowledge. However, the trier of fact was entitled to believe or disbelieve any or all of Fontenot=s testimony and resolve the evidence as they saw fit. See Adelman, 828 S.W.2d at 421. Using these facts and the facts recited from the record in the discussion of legal sufficiency, we conclude that this evidence is not so weak that the fact finder=s determination is clearly wrong or manifestly unjust. Therefore, we conclude that the evidence is factually sufficient to support the jury=s verdict.
C. Value and Ownership
A theft is a state-jail felony if the value of the property stolen $1500 or more, but less than $20,000. Tex. Penal Code Ann. ' 31.03(e)(4)(Vernon Supp. 2007). The State presented testimony from the security director to prove that the value of the computers was between $1500 and $20,000, thus qualifying this theft as a state-jail felony.
Fontenot contends that the trial court should not have permitted the security director to testify as to the value of the computers. We disagree. An owner of property is competent to testify as to the value of his own property. Jones v. State, 814 S.W.2d 801, 803 (Tex. App.CHouston[14th Dist.] 1991, no pet.) (citing Sullivan v. State, 701 S.W.2d 905, 908 (Tex. Crim. App. 1986). An owner is a person who had Atitle to the property, possession of the property, whether lawful or not, or a greater right to possession of the property@ than the accused. Tex. Penal Code. Ann. ' 1.07(a)(35)(A)(Vernon 2003). The security director testified that as a representative of Securitas, he had a greater right to possession of the computers than Fontenot. Securitas was responsible for the loss of the computers and presented Hewlett Packard with a check for $8800 to compensate for the loss. Therefore, the security director was competent to testify as to the value of the property. See id.
Fontenot further contends that the evidence is insufficient to prove the value of the missing computers. We disagree. Value can be determined by ascertaining the fair-market value of the property at the time of the offense or the cost of replacing the property within a reasonable time after the offense. ' 31.08(a)(1),(2) (Vernon 2003). The security director arrived at the $8800 figure by taking the model numbers of the six computers, and searching through an internal purchase-control system to obtain the amount Hewlett Packard paid for each computer, noting that the amount Hewlett Packard paid was below the fair-market value. The security director then added the six amounts Hewlett Packard paid and determined that the cost of replacing the six computers was $8800. We conclude that the jury=s finding that the value of the computers was over $1500 and under $20,000 was legally and factually sufficient.
Accordingly, we affirm the trial court=s judgment.
/s/ Jeff Brown
Justice
Judgment rendered and Memorandum Opinion filed May 22, 2008.
Panel consists of Justices Yates, Guzman, and Brown.
Do Not Publish C Tex. R. App. P. 47.2(b).