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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00055-CR
______________________________
JOHN BOZEMAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 349th Judicial District Court
Houston County, Texas
Trial Court No. 08CR-042
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
The original judgment of this Court affirmed the conviction of John Bozeman. The Texas Court of Criminal Appeals granted Bozeman’s petition for discretionary review, vacated the judgment of this Court, and remanded for further action in light of Geick v. State, 349 S.W.3d 542 (Tex. Crim. App. 2011), decided subsequent to Bozeman v. State, 340 S.W.3d 515 (Tex. App.—Texarkana 2011), judgment vacated, No. PD-0839-11, 2011 WL 5375124 (Tex. Crim. App. Nov. 9, 2011). This opinion is issued in accordance with the mandate of the Texas Court of Criminal Appeals in Bozeman v. State, No. PD-0839-11, 2011 WL 5375124 (Tex. Crim. App. Nov. 9, 2011).
Bozeman was indicted on the charge of theft by deception[1]for the theft of nine pieces of jewelry from Cathy Hobson. After a bench trial, Bozeman was found guilty and was sentenced to eighteen months’ confinement in the Texas Department of Criminal Justice—State Jail Division.[2] On appeal, Bozeman claims that (1) the judgment is not supported by constitutionally sufficient evidence; and (2) the judgment is not supported by appropriate evidence of the value of the items alleged to have been stolen. Because the verdict is not supported by legally sufficient evidence, we reverse the judgment of the trial court and render a judgment of acquittal.
I. BACKGROUND
Bozeman and Hobson went to school together and have known each other most of their lives. In July 2006, when Hobson was preparing to move from a small house to a larger house next door, Bozeman offered the use of his truck and trailer to assist in the move. The moving process commenced on Monday July 17.[3] Hobson testified that on that date, Bozeman moved both of her jewelry boxes from the smaller house to the upstairs bedroom of the larger house. Bozeman was aware of the location of the jewelry boxes because Hobson directed him to place them in a drawer next to her bed. At that time, there was nothing missing from either of the jewelry boxes.[4]
On the second day of the move, Tuesday July 18, Bozeman asked Hobson to take her son to a baby-sitter, as Bozeman could not get any work done with the child underfoot. Hobson agreed, and took her son to a friend’s house a few blocks away. Hobson returned approximately forty-five minutes later, only to find that Bozeman was gone. Baffled by his disappearance, Hobson called Bozeman on his cell phone only to be told that he was at Lowe’s in Palestine purchasing a lawn mower for his father.[5]
When Hobson’s husband arrived home from work on the evening of the 18th, Hobson showed him what had been accomplished at their prospective new home. When Hobson noticed that an antique music box and an antique adding machine[6] were both missing, she immediately went upstairs to check her jewelry boxes. Hobson discovered that some of her jewelry was missing and filed a report with the local police that same evening. Hobson never questioned Bozeman about the missing items of jewelry, as she suspected he was responsible for their disappearance.
Approximately three weeks later, when Hobson learned Bozeman was having work done on one of his rings at Charles Dickens’ jewelry store in Palestine, she paid a visit to Mr. Dickens. After having been presented with a copy of the police report, Dickens agreed to show Hobson several items of jewelry Bozeman brought to the store. Hobson identified nine of those items of jewelry as belonging to her. At trial, Dickens testified that Bozeman brought those nine items of jewelry into his store on July 19, 2006, the day after Hobson’s jewelry was reported missing. Bozeman denies any involvement in the disappearance of Hobson’s jewelry; the jewelry boxes were dusted for fingerprints, but no discernible prints were obtained.
II. ANALYSIS
A. The Evidence is Legally Sufficient to Support the Finding of Unlawful
Appropriation
In his first point of error, Bozeman generally claims the evidence is legally insufficient to support the trial court’s verdict. In reviewing the legal sufficiency of the evidence, we review all the evidence in the light most favorable to the jury’s verdict to determine whether any rational jury could have found the essential elements of the charged offense. Brooks v. State, 323 S.W.3d 893, 902, n.19 (Tex. Crim. App. 2010) (4-1-4 decision) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.––Texarkana 2010, pet. ref’d) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). Our rigorous legal sufficiency review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917–18 (Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury “to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19).
Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).[7] The hypothetically correct jury charge “sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.” Id.
The indictment states, in pertinent part, that Bozeman:
[O]n or about July 18, 2006[,] and before presentment of this Indictment, in said County and State, did then and there: unlawfully appropriate, by acquiring or otherwise exercising control over property, to-wit: Men’s Yellow/gold 3 stone wedding band, small yellow solitaire ring, Men’s nugget solitaire ring, 3.7 mm wedding band, Ladies 3 stone with sapphire accent ring, lady’s 2 tone engagement ring, w/3 stones, Yellow gold coin ring w/3 stones, 5 oz gold eagle coin, Gold watch chain and faub [sic], of the value of $1,500 or more but less than $20,000, from Cathy Hobson, the owner thereof, without the effective consent of the owner, namely, by deception, and with intent to deprive the owner of the property.
In making an analysis under the hypothetically correct jury charge, we find that the indictment required the State to prove that: (1) John Bozeman (2) on or about July 18, 2006, (3) in Houston County, Texas, (4) unlawfully appropriated, by acquiring or exercising control over the listed items, (5) having a value of $1500.00 or more but less than $20,000.00, (6) from Hobson (7) by deception and (8) with the intent to deprive Hobson of the property.
Here, Bozeman claims that the State’s evidence is deficient in proving, beyond a reasonable doubt, that Bozeman (1) unlawfully appropriated the property in question, and (2) deceived Hobson.[8] We initially examine the evidence of unlawful appropriation of Hobson’s jewelry by Bozeman. Bozeman points to his own testimony, which accounts for his acquisition of the jewelry in question from sources other than Hobson. First, Bozeman maintains that he purchased two of the items of jewelry at a pawn shop in Crockett. The record is not clear as to which two items Bozeman claims were so purchased. John Smock, the owner of the pawn shop in Crockett, testified that he has known Bozeman for fifteen years and that Bozeman has purchased several pieces of jewelry from Smock over the years, similar to the rings depicted in State’s exhibit seventeen (photograph of the nine items of jewelry located in Dickens’ jewelry store). Next, Bozeman testified that the coin he is accused of stealing from Hobson (actually a .5 ounce coin rather than a 5-ounce coin) was given to him by his father, Charles Bozeman. Charles Bozeman testified that he purchased a 2000 Liberty gold coin for Bozeman in March 2001. Bozeman testified that the wedding band (otherwise not identified) was given to him by his father as well when his father outgrew it.
Bozeman contends that the remaining five items of jewelry he was convicted of stealing from Hobson were items he purchased from a fellow by the name of Dennis Denby. Bozeman maintains that Denby sold the items for Otis Johnson, who needed the money to pay his light bill. Denby testified that in early August 2006, he introduced Bozeman to a fellow that had some jewelry to sell. Denby took the man (identified by Bozeman as Johnson) to Bozeman, who purchased the jewelry. Bozeman introduced a sales receipt at trial for these five items, dated August 7, 2006. According to Bozeman, Denby signed the receipt “Dennis Denby sold for Otis Johnson” on the date of the transaction. Denby testified that Bozeman approached him a few days after the sale and asked him to sign the receipt.
Bozeman maintains on appeal that the weakness of the State’s evidence, in conjunction with the evidence accounting for Bozeman’s legal acquisition of the jewelry, can lead only to the conclusion that the evidence failed to establish Bozeman’s guilt beyond a reasonable doubt. He complains that the State’s evidence is largely circumstantial and that it failed to eliminate any other reasonable alternative, such as the sale of the jewelry to Bozeman by a third party.[9] The lack of direct evidence is not dispositive of the issue of Bozeman’s guilt. Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Hooper, 214 S.W.3d at 13. Furthermore, the standard of review on appeal is the same for both direct and circumstantial evidence cases. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004).
As a reviewing court, it is our job to view the evidence in the light most favorable to the verdict to determine whether any rational fact-finder could have found the essential elements of the offense beyond a reasonable doubt. Further, we defer to the finder of fact to resolve conflicts in the evidence and to determine the credibility of that evidence. Here, the trial court was free to believe Hobson’s testimony and to discount the testimony of Bozeman and Denby. Given the fact that Dickens testified that Bozeman brought all nine pieces of jewelry into his store on July 19, and the receipt for the sale of five items of jewelry shown to have been purchased by Bozeman was signed on August 7, it appears that this is exactly what the trial court did. In viewing the evidence in the light most favorable to the trial court’s verdict, a rational fact-finder could have found that Bozeman unlawfully appropriated jewelry belonging to Hobson.
B. The Evidence Is Legally Insufficient to Support the Finding that the Unlawful Appropriation Was Accomplished by Deception
Next, still complaining of the legal sufficiency of the evidence, Bozeman claims that no evidence was introduced showing any property belonging to Hobson was obtained by means of deception. Bozeman contends that because the indictment alleged only one means of committing theft—by deception—the State was required to prove that particular means. Bozeman argues that because there is no evidence of deception, the evidence is legally insufficient to sustain his conviction. The State maintains that it proved theft by deception as alleged in the indictment. The issues, therefore, are (1) whether the State was required to prove deception, where deception was alleged in the indictment, and if so, (2) whether the State proved deception.[10]
The issue of whether the State was required to prove deception where deception was alleged in the indictment was the subject of the Texas Court of Criminal Appeals’ opinion in Geick v. State. In that case, Geick was indicted for theft by deception of a bulldozer. The jury charge allowed for a conviction without limiting the manner in which the theft was committed, and Geick was found guilty “as charged in the indictment.” Geick, 349 S.W.3d at 544.
On appeal, the Fourteenth Court of Appeals acquitted Geick because there was no evidence of deception. The Texas Court of Criminal Appeals affirmed, holding that “when a statute lays out several alternative methods of committing the offense, and the indictment alleges only one of those methods, ‘the law as authorized by the indictment’ is limited to the method specified in the indictment.” Id. at 545 (citing Gollihar v. State, 46 S.W.3d 243, 254–55 (Tex. Crim. App. 2001)). In so holding, the high court rejected the State’s argument that the term “deception” as a means of committing theft was merely a definition, rather than an element of the offense, and therefore should not be a part of the hypothetically correct jury charge. In this case, therefore, the State was required to prove deception since it alleged deception in the indictment.[11]
The testimony here indicates Bozeman volunteered his services to help Hobson move her belongings from one house to the other. Hobson testified that she never asked Bozeman to help with the move. After the move commenced, Bozeman told Hobson that he could not work with her son there because he was in the way. He asked Hobson to take her son to a baby-sitter, which she did. By reason of this request, Bozeman gained the opportunity to steal Hobson’s jewelry, which he had placed in a drawer next to Hobson’s bed on the previous day.
When Hobson returned from taking her son to the baby-sitter, Bozeman was gone. Bozeman did not tell Hobson he would be leaving, and it was her understanding that Bozeman intended to help her move that day—hence the request to take her son to the baby-sitter. The State argues that Bozeman had no intention of working all day, but was merely creating an opportunity to carry out the theft of Hobson’s jewelry, which constitutes legally sufficient evidence to prove theft by deception. We disagree.
A person commits theft “if he unlawfully appropriates property with intent to deprive the owner of property.” Tex. Penal Code Ann. § 31.03(a); Riley v. State, 312 S.W.3d 673, 675 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d). The statute defines three ways in which an appropriation is unlawful, including “without the owner’s effective consent.” Tex. Penal Code Ann. § 31.03(b) (West Supp. 2011); King v. State, 174 S.W.3d 796, 809 (Tex. App.—Corpus Christi 2005, pet. ref’d). Consent is not effective if induced by deception or coercion. Tex. Penal Code Ann. § 31.01(3)(A) (West Supp. 2011). The Texas Penal Code defines “deception” as, among other things, “creating or confirming by words or conduct a false impression of law or fact that is likely to affect the judgment of another in the transaction, and that the actor does not believe to be true.” Tex. Penal Code Ann. § 31.01(1)(A) (West Supp. 2011 ).[12] “When relevant at all in a prosecution for theft, however, ‘deception’ goes to ‘circumstances surrounding the conduct’ of the accused, in that deception operates to render otherwise apparent consent ‘ineffective.’” Cheney v. State, 755 S.W.2d 123, 129 (Tex. Crim. App. 1988); Skillern v. State, 890 S.W.2d 849, 871 (Tex. App.—Austin 1994, pet. ref’d). In other words, when a defendant is charged with theft by deception, consent must be induced by deception. In such a circumstance, the consent given is ineffective.[13]
Here, Bozeman never obtained Hobson’s consent, effective or otherwise, to appropriate her jewelry. Bozeman may have acted deceptively in “tricking” Hobson into leaving the premises, but this was solely for the purpose of affording Bozeman the opportunity to unlawfully acquire control over the items of jewelry he deposited at Charles Dickens’ jewelry store in Palestine the following day. Bozeman’s deception cannot be said to have in any way induced Hobson into consenting to hand her jewelry over to him. In viewing the evidence of deception in the light most favorable to the trial court’s verdict, a rational fact-finder could not have found that Bozeman unlawfully appropriated Hobson’s jewelry by means of obtaining consent by deception. Accordingly, we are compelled to conclude that the evidence is legally insufficient to support a finding of theft by deception.[14] We sustain Bozeman’s first point of error.
Because we find the evidence is legally insufficient to support the verdict, we do not address Bozeman’s second point of error, complaining of the sufficiency of the evidence to support the jewelry’s value.
III. CONCLUSION
We reverse the judgment of the trial court and render a judgment of acquittal because there is legally insufficient evidence of theft by deception.
Jack Carter
Justice
Date Submitted: January 11, 2012
Date Decided: January 12, 2012
Do Not Publish
[1]Tex. Penal Code Ann. § 31.03 (West Supp. 2011).
[2]Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See Tex. Gov’t Code Ann. § 73.001 (West 2005). We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue. See Tex. R. App. P. 41.3.
[3]Others helped with the move; Hobson hired Consuelo Venezuela and Christopher Lopez to help pack. Bozeman testified that Donald Davis accompanied him to Hobson’s house to assist with the move.
[4]Bozeman claims that he never saw a jewelry box while assisting with the move.
[5]According to Bozeman, Hobson was aware of his appointment with the manager at Lowe’s on the 18th.
[6]Bozeman was not charged with the theft of these items.
[7]Even though no jury charge was given, we nevertheless employ this analysis to determine the legal sufficiency of the evidence. Malik, 953 S.W.2d at 240 (the Malik test applies to nonjury or bench trials).
[8]In his second point of error, Bozeman complains of the sufficiency of proof regarding the value of the items he was convicted of stealing.
[9]In Geesa v. State, 820 S.W.2d 154, 159 (Tex. Crim. App. 1991), overruled on other grounds by Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000), the Texas Court of Criminal Appeals expressly disavowed the “reasonable hypothesis analytical construct” for legal sufficiency reviews.
[10]In our original opinion, we found that based on the hypothetically correct jury charge, the evidence was sufficient to prove Bozeman committed the offense of theft. Bozeman, 340 S.W.3d at 523.
[11]Unlike Geick, the instant case was tried to the court.
[12]Deception is further defined as “failing to correct a false impression of law or fact that is likely to affect the judgment of another in the transaction, that the actor previously created or confirmed by words or conduct, and that the actor does not now believe to be true.” Tex. Penal Code Ann. § 31.01(1)(B) (West Supp. 2011).
[13]Effective consent includes “consent by a person legally authorized to act for the owner. Consent is not effective if: (A) induced by deception or coercion . . . .” Tex. Penal Code Ann. § 31.01(3)(A).
[14]Had the indictment in this case merely alleged Bozeman unlawfully appropriated property with the intent to deprive the owner of property, such allegation would be “the law authorized by the indictment” for purposes of the hypothetically correct jury charge. See Geick, 349 S.W.3d at 546. In that case, it would have been unnecessary to prove the element of deception and the evidence would have then been legally sufficient to support the verdict.
#160; De-Kaizered made no assertion of these issues before its motion for rehearing, and the matter cannot be raised at this point in the proceedings. "Rehearing is not an opportunity to test alternative arguments after finding other arguments unsuccessful." ICM Mortgage Corp. v. Jacob, 902 S.W.2d 527, 535 (Tex. App.‒El Paso 1994, writ denied) (op. on reh'g); see Coastal Liquids Transp., L.P. v. Harris County Appraisal Dist., 46 S.W.3d 880, 885 (Tex. 2001); McGuire v. Fed. Deposit Ins. Corp., 561 S.W.2d 213, 216 (Tex. Civ. App.‒Houston [1st Dist.] 1977, no writ) (op. on reh'g). If De-Kaizered wanted to contest the elements of substantial performance, other than material breach, the arguments should have been raised in its original submission and not in its motion for rehearing. Therefore, the issue of whether Continental failed to plead and prove all the elements of substantial performance is not before this Court and we will not address it.
We overrule the motions for rehearing.
Donald R. Ross
Justice
Date: October 22, 2003