Alex v. State

483 S.W.3d 226, 2016 Tex. App. LEXIS 166, 2016 WL 279088
CourtCourt of Appeals of Texas
DecidedJanuary 8, 2016
DocketNo. 06-15-00054-CR
StatusPublished
Cited by4 cases

This text of 483 S.W.3d 226 (Alex v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alex v. State, 483 S.W.3d 226, 2016 Tex. App. LEXIS 166, 2016 WL 279088 (Tex. Ct. App. 2016).

Opinion

OPINION

Opinion by

Justice Burgess

Tasaririshe Alex was convicted of burglary of a building in violation of Section 30.02 of the Texas Penal Code. See Tex. Penal Code Ann. . § 30.02 (West 2011). Specifically, the State alleged that, she broke into the Jack in the Box restaurant where she had previously worked and stole between $700.00 and. $800.00 from the office safe. She was sentenced to serve two years’ imprisonment and now appeals her conviction. Her sole ground of error is that the evidence is legally insufficient to prove that she entered the building without the effective consent of the owner. Because we find that the evidence is sufficient to prove that she did not -have effective consent to enter the building, we affirm the conviction.

I. Summary of the Facts

The burglary occurred after 1:00 a.m. on March 9, 2014, which was approximately one month after Alex’s employment'with Jack in thé Box had been terminated. A video surveillance’ recording (recording) depicted glass shattering and a person with a ponytail entering the restaurant through the broken window. The recording further showed this person opening the office safe using a code and then leaving through the back door of the restaurant.

The restaurant’s general manager, Francheska Ward, testified that between $700.00 and ,$800.00 was missing from the ■safe. By observing the burglar’s ponytail, body type, and gait on the recording, Ward and other restaurant employees identified Alex as a potential suspect. Additionally, Alex was one of six people who knew the safe’s entry code, and Ward testified that because she did not know how to change the code, it had not been changed after Alex’s employment was terminated. Finally, the recording showed a white sport utility vehicle leaving the parking lot after the burglary, and Ward testi[228]*228fied that Alex drove a White GMC Envoy when she worked at the restaurant.

The indictment alleged that Alex entered a building not open to the public “without the effective consent of Curtis Franklin, the owner thereof.” Ward testified that Franklin was her “district manager.” Ward stated, “[Franklin] comes in and just, you know, kind of makes sure I’m doing what I’m supposed to be doing”’ Yet, she also testified that she was “the person that’s actually over this store.” Specifically, Ward testified, “I do the hiring, the firing; I make the schedules; I do the truck orders; and I oversee all the employees, pretty much.” Ward further testified that she had the authority to speak for Franklin, that she normally acted on behalf of the restaurant, and that she was not aware if Franklin had given Alex permission to enter the restaurant. Finally, Ward testified that no one has permission to enter the store after it has been closed and locked for the evening, that she gave no one permission to be in the store at that time on the day of the burglary, and that after an employee is fired, she does not have permission to be in the back area of the restaurant.

II. Standard of Review

In reviewing the legal sufficiency of the evidence, we review all the evidence in the light most favorable to the'verdict to determine whether any rational jury could have found the essential eleménts of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App.2010) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (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)). We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the trier of fact “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, 99 S.Ct. 2781). 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). 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. at 240.

The Texas Penal Code defines the term “owner” as “a person who ... has ... possession of the property, whether lawful or not, or a greater right to possession of the property than the actor....” Tex. Penal Code Ann. § 1.07(a)(35)(A) (West Supp. 2015). “[Olwnership may be alleged in either the actual owner or a special owner.” Byrd v. State, 336 S.W.3d 242, 251-52 (Tex.Crim.App.2011). The Texas Court of Criminal Appeals explained special ownership as follows:

[I]f Dad' owns a car and loans it to Daughter, and Defendant steals it from the shopping mall where Daughter parked it, the State could allege either Dad — the title or “actual owner” — or Daughter — the “special owner” who actually possessed the car at the time it was stolen — in its theft indictment. When an entity, such as a corporation, owns property, the traditional preferable practice had been to allege ownership in a natural person acting for the corporation. But ... under the current Penal Code, a corporation may both own and have actual possession of property. Thus, it is perfectly permissible, and [229]*229sometimes preferable, to now allege the corporation — Wal-Mart, for example — as the owner of the property and then call any agent or employee who holds a relevant position in the company to testify that the corporation did not give effective consent for a person to steal or shoplift its property.

/¿(footnote omitted) (citation omitted).

III. Issue Presented

In this ease, the State did not allege the name of the actual owner and then “call any agent or employee who holds, a relevant position in the company to testify that the corporation did not give effective consent.” Id. Rather, the State alleged that a special owner — District Manager Franklin — owned the building and then called a different special owner — Restaurant General Manager Ward — to testify that Alex did not have Franklin’s consent to enter the building. Alex argues that because the State alleged Franklin was the owner, but only proved that Alex did not have Ward’s consent to enter the building, the State failed to present legally sufficient evidence to prove that the entry was “without the effective consent of the owner” as required by Section 30.02 of the Penal Code. Essentially, Alex alleges that there is a fatal variance between the indictment and the evidence presented at trial.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Jaray Tyrell Mims v. State
Court of Appeals of Texas, 2020
Jose Luis Moreno v. State
Court of Appeals of Texas, 2020
Anthony Kavanaugh v. State
Court of Appeals of Texas, 2019
Thomas Joseph Gamelin v. State
Court of Appeals of Texas, 2019

Cite This Page — Counsel Stack

Bluebook (online)
483 S.W.3d 226, 2016 Tex. App. LEXIS 166, 2016 WL 279088, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alex-v-state-texapp-2016.