Christopher Dione Alexander v. State

• Court: Court of Appeals of Texas
• Decided: July 16, 2019
• Docket: 01-18-00496-CR
• Status: Published

Opinion

Opinion issued July 16, 2019

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-18-00496-CR ——————————— CHRISTOPHER DIONE ALEXANDER, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 338th District Court Harris County, Texas Trial Court Case No. 1557693

MEMORANDUM OPINION

A jury found appellant, Christopher Dione Alexander, guilty of the offense

of theft.1 After he pleaded true to the allegations in two enhancement paragraphs

that he had twice been previously convicted of felony offenses, the trial court

1 See TEX. PENAL CODE ANN. § 31.03(a). assessed his punishment at confinement for eight years. In his sole issue, appellant

contends that the evidence is legally insufficient to support his conviction.

We modify the trial court’s judgment and affirm as modified.

Background

A Harris County Grand Jury issued a true bill of indictment, alleging that

appellant, on or about July 5, 2017, “unlawfully appropriate[d], by acquiring and

otherwise exercising control over property, namely, cash money owned by [the

complainant] . . . with the intent to deprive the [the complainant] of the property.”

At trial, Houston Police Department (“HPD”) Officer C. Dorton testified

that “jugging” or “bank jugging” is where “people sit in front of banks” and watch

for other individuals to exit after they have withdrawn money. They then follow

the person who has withdrawn money to another location to “rob that person of

the[] money.” Dorton testified that he is part of a team that investigates these types

of crimes regularly. He further explained that because it is not illegal to park in a

bank parking lot or to follow another person, it is difficult to know who will be

targeted. In investigating these types of offenses, HPD uses a plain-clothed law

enforcement officer to act like a bank customer and then waits for a person

intending to commit bank jugging to follow the plain-clothed officer. Dorton

further explained that HPD uses “bait money” in its “bank-jugging” investigations.

In order to avoid losing the “bait money” during an operation, an HPD officer will

2 attach the “bait money” to a “steel security cable” which is secured to the vehicle

driven by the plain-clothed officer.

In July 2017, HPD received “a complaint of an increase of bank juggings

occurring off of Washington Avenue” in Houston, Texas, “where customers were

being followed from [a] bank and they were either having their purses snatched or

their windows broken and their money stolen.” In response, on July 5, 2017,

Officer Dorton and other HPD law enforcement officers went to a Bank of

America off of Washington Avenue “to hopefully try to catch the guys who were

doing it.”

At the Bank of America, Officer Dorton and other law enforcement officers

observed a black, “small, boxy SUV” that was “parked in front of the bank.” “No

one got in or out of the [SUV], which is consistent with what bank jugging

suspects do.” And the SUV remained parked outside of the bank for “an extended

period of time, more than 10 minutes.” The SUV left the bank and Dorton

followed it to a gas station where he saw the driver of the SUV, who he identified

as appellant, and a “heavyset, black female in the front passenger seat” with the

“seat laid back all the way.” The SUV returned to the bank, where it “parked again

positioned with the view to watch the front doors.”

At that point, a plain-clothed law enforcement officer entered the bank with

$2,500 in “bait money” to act as a customer. He walked out of the bank “with a

3 little bank bag” and drove to a pawn shop in an unmarked City of Houston truck.

Appellant followed the plain-clothed officer in his SUV.

The plain-clothed officer got out of his truck and entered the pawn shop

without carrying anything in his hands. Appellant then parked his SUV next to the

plain-clothed officer’s truck. After exiting his truck, appellant used a “spring-

loaded window punch” to break the passenger-side window of the plain-clothed

officer’s truck. Appellant reached in through the broken window and pulled the

bank bag containing the “bait money” out of the window. Once he realized that

the bag of “bait money” was attached to a security cable, appellant abandoned the

“bait money” and fled the scene. Officer Dorton and other law enforcement

officers ultimately apprehended appellant nearby.

HPD Sergeant R. Watson testified that he was the plain-clothed officer who,

on July 5, 2017, carried the “bait money” out of the Bank of America when Officer

Dorton and other law enforcement officers went to the bank to investigate “bank

jugging” on that day. He testified that after he exited the Bank of America on that

day, he got into his truck and put the “bait money” into the glove box, securing it

with a cable. Watson then drove to a pawn shop nearby and went inside, making

sure it was clear that his hands were empty so that it was clear to an observer that

he left the “bait money” inside his truck.

4 Standard of Review

We review the legal sufficiency of the evidence by considering all of the

evidence in the light most favorable to the jury’s verdict to 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); Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Our role is that of a due

process safeguard, ensuring only the rationality of the trier of fact’s finding of the

essential elements of the offense beyond a reasonable doubt. See Moreno v. State,

755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We give deference to the

responsibility of the fact finder to fairly resolve conflicts in testimony, weigh

evidence, and draw reasonable inferences from the facts. Williams, 235 S.W.3d at

750. However, our duty requires us to “ensure that the evidence presented actually

supports a conclusion that the defendant committed” the criminal offense of which

he is accused. Id.

In reviewing the legal sufficiency of the evidence, we treat direct and

circumstantial evidence equally because circumstantial evidence is just as

probative as direct evidence in establishing the guilt of a defendant. Clayton v.

State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Circumstantial evidence

constitutes “direct proof of a secondary fact which, by logical inference,

demonstrates the ultimate fact to be proven.” Taylor v. State, 684 S.W.2d 682, 684

5 (Tex. Crim. App. 1984). And it alone can be sufficient to establish guilt. Clayton,

235 S.W.3d at 778. Further, the “cumulative force” of all the circumstantial

evidence in a case can be sufficient to support a jury finding of guilt beyond a

reasonable doubt. Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006).

Sufficiency of Evidence

In his sole issue, appellant argues that there is legally insufficient evidence

to support his conviction because he could not have “appropriated” the “bait

money” from the plain-clothed law enforcement officer’s truck because it “was

locked with a steel security cable to the truck’s dash,” which “prevented

[appellant] from gaining control of the money.”

A person commits the offense of theft if he “unlawfully appropriates

property with the intent to deprive the owner of the property.” TEX. PENAL CODE

ANN. § 31.03(a). “Appropriate,” in this context, means “to acquire or otherwise

exercise control over property other than real property.” Id. § 31.01(4)(B).

“Appropriation of property is unlawful” if: (1) “it is without the owner’s effective

consent;” (2) “the property is stolen and the actor appropriates the property

knowing it was stolen by another;” or (3) “property in the custody of any law

enforcement agency was explicitly represented by any law enforcement agent to

the actor as being stolen and the actor appropriates the property believing it was

stolen by another.” Id. § 31.03(b). “[R]emoval of the property from the premises

6 is not necessary for commission of the offense of theft. Removal of the object

from its customary location is sufficient to show such reduction to the control or

manual possession as required.” Baker v. State, 511 S.W.2d 272, 272 (Tex. Crim.

App. 1974).2

2 See also Davis v. State, No. 01-17-00587-CR, 2019 WL 1179429, at *6 (Tex. App.—Houston [1st Dist.] Mar. 14, 2019) (mem. op., not designated for publication) (in “bank jugging” case, holding evidence sufficient to show defendant exercised control over backpack full of money where he removed it from seat of car and pulled through window even though backpack attached to chain); Willis-Webb v. State, No. 01-15-00727-CR, 2016 WL 6277423, at *3–4 (Tex. App.—Houston [1st Dist.] Oct. 27, 2016, pet. ref’d) (mem. op., not designated for publication) (holding sufficient evidence to support conviction for unlawful appropriation even though security guards caused defendant to abandon merchandise before leaving store); Hicks v. State, No. 12-13-00158-CR, 2014 WL 1922619, at *3 (Tex. App.—Tyler May 14, 2014, no pet.) (mem. op., not designated for publication) (holding although defendant did not leave store with jewelry, he was not entitled to attempted-theft instruction because “the act of carrying away or removing property is not an element of statutory theft”); Patterson v. State, No. 09-12-00576-CR, 2014 WL 1778373, at *4 (Tex. App.— Beaumont Apr. 30, 2014, pet. ref’d) (mem. op., not designated for publication) (defendant on trial for theft of copper wire not entitled to attempted-theft instruction because “[w]hen [o]fficer . . . saw [defendant] with the roll of wire in his hand, [defendant] was exercising control over it”); Ragan v. State, No. 12-13-00183-CR, 2013 WL 6797734, at *3 (Tex. App.—Tyler Dec. 20, 2013, no pet.) (mem. op., not designated for publication) (“When [defendant] and his codefendant disconnected the transformers, they exercised control over the property, which is consistent with the penal code’s definition for ‘appropriate.’ . . . There is no evidence that if [defendant] was guilty, he was guilty only of ‘attempted theft.’”); Malone v. State, No. 05-05-01159-CR, 2006 WL 1727727, at *2 (Tex. App.—Dallas June 26, 2006, pet. ref’d) (not designated for publication) (holding defendant not entitled to attempted-theft instruction because he “hooked the trailer to his van and had moved the trailer, although only slightly”); Cantrell v. State, No. 05-92-01220-CR, 1994 WL 24386, at *2 (Tex. App.—Dallas Jan. 31, 1994, no pet.) (not designated for publication) (“[T]o have the issue of attempted theft submitted to the jury, the evidence must show that [defendant] intended to take the necklace, but failed”; “[a]lthough [defendant] argues that he never had 7 Here, appellant argues that he “never acquired the [bank] bag” containing

the “bait money” or “exercised control over it” because the “[bank] bag and its

contents remained in the firm control of a steel security cable.” He further argues

that to establish the requisite appropriation in this case, there would need to be

some evidence that appellant had managed to remove the bank bag from the

security cable. Contrary to appellant’s assertions, however, it is undisputed that he

broke the window of the plain-clothed law enforcement officer’s truck, reached

inside the truck, removed the bank bag containing the “bait money” from the

truck’s glove box, and pulled the bank bag outside of the truck’s window. Once

appellant realized that the bank bag was attached to a security cable, he dropped it,

leaving it hanging from the security cable outside of the truck’s window, and fled

the scene. That appellant was ultimately thwarted in his efforts to flee the scene

with the bank bag of “bait money” is of no consequence to our analysis of the

sufficiency of the evidence to support his conviction of theft in this case. See

Westerman v. State, 161 S.W.2d 95, 103 (Tex. 1942) (holding defendant guilty of

offense of theft where he pushed car few blocks down street, but then abandoned it

when car would not start because “it was not necessary that the appropriation be

consummated or completed”). This is because “asportation—the act of carrying

full possession of the necklace, a temporary deprivation with the requisite intent to permanently deprive sufficiently establishes the crime of theft”).

8 away or removing property—is not an element of statutory theft.” Hawkins v.

State, 214 S.W.3d 668, 670 (Tex. App.—Waco 2007, no pet.); see also TEX.

PENAL CODE ANN. § 31.03(a); Barnes v. State, 513 S.W.2d 850, 851 (Tex. Crim.

App. 1974) (holding defendant guilty of offense of theft where he entered car and

started motor even though he was stopped before driving away). In other words, it

is the intent to deprive and not the actual deprivation of the property that informs

our analysis. Here, appellant does not argue that the evidence is insufficient to

support the intent element of the offense of theft. And any exercise of control over

property, other than real property, is an appropriation regardless of the duration of

that control. Palmer v. State, 471 S.W.3d 569, 571 (Tex. App.—Houston [1st

Dist.] 2015, no pet.).

Viewing all of the evidence in the light most favorable to the jury’s verdict,

we conclude that a rational trier of fact could have found that appellant unlawfully

appropriated property with the intent to deprive the owner of the property. See

TEX. PENAL CODE ANN. § 31.03(a). Accordingly, we hold that there is legally

sufficient evidence to support appellant’s conviction.

We overrule appellant’s sole issue.

Modification of Judgment

The State asserts that there is an error in the trial court’s written judgment in

that it states in regard to appellant’s “[p]lea to [o]ffense” that appellant entered a

9 plea of “guilty where the record shows appellant entered a plea of “not guilty.”

Therefore, the State requests that this Court modify the trial court’s judgment to

correctly reflect appellant’s plea in this case.

“[A]ppellate court[s] ha[ve] the power to correct and reform a trial court

judgment ‘to make the record speak the truth when [they] ha[ve] the necessary data

and information to do so[] or make any appropriate order as the law and nature of

the case may require.’” Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston

[1st Dist.] 2001, no pet.) (quoting Asberry v. State, 813 S.W.2d 526, 529 (Tex.

App.—Dallas 1991, pet ref’d)). This is true no matter who, or if anyone, has

called the matter to the attention of the appellate court. See French v. State, 830

S.W.2d 607, 609 (Tex. Crim. App. 1992); Dromgoole v. State, 470 S.W.3d 204,

226 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d); see also Asberry, 813

S.W.2d at 529–30 (“The authority of an appellate court to reform incorrect

judgments is not dependent upon the request of any party, nor does it turn on the

question of whether a party has or has not objected in the trial court.”).

Here, the trial court’s written judgment does not accurately comport with the

record in this case in that it states that appellant pleaded “GUILTY” to the offense

of theft. The record, however, reveals that appellant actually pleaded “not guilty.”

Accordingly, we modify the trial court’s judgment in regard to appellant’s

“[p]lea to [o]ffense” to reflect that appellant entered a plea of “NOT GUILTY.”

10 See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim.

App. 1993).

Conclusion

We affirm the judgment of the trial court as modified.

Julie Countiss Justice

Panel consists of Chief Justice Radack and Justices Goodman and Countiss.

Do not publish. TEX. R. APP. P. 47.2(b).