Opinion issued July 30, 2015
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-14-00395-CR ——————————— JOSHUA WILLIAMS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court Harris County, Texas Trial Court Case No. 1390412
MEMORANDUM OPINION
A jury convicted appellant, Joshua Williams, of felony theft, and the trial
court assessed his punishment at confinement for seven years. In his sole issue on
appeal, appellant argues that the evidence was insufficient to demonstrate that he had possession of the stolen property, as required to prove that he committed the
offense of theft.
We affirm.
Background
On June 4, 2014, at approximately 1:00 in the afternoon, the alarm company
of the complainant, Herbert Butrum, notified him that his home had been broken
into. The alarm company also notified the police, and officers were promptly sent
to the residence. Butrum arrived at his home at approximately 1:30 and observed
that someone had “entered through the back bay window” and that the window
“had been broken out,” leaving glass “shattered all over our den couch.” He also
observed that glass had been broken out of his back door. Butrum testified that he
had a safe and that the keypad had been kicked in; however, nothing was missing
from the safe because it could not be opened by disabling the key pad. Butrum
determined that an antique jewelry box in which he kept his cufflinks, his iPad, and
one of the pillowcases from his bed had been taken from his home.
Meanwhile, approximately six miles from Butrum’s home, officer A. Olvera
with the Houston Police Department was working undercover at Sharpstown Mall,
responding to requests from complainants and generally keeping an eye out for any
suspicious activity. That afternoon, Officer Olvera observed two individuals
behaving in a manner that he described as suspicious. Officer Olvera stated that he
2 “saw two persons coming out of the mall at a very high rate of speed” and getting
into the back seat of a tan Buick sedan, which then “took off very fast.” Officer
Olvera ran a check on the tan Buick’s license plate and learned that there were
“city warrants” and “a prisoner’s hit” associated with the vehicle. He followed the
Buick for a short time and observed the driver commit “a couple [of driving]
infractions.” He called for a marked unit, and that unit conducted a traffic stop. In
court, Officer Olvera identified appellant as one of the individuals who left the
mall walking very quickly and rode off in the Buick at a high rate of speed. He
indicated that Curtis Perry, appellant’s friend, was the other individual.
Officers M. Grossbard and D. Culver were the officers who conducted the
traffic stop on the Buick. Officer Culver testified that he was present at the
Sharpstown Mall that day because police had received information “that
individuals were going to [two pawn shops] at the Sharpstown Mall and they were
trying to pawn jewelry items that could be possibly stolen and [Office Olvera, the
case agent,] was looking into that information.” Officer Culver testified that while
he was in the “target area” at the south side of the mall, where the pawn shops
were located, Officer Olvera contacted Officer Grossbard and him about suspicious
individuals. Based on Officer Olvera’s information, he and Officer Grossbard
located the Buick and pulled it over.
3 Officers Grossbard and Culver observed a total of four people in the vehicle,
which they determined was registered to appellant’s mother. Officer Grossbard
identified Hadren Williams, appellant’s brother, as the driver of the vehicle, and he
observed that appellant was sitting in the rear driver’s-side seat. Curtis Perry was
the other backseat passenger, and Lorena Jones, appellant’s ex-girlfriend, was
riding in the front passenger seat. Officers Grossbard and Culver observed that
there were “pillowcases and other articles sitting right next to [appellant],” which
Officer Grossbard found suspicious based on his knowledge that burglars
sometimes use pillowcases in the course of taking property from a home. He also
detected a “strong odor of marijuana coming from inside the vehicle,” which he
believed gave him probable cause to detain all four people and search the Buick.
Officers Grossbard and Culver searched the vehicle and found multiple
pillowcases and other items, including several jewelry boxes. Officer Grossbard
asked the Buick’s occupants whether the pillowcases or their contents belonged to
them. Appellant answered “that he didn’t know what [Officer Grossbard] was
talking about and that it did not belong to him.” None of the vehicle’s occupants
indicated that the property belonged to them or that they owned it—they all
indicated that they did not know anything about the pillowcases and other property.
Officer Grossbard testified that some of the pillowcases and other items were
sitting on the seat “right next to [appellant]” or were “on the floor right next to his
4 feet.” The officers also noticed that appellant’s hands began to shake while they
were searching the Buick, and appellant later complained about having chest pains
and was examined by EMS at the scene before being released back to the police.
Officer Olvera approached the Buick after Officers Grossbard and Culver
had taken appellant and the other three occupants into custody. Officer Olvera
observed “pillowcases full of items” on the floor board where appellant had been
sitting and on the back seat next to where appellant had been sitting. Officer
Olvera stated that officers also discovered one pillowcase that contained several
pairs of gloves. Another pillowcase contained an iPad “that was still receiving
messages from the alarm company.” He contacted the alarm company and was
able to determine that the iPad belonged to Butrum. Butrum arrived at the scene
where the Buick had been pulled over and identified the items that belonged to
him, including a jewelry box, some cufflinks, and the iPad.
All four of the Buick’s passengers were arrested for theft. Officer Grossbard
testified that Butrum did not want to risk damaging his iPad by having it dusted for
fingerprints. Officer Grossbard further testified that he and the other officers did
not believe they would get any usable fingerprints from the other items in the
Buick, both because of the types of surfaces involved and because it appeared that
the passengers had been using gloves to touch the items. Officer Grossbard further
5 testified regarding why he believed all four people in the Buick were involved in
the theft:
In my experiences on burglary cases, normally when they, what we call a crew of people, when they go and burglarize a house, they use anywhere from three to four to five people. They may use two people as lookouts on the corner, then another two may go in the house and burglarize, so it’s never just one or two guys; it’s multiple people doing multiple things to successfully complete the burglary. So in this case, it was four people in a car with stolen property from a house that was just burglarized and nobody wanted to acknowledge the fact that those items were theirs, so that tells me that everybody that’s in the car is more than likely responsible for it.
He reiterated that the passengers were all in the vehicle together shortly after the
burglary occurred and were all within arms-reach of stolen property, including
several jewelry boxes and other items.
At trial, the State also presented the testimony of Brittany Jacobs, Lorena
Jones’s sister. She testified that Jones and appellant had grown up together and
had dated in the past. Jacobs also stated that she always saw appellant driving a
tan or gold Buick sedan and that she believed it was his car. Jacobs testified that
sometime after lunch on the day of the theft appellant called Jones and asked her to
come meet him, so Jacobs drove Jones to Sharpstown Mall to meet appellant.
Jacobs observed her sister walk up to appellant’s Buick only to realize that no one
was in the car at that time. Jones then called appellant, and he told her he was in
the mall. At that point, Jones went into the mall and Jacobs left. Jacobs stated that
that was the last time she saw her sister that day. Jacobs further stated that she
6 knew Curtis Perry was a friend of appellant’s, that Hadren Williams was
appellant’s brother, and that they were known to spend time together.
The jury was instructed that it could find appellant guilty if it found beyond
a reasonable doubt that appellant unlawfully appropriated property, including
Butrum’s jewelry box, iPad, and cufflinks, “by acquiring or otherwise exercising
control over [it].” The jury was also instructed on the law of parties and was
instructed that it could find appellant guilty if it found beyond a reasonable doubt
that “Hadren Williams and/or Curtis Perry and/or Valencia Jacobs also known as
Lorena Jones, did then and there unlawfully appropriate, by acquiring or otherwise
exercising control over [Butrum’s property]” and that appellant, “with the intent to
promote or assist the commission of the offense, if any, solicited, encouraged,
directed, aided or attempted to aid Hadren Williams and/or Curtis Perry and/or
Valencia Jacobs also known as Lorena Jones to commit the offense.”
The jury found appellant guilty of theft. The trial court assessed his
punishment at seven years’ confinement. This appeal followed.
Sufficiency of the Evidence
In his sole issue on appeal, appellant argues that the evidence was
insufficient to demonstrate that he had possession of the stolen property.
7 A. Standard of Review
When reviewing the sufficiency of the evidence, we view all of 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. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that
Jackson standard is only standard to use when determining sufficiency of
evidence). The jurors are the exclusive judges of the facts and the weight to be
given to the testimony. Bartlett v. State, 270 S.W.3d 147, 150 (Tex. Crim. App.
2008). A jury, as the sole judge of credibility, may accept one version of the facts
and reject another, and it may reject any part of a witness’s testimony. See Sharp
v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); see also Henderson v.
State, 29 S.W.3d 616, 623 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d)
(stating that jury can choose to disbelieve witness even when witness’s testimony
is uncontradicted).
We may not re-evaluate the weight and credibility of the evidence or
substitute our judgment for that of the fact finder. Williams v. State, 235 S.W.3d
742, 750 (Tex. Crim. App. 2007). We afford almost complete deference to the
jury’s credibility determinations. See Lancon v. State, 253 S.W.3d 699, 705 (Tex.
Crim. App. 2008). We resolve any inconsistencies in the evidence in favor of the
8 verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); see also
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (“When the record
supports conflicting inferences, we presume that the factfinder resolved the
conflicts in favor of the prosecution and therefore defer to that determination.”).
Circumstantial evidence is as probative as direct evidence in establishing guilt, and
circumstantial evidence alone can be sufficient to establish guilt. Sorrells v. State,
343 S.W.3d 152, 155 (Tex. Crim. App. 2011) (quoting Clayton, 235 S.W.3d at
778). “Each fact need not point directly and independently to the guilt of the
appellant, as long as the cumulative force of all the incriminating circumstances is
sufficient to support the conviction.” Hooper v. State, 214 S.W.3d 9, 13 (Tex.
Crim. App. 2007).
“A person commits [the] offense [of theft] if he unlawfully appropriates
property with intent to deprive the owner of property. TEX. PENAL CODE ANN.
§ 31.03(a) (Vernon Supp. 2014). A person unlawfully appropriates property if “it
is without the owner’s effective consent” or “the property is stolen and the actor
appropriates the property knowing it was stolen by another.” Id. § 31.03(b)(1)–(2).
“A person is criminally responsible as a party to an offense if the offense is
committed by his own conduct, by the conduct of another for which he is
criminally responsible, or by both.” Id. § 7.01(a) (Vernon 2011). “A person is
criminally responsible for an offense committed by another if,” with “intent to
9 promote or assist the commission of the offense, he solicits, encourages, directs,
aids, or attempts to aid the other person to commit the offense.” Id. § 7.02(a)(2)
(Vernon 2011). In determining whether the accused acted as a party, “the court
may look to events occurring before, during, and after the commission of the
offense and may rely on actions of the defendant that show an understanding and a
common design to do the prohibited act.” Ransom v. State, 920 S.W.2d 288, 302
(Tex. Crim. App. 1994).
If an accused is found in possession of recently stolen property and, at the
time of his arrest, fails to make a reasonable explanation showing his honest
acquisition of the property, the jury may draw an inference of guilt. Hardesty v.
State, 656 S.W.2d 73, 76 (Tex. Crim. App. 1983); Uyamadu v. State, 359 S.W.3d
753, 760 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). To support an
inference of guilt from the sole circumstance of possession of stolen property, the
State must first establish that the defendant’s possession was personal, recent,
unexplained, and involved a distinct and conscious assertion of right to the
property. Sutherlin v. State, 682 S.W.2d 546, 549 (Tex. Crim. App. 1984).
“Generally, the shorter the interval between the theft and the possession, the
stronger the inference,” although cases will vary based on factors such as the ease
with which the property can be transferred. Naranjo v. State, 217 S.W.3d 560, 571
(Tex. App.—San Antonio 2006, no pet.).
10 Merely being a passenger in a vehicle where stolen goods are found is not
sufficient to allow an inference of guilt. See Jackson v. State, 645 S.W.2d 303, 306
(Tex. Crim. App. 1983) (holding that being passenger in vehicle alone was not
sufficient to show personal possession of, or distinct and conscious right to, stolen
goods). Nevertheless, circumstantial evidence alone can support a permissive
inference of personal possession of recently stolen items. See Louis v. State, 159
S.W.3d 236, 247 (Tex. App.—Beaumont 2005, pet. ref’d) (noting that inference of
possession was rational when appellant was in close proximity to stolen property).
B. Analysis
Appellant argues that the State failed to present sufficient evidence that he
“exhibited personal possession over the property or a distinct and conscious
assertion” of right to the property. Appellant argues that his mere proximity to the
stolen property, without additional evidence connecting him to the theft, is
insufficient. He argues that the State failed to present evidence connecting him to
the stolen goods beyond his mere presence as a passenger in the vehicle where
Butrum’s property was recovered. We disagree.
Here, appellant was arrested after police pulled over the vehicle in which he
was a passenger approximately six miles away from Butrum’s residence.
Appellant and the three other people in the vehicle were spotted by police the same
afternoon that Butrum’s alarm company reported a break-in at his residence. The
11 vehicle contained all of the items that Butrum reported stolen, including his iPad,
which was displaying a message from Butrum’s alarm company. Some of the
items, including a jewelry box and a pillowcase containing stolen property, were
located within arms-reach of appellant.
The record contains sufficient evidence that appellant’s possession was
personal. Officers testified that a jewelry box was on the seat next to appellant and
that one of the pillowcases containing stolen property was right by appellant’s feet.
The stolen property was in plain view in the vehicle, was proximate to and
accessible by appellant, and was found in the enclosed space of the vehicle that
appellant frequently drove and in which appellant was a passenger at the time of
his arrest. See Louis, 159 S.W.3d at 247 (noting that inference of possession was
rational when appellant was in close proximity to stolen property); Markham v.
State, 761 S.W.2d 553, 560 (Tex. App.—San Antonio 1988, no pet.) (“The type of
evidence necessary to show that the possession [in a theft case] is personal and
involves a distinct and conscious assertion of right to the property is not unlike that
which would be used in showing possession in a drug case[.]”) (quoting 5 TEX.
CRIM. PRAC. GUIDE § 126.01[3]); see also Evans v. State, 202 S.W.3d 158, 161–62
& n.12 (Tex. Crim. App. 2006) (holding that “affirmative links” or other evidence
beyond mere presence that establishes accused’s connection to contraband include
whether contraband was in plain view, accused’s proximity to and accessibility of
12 contraband, whether accused owned or had right to possess place where
contraband was found, and whether contraband was found in enclosed space).
Officers Olvera, Grossbard, and Culver all testified that there were multiple
jewelry boxes and pillowcases containing property found in the Buick and that no
one, including appellant, could explain the presence of those items. See Evans,
202 S.W.3d at 162 & n.12 (stating that possession of other contraband at time of
arrest is also evidence connecting accused to contraband); see also Barnes v. State,
520 S.W.2d 401, 403 (Tex. Crim. App. 1975) (holding that unexplained possession
of stolen property is sufficient to sustain conviction for theft). The officers also
testified that appellant’s hands began to shake while they conducted their
investigation and that he later complained about having chest pains and was
examined by EMS before being released back to the police. See Evans, 202
S.W.3d at 162 & n.12 (stating that “whether the defendant made furtive gestures”
and engaged in conduct indicating “consciousness of guilt” are additional
affirmative links connecting accused with contraband). Thus, the record contains
evidence showing that appellant was more than a mere passenger in the car in
which police found the stolen property, and a jury could reasonably infer from the
evidence that appellant had personal possession of the stolen property and that his
possession involved a distinct and conscious assertion of right to the property. See
Sutherlin, 682 S.W.2d at 549.
13 Appellant’s possession of Butrum’s stolen property was also recent and
unexplained. See id. Butrum’s property had been reported stolen the same
afternoon that appellant and Perry raised Officer Olvera’s suspicion while exiting
Sharpstown Mall, approximately six miles from Butrum’s home. See Naranjo, 217
S.W.3d at 571 (holding that shorter interval between theft and possession creates
stronger inference); see also Alexander v. State, 340 S.W.2d 493, 494 (Tex. Crim.
App. 1960) (holding that accused’s unexplained possession of stolen goods within
several hours after theft was “recent” and supported conviction for theft);
Bernadett v. State, 317 S.W.2d 747, 748 (Tex. Crim. App. 1958) (holding that
when evidence “clearly shows that the house in question was burglarized by
someone,” evidence of appellant’s unexplained possession of property within forty
minutes after theft was discovered was sufficient to sustain jury’s verdict). No one
in the Buick, including appellant, provided any explanation for the presence of the
stolen items in the vehicle. However, Officers Olvera and Grossbard testified that
appellant and Perry were leaving the area of Sharpstown Mall where several
pawnshops were located, and the officers testified that they had received and were
investigating reports that those pawn shops bought stolen jewelry.
Given this evidence, the jury could have reasonably drawn an inference that
appellant possessed the stolen items and that his possession was personal, recent,
unexplained, and involved a distinct and conscious assertion of a right to the
14 property. See Sutherlin, 682 S.W.2d at 549; see also Sorrells, 343 S.W.3d at 155
(holding that “circumstantial evidence is as probative as direct evidence in
establishing guilt” and that “circumstantial evidence alone can be sufficient to
establish guilt”).
Appellant argues that his failure to use the property for personal gain is an
indicator that he had no personal control over it. Again, we disagree. Here,
appellant was found in possession of Butrum’s stolen property the same afternoon
Butrum’s alarm company reported the break-in, making it unlikely that appellant
had time to use the property for his own gain. The case appellant relies upon to
support his assertion, Christensen v. State, 240 S.W.3d 25 (Tex. App.—Houston
[1st Dist.] 2007, pet. ref’d), is distinguishable.
In Christensen, the appellant was accused of theft for commingling charity
funds with his union’s general funds, and this Court considered whether the
appellant had used the money for personal gain in examining the evidence
demonstrating his intent to commit theft. Id. at 31–32. This Court concluded that
the evidence was insufficient to support the appellant’s conviction for theft because
there was no evidence that he had the criminal intent to commit theft. Id. at 36–37.
The present case is materially different, both factually and legally. Here, the
evidence established that someone broke into Butrum’s home and removed his
possessions without his permission, whereas, in Christensen, the alleged theft was
15 committed by misrepresentation during a fundraiser and the commingling of funds.
The legal question in Christensen was one of intent, not, as here, one of
possession. Thus, appellant’s reliance on Christensen is unavailing in light of the
evidence demonstrating his possession of the stolen property, as discussed above.
Appellant also argues that the evidence is insufficient because there was no
forensic evidence—such as DNA, fibers, or fingerprints—connecting him to
Butrum’s home or to the stolen goods. He also argues that there were no
eyewitnesses or surveillance videos placing him at the scene of the burglary or
showing him holding or using the stolen property. However, such evidence is not
required to support a conviction. See Sorrells, 343 S.W.3d at 155 (holding that
circumstantial evidence is as probative as direct evidence in establishing guilt, and
circumstantial evidence alone can be sufficient to establish guilt).
Finally, appellant argues that the evidence is insufficient because “[t]he sum
of the evidence presented by the State was that [he] was found in a car that
contained stolen property and that a burglary had occurred at the complainant’s
residence earlier in the day.” Even taking as true appellant’s assertion that the
evidence demonstrates only that “he was found in a car that contained stolen
property” linked to a burglary that occurred earlier that same day, we conclude that
the evidence supports appellant’s conviction. The jury charge included
instructions on the offense of theft and on the law of parties and permitted the jury
16 to find appellant guilty of theft if he acted with “the intent to promote or assist the
commission of the offense” by soliciting, encouraging, directing, aiding, or
attempting to aid any of the other three people in the Buick in committing the theft.
See TEX. PENAL CODE ANN. § 7.02(a)(2).
The behavior of the Buick’s occupants both before and after the commission
of the offense indicated an understanding between them and a common design to
commit theft. See Ransom, 920 S.W.2d at 302. Brittany Jacobs testified that
sometime after lunch, appellant called Lorena Jones and asked her to meet him at
Sharpstown Mall. When Jacobs and Jones arrived at the mall, appellant was in the
mall and the Buick, which was registered to appellant’s mother and which
appellant himself was regularly seen driving, was empty. At around 1:00 p.m.,
Butrum’s alarm company reported a break-in at his residence. Officer Olvera
testified that he saw appellant and Perry walking rapidly out of an area of the
Sharpstown Mall that had several pawnshops later that same afternoon. Appellant
and Perry got into the back of the Buick, with Hadren Williams driving and Lorena
Jones in the front passenger seat, and Hadren Williams then drove off very quickly.
Officers followed the Buick for a few minutes and then pulled the car over,
discovered property belonging to Butrum, and subsequently arrested appellant,
Jones, Perry, and Hadren Williams. Thus, very little time elapsed between
appellant’s call to Jones asking her to meet him, the burglary of Butrum’s home,
17 and the recovery of Butrum’s property and the arrests, indicating that appellant, his
brother, Perry, and Jones acted together to commit the offense.
Furthermore, the evidence indicates that appellant was not a “mere
passenger” in the Buick, but that he had established relationships with the other
occupants: Hadren Williams is his brother, and Jacobs testified that Perry was a
known friend and associate of appellant’s and that appellant and Jones had been
romantically linked. The four occupants of the Buick likewise demonstrated a
common design and understanding among them when all four of them told police
officers that they had no idea how the jewelry boxes, pillowcases, and other
property came to be in the Buick—none of them claimed ownership of the property
or provided any explanation for its presence in the car. Finally, Officer Grossbard
testified that, in his experience, burglaries were often committed using a “crew” of
three to five people, two of whom would provide a look out, and two or more who
would use pillowcases to remove property from a home and quickly escape. Thus,
the State presented sufficient evidence that appellant acted with the other people in
the Buick based on a common understanding and design to commit the theft,
permitting his conviction as party to the offense. See TEX. PENAL CODE ANN.
§ 7.02(a); Ransom, 920 S.W.2d at 302.
We hold that the evidence was sufficient to allow the jury to conclude
beyond a reasonable doubt that appellant committed theft, either as a primary actor
18 or as a party. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Adames, 353
S.W.3d at 859.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes Justice
Panel consists of Justices Keyes, Bland, and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).