COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-13-00393-CR
RASHAD AZMI ELQUTOB APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY TRIAL COURT NO. 1334940R
MEMORANDUM OPINION 1
Rashad Azmi Elqutob brings eight points challenging his convictions and
respective ten- and five-year sentences for engaging in organized criminal
activity and for theft by receiving stolen property valued at more than $200,000.
See Tex. Penal Code Ann. § 31.03(b)(2) (West Supp. 2014). The majority of his
points concern his contention that, because of the wording of the indictment, the
1 See Tex. R. App. P. 47.4. jury charge, or both, he was not actually convicted of any offense under the penal
code. In his final point, he argues that the trial court abused its discretion by
excluding evidence of a witness’s prior criminal history. We affirm.
Background
The State initially charged appellant with three counts relating to his
alleged participation in a scheme to buy and sell stolen cell phones. However,
the State later waived count one, trying appellant on only counts two and three,
which the parties agreed to renumber to counts one and two. The first count
alleged that appellant,
WITH THE INTENT TO ESTABLISH, MAINTAIN OR PARTICIPATE IN THE PROFITS OF A COMBINATION[,] . . . COMMITTED THEFT OVER $200,000 BY UNLAWFULLY APPROPRIATING, BY ACQUIRING OR OTHERWISE EXERCISING CONTROL OVER, PROPERTY OF THE VALUE OF MORE THAN TWO HUNDRED THOUSAND DOLLARS FROM THE OWNER OF THE PROPERTY WITH THE INTENT TO DEPRIVE THE OWNER OF THE PROPERTY; AND SAID DEFENDANT APPROPRIATED THE PROPERTY BELIEVING IT WAS STOLEN BY ANOTHER, PURSUANT TO ONE SCHEME AND CONTINUING COURSE OF CONDUCT THAT BEGAN ON OR ABOUT APRIL THE 7TH, 2009 AND CONTINUED UNTIL ON OR ABOUT OCTOBER THE 10TH, 2010 AND THE OWNER, QUANTITY, AND PROPERTY ARE LISTED BELOW:
MIKE HOPKINS THE FOLLOWING QUANTITY AND TYPE OF CELL PHONES:
[Listing 31 different types of cell phones with a different quantity of each]
MONIQUE HEBERT-LOFGREN THE FOLLOWING QUANTITY AND TYPE OF CELL PHONES:
[Listing 5 different types of cell phones in differing quantities]
2 MANUAL CANGAS THE FOLLOWING QUANTITY AND TYPE OF CELL PHONES:
50 BLACKBERRY BOLD
In the second count, the State alleged that appellant,
UNLAWFULLY APPROPRIATE[D], BY ACQUIRING OR OTHERWISE EXERCISING CONTROL OVER, PROPERTY OF THE VALUE OF MORE THAN TWO HUNDRED THOUSAND DOLLARS FROM THE OWNER OF THE PROPERTY WITH THE INTENT TO DEPRIVE THE OWNER OF THE PROPERTY; AND SAID DEFENDANT APPROPRIATED THE PROPERTY BELIEVING IT WAS STOLEN BY ANOTHER,
PURSUANT TO ONE SCHEME AND CONTINUING COURSE OF CONDUCT THAT BEGAN ON OR ABOUT APRIL THE 7TH, 2009 AND CONTINUED UNTIL ON OR ABOUT OCTOBER THE 10TH, 2010 AND THE OWNER, QUANTITY, AND PROPERTY ARE LISTED BELOW:
[Listing the same types, quantities and owners of cell phones as alleged in Count One].
The language in the jury charge tracked the language above from the
indictment. The jury convicted appellant of both counts.
Points on Appeal
Seven of appellant’s eight points are related to the State’s word choice in
the indictment and jury charge. They focus primarily on the variance between
the language used in the indictment and charge to describe the theft offense
(also the underlying offense for the engaging in organized criminal activity
count)––whether appellant “appropriated the property believing it was stolen by
another”––and the language used in the penal code definition of theft––providing
3 that appropriation of property is unlawful if, among other things, “the actor
appropriates the property knowing it was stolen by another.” Id. (emphasis
added). Appellant contends that “knowing” and “believing” have different
definitions; in other words, appellant argues that by convicting him of offenses
alleging that he appropriated property he only “believed” was stolen, the jury did
not convict him of any offense under the penal code.
Whether Indictment Alleged An Offense
In his first and second points, appellant contends that the indictment is void
for using the word “believing” instead of “knowing” in alleging the offenses. The
State contends that appellant failed to preserve any error related to the
substance or form of the indictment because he did not object to the language
used in the indictment in the trial court.
A defendant who does not object to defects of form or substance in an
indictment before trial fails to preserve any complaint about such defects. Teal v.
State, 230 S.W.3d 172, 176–77 (Tex. Crim. App. 2007). But an instrument that
does not meet the constitutional requisites of an indictment fails to confer subject
matter jurisdiction on the trial court; thus, a charging instrument that does not
meet the constitutional definition of an indictment may be challenged for the first
time on appeal. Smith v. State, 309 S.W.3d 10, 16–18 (Tex. Crim. App. 2010);
Teal, 230 S.W.3d at 179. The State characterizes appellant’s argument as a
complaint that the indictment fails to allege a required element of theft under the
penal code. See Studer v. State, 799 S.W.2d 263, 271–72 (Tex. Crim. App.
4 1990) (holding that a charging instrument may be an indictment as contemplated
by the Texas constitution even if fails to charge each element of an offense). But
although appellant does state in his brief that because the indictment alleged an
incorrect mental state, it “failed to allege an element of the offense of theft,” he
also contends that the indictment is void because it wholly fails to allege an
offense. See Cook v. State, 902 S.W.2d 471, 477 (Tex. Crim. App. 1995)
(holding that a charging instrument must allege (1) a person and (2) the
commission of an offense to be an indictment under the constitution).
The proper test to determine if a charging instrument alleges an offense is
whether the allegations in it are clear and specific enough so that a person can
identify the offense alleged, i.e., the penal statute under which the State intends
to prosecute the defendant. Teal, 230 S.W.3d at 180; Duron v. State, 956
S.W.2d 547, 550–51 (Tex. Crim. App. 1997). If the allegations are sufficiently
clear and specific, the indictment is sufficient to confer subject matter jurisdiction.
Teal, 230 S.W.3d at 180. “Stated another way: Can the trial court (and appellate
courts who give deference to the trial court’s assessment) and the defendant
identify what penal code provision is alleged and is that penal code provision one
that vests jurisdiction in the trial court?” Id.
Section 31.03 of the penal code provides that (1) “[a] person commits an
offense if he unlawfully appropriates property with intent to deprive the owner of
property,” (2) that “[a]ppropriation of property is unlawful if . . . the property is
stolen and the actor appropriates the property knowing it was stolen by another,”
5 and (3) that such an offense is “a felony of the first degree if the value of the
property stolen is $200,000 or more.” Tex. Penal Code Ann. § 31.03(a), (b)(2),
(e)(7). Comparing the wording of this statute and the wording of the two counts
in the indictment, we conclude that––regardless of how appellant has
characterized his argument––he is essentially complaining that the indictment
used an incorrect word to describe the mens rea of the alleged offenses. One
can discern from the wording of the indictment that the State is alleging in both
counts that (1) appellant (2) with the intent to deprive the complainants of cell
phones (3) unlawfully appropriated those cell phones (4) which were valued at
more than $200,000 and (5) that he thought another person had stolen the cell
phones. The code of criminal procedure, like the Texas Constitution, does not
require an indictment to directly track the wording used in the penal code to
describe an offense. See Tex. Code Crim. Proc. Ann. art. 21.17 (West 2009)
(“Words used in a statute to define an offense need not be strictly pursued in the
indictment; it is sufficient to use other words conveying the same meaning, or
which include the sense of the statutory words.”). We conclude and hold that the
indictment––by alleging that appellant unlawfully appropriated property he
believed to be stolen––was sufficiently clear and specific to allege the offenses in
counts one and two. Thus, the indictment is not constitutionally defective such
that appellant was relieved of the responsibility to object to its use of the word
“believing” rather than “knowing,” and appellant’s complaint about the wording of
6 the indictment was not preserved for appeal. We overrule appellant’s first and
second points.
Whether Material Variance Renders Conviction Infirm
In his sixth point, appellant contends that there is a fatal variance between
the language of the indictment, the jury charge, and the statute; thus, according
to appellant, the evidence is insufficient to support his convictions. However,
rather than explaining why the evidence adduced at trial does not support the
convictions under a hypothetically correct jury charge, appellant argues that the
evidence is insufficient “because the hypothetically correct jury charge is not
supported by the indictment.” This is not the standard of review that we must
follow.
To determine whether the State has met its burden under Jackson v.
Virginia to prove a defendant guilty beyond a reasonable doubt, we compare the
elements of the crime as defined by the hypothetically correct jury charge to the
evidence adduced at trial. Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App.
2014). A hypothetically correct jury charge is one that “accurately 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. (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). The
law as authorized by the indictment consists of the statutory elements of the
offense and those elements as modified by the indictment. Id.
7 There are two types of variances in an evidentiary-sufficiency analysis:
material variances and immaterial variances. Id. at 9. Immaterial variances do
not affect the validity of a criminal conviction; thus, a hypothetically correct jury
charge need not incorporate allegations that would give rise to only immaterial
variances. Id. But a material variance renders a conviction infirm, and the only
remedy is to render an acquittal. Id.
Here, a hypothetically correct charge would have asked the jury in both
counts whether appellant unlawfully appropriated property “knowing” it was
stolen by another. See Tex. Penal Code Ann. § 31.03(b)(2). Appellant contends
that by charging him with unlawfully appropriating stolen property “believing” it
was stolen by another, the indictment modified the hypothetically correct jury
charge to change the mens rea of the offenses so that the State had to prove
appellant committed the offense of theft as set forth in section 31.03(b)(3) of the
penal code, which provides that appropriation of property is unlawful if “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)(3). Although we
agree that the evidence does not support convictions for theft as defined in penal
code section 31.03(b)(3) 2 or engaging in organized criminal activity based on the
same theft offense, we do not agree that the evidence is insufficient to support
2 As appellant states in his brief, “As the record demonstrates the facts alleged, offense charged, and jury charge do not fit in this category.”
8 his convictions based on the definition of theft in penal code section 31.03(b)(2),
according to the hypothetically correct jury charge as further defined by the
indictment.
The penal code provides that “[a] person acts knowingly, or with
knowledge, with respect to the nature of his conduct or to circumstances
surrounding his conduct when he is aware of the nature of his conduct or that the
circumstances exist.” Id. § 6.03(b) (West 2011). “Believe” has been defined as
“to accept as the truth; to take as true, real”; or “to have confidence in a promise
or statement of (another person).” Flowers v. State, 890 S.W.2d 906, 916 (Tex.
App.––El Paso 1994, no pet.) (quoting Webster’s New Universal Unabridged
Dictionary 169 (1983)); see also Tex. Gov’t Code Ann. § 311.011(a) (West 2013)
(“Words and phrases shall be read in context and construed according to the
rules of grammar and common usage.”); Black’s Law Dictionary 184 (10th ed.
2014) (defining “believe” as “[t]o feel certain about the truth of”).
The Court of Criminal Appeals has held in an indictment-sufficiency case
that “[t]he word ‘knowingly,’ as used in the context that a defendant knowingly
receives property that has been stolen, requires actual subjective knowledge,
rather than knowledge that would have indicated to a reasonably prudent man
that the property was stolen.” Dennis v. State, 647 S.W.2d 275, 280 (Tex. Crim.
App. 1983). But the Court of Criminal Appeals has also held that “[k]nowledge
that property was stolen can be shown by circumstantial evidence.” Chudleigh v.
State, 540 S.W.2d 314, 317 (Tex. Crim. App. 1976).
9 In construing the meaning of the word “know” as used in sections
22.011(b)(3) or (5) of the Penal Code, the First Court of Appeals discussed
section 31.03(b)(3) and held that the ordinary meaning of the word “know”––as
opposed to the statutory definition of “knowingly”––includes what is subjectively
true but also what the actor subjectively “believes” to be true but is untrue. See
Jiminez v. State, 727 S.W.2d 789, 792–93 (Tex. App.––Houston [1st Dist.] 1987,
pet. ref’d). Thus, a person can believe something to be true when it is not true,
but a person can also believe something to be true because it is true. Contrary
to appellant’s contention, then, the use of the word “believes” in the indictment
did not necessarily limit the jury to considering only whether appellant
“possessed knowledge that would have indicated to a reasonably prudent man
that the property was stolen”––in other words, that he believed the phones to be
stolen but they were not––rather than, also, whether appellant subjectively
believed the cell phones were stolen because they actually were.
Appellant contends that the only evidence that could possibly support that
he knew the cell phones were actually stolen is testimony from J.A., an employee
at a Radio Shack kiosk in a Sam’s Club. 3 J.A. testified that he stole new Sprint
3 Appellant states in his brief: “One of the more important State’s witnesses was J.A. (5 R.R. at 180). Mr. J.A. is the only person who testified that he communicated with Appellant about cell phones and that Appellant had any knowledge that any cell phones were stolen; thus, his testimony was vital to this case.” We will use initials to refer to the witness as appellant did in his brief.
10 cell phones 4 intended for a free-phone sales promotion by falsely indicating in the
business’s inventory system that the phones had been given to a customer as
part of the promotion when he had instead appropriated them. One day, J.A.
took several of the stolen BlackBerrys in new packaging to a gas station in
Arlington. He offered to sell the cell phones to several people; some declined,
but appellant agreed to buy them. 5 Over the next month or so, appellant bought
twenty or thirty cell phones from J.A. at the same gas station, meeting him
between ten and fifteen times. 6 J.A. did not tell appellant the phones were
stolen, but at some point, he told appellant that he was getting the phones from
work. 7
Eventually, appellant asked J.A. to get him a different, more expensive
model of phone, and J.A. did so. Also, appellant introduced J.A. to his father and
told J.A. that his father would be buying the phones from now on. J.A. sold
between four to eight phones at a time to appellant’s father. Appellant and his
father both paid cash for the phones and were able to negotiate a lower price for
the phones from J.A. J.A. testified about when the police finally questioned him;
4 Even on cross-examination, J.A. testified unequivocally that he had stolen the cell phones. 5 Specifically, J.A. told appellant, “I got some BlackBerr[y]s for cheap.” 6 J.A. testified that appellant told him, “If you keep them coming, I can keep on buying them.” 7 J.A. had to tell appellant about where he was getting the phones because appellant had started to complain that some of the phones had been locked.
11 he told them, “how [he] met [appellant] and sold him a few phones, and how
[J.A.] was stealing them and . . . was getting them out [of] the system through
Sprint mainly.”
J.A. explained that he stole the phones by either adding them to an
existing customer’s phone line without that customer’s permission or by creating
a new phone line specifically for that phone. After he added the phone to a line,
however, he would change the phone’s ESN 8 in the Sprint computer system so
that the ESN would no longer be associated with a phone line. According to J.A.,
a phone reported stolen or attributed to an existing account for too long without
being used is put on a “hot list,” and the phone is locked. 9 According to J.A.,
both appellant and his father had complained to him that some of the phones
they sold to other people were unusable because they were on a hot list, and
they asked J.A. to fix the problem. This occurred a few times when J.A. had
forgotten to switch the ESN in the system after adding a phone to a line. At the
request of appellant or his father, J.A. would remove the hot listed phone’s ESN
from the existing phone line, so that it would no longer show up on the hot list.
J.A. told both appellant and his father that he would fix the hot list problem with
8 ESN stands for electronic serial number. Each phone is assigned an ESN that is assigned only to that phone and “should never change.” 9 One witness testified that if a cell phone is reported to a provider as being stolen or lost, it cannot then be activated on that company’s network. She further testified that in 2009, the hot list was available to businesses but not the general public.
12 those phones by “get[ting] them out [of] the system.” According to J.A., “Once
they [referring to appellant and his father] couldn’t use them, they knew [the
phones] had a phone number on them.” J.A. had also told appellant’s father to
sell the phones quickly so that they would not end up on the hot list. J.A. said
that appellant and his father bought four more phones “right after” complaining
about other phones J.A. sold them being on the hot list. An investigator who
interviewed J.A. about the stolen phones read part of J.A.’s second statement to
law enforcement: “I met his son [appellant] like two months before I met him. It
was in July. I sold him two phones -- the first two phones. I sold him like 15
more until he finally said, ‘They caught my dad.’”
According to appellant, the jury could only reasonably have inferred from
J.A.’s testimony that a reasonable person would have believed that the phones
were stolen, not that appellant had actual, subjective knowledge that the phones
J.A. was selling him were stolen. However, the jury could have reasonably
inferred from other circumstantial evidence in the record that appellant
subjectively knew the phones were stolen, in other words, that he believed the
phones were stolen and that they actually were stolen. See, e.g., Chudleigh, 540
S.W.2d at 317.
Geoff Neimeth, the former director of security and loss prevention for ATC
Logistics & Electronics, a cell phone distributor for AT&T, testified about his 2009
investigation into missing, new BlackBerry Bold devices at the ATC facility.
According to Neimeth, ATC discovered that over 450 phones that had been
13 logged in as arriving at the facility could not be accounted for. After a thorough
investigation, Neimeth concluded that the phones had been stolen although he
was never able to identify the method by which they were stolen or the person
who took them from the facility. The phones were discovered to be missing in
increments after periodic inventory counts: 19 on March 11, 2009, another 239
on April 7, 2009, another 102 on April 28, 2009, and, finally, another 101 on May
6, 2009. He found at least one of the phones in use, which indicated to him that
it, like the rest of the phones, had been stolen from the facility.
Neimeth searched for sellers of BlackBerry Bold devices and discovered
that appellant was advertising unlocked BlackBerry Bold phones on eBay and
Craigslist. Neimeth explained that when a phone is unlocked, it will work on any
carrier’s network for which it is compatible, not just the carrier from whom the
consumer bought the phone. Neimeth also opined that there is no reason a
legitimate seller of a brand-new, in-the-box cell phone would offer it for sale
unlocked. However, he also admitted on cross-examination that a phone is not
necessarily stolen if it is unlocked.
Manuel Cangas, the security manager for ATC, reported to Neimeth and
assisted with the investigation of the missing phones from ATC’s facility. Cangas
used a list of the missing phones’ serial numbers to search whether any of them
had been activated on a cell provider’s network. Cangas was able to contact one
of the phone users, who had bought his phone from Reemsales, a company run
by appellant. Cangas was also able to determine that appellant’s SIM card had
14 been activated in at least two of the missing phones. 10 Finally, ATC was able to
locate at least six people who had purchased a missing ATC phone from
appellant.
The evidence showed that appellant was an AT&T employee and that he
maintained a cell site for AT&T as a technician. Juan Wallace, a former AT&T
loss prevention investigator, was assigned to investigate the complaint regarding
the BlackBerry devices missing from ATC. Because some of the missing devices
showed evidence of activation with a company-owned AT&T device, Wallace
focused his investigation on “competitive employment and misuse of company
property.” Wallace discovered that appellant had been assigned five company-
owned AT&T devices––including a laptop and BlackBerry––and that he had two
personal employee cell phone numbers with AT&T. Wallace then ran a report on
each of the devices and phone numbers; between May 2005 and 2009, he found
over 1,122 activations on the SIM cards for the company-owned devices issued
to appellant: 564 on the “UMTS Voice” device’s card, 135 on the scanner’s card,
240 on the BlackBerry’s card, 54 on the “Device Testing” unit’s card, and 129 on
the laptop’s card. According to Wallace, “That’s the most activations I’ve ever
10 Cangas explained that when you take a SIM card out of one cell phone, and place it in another, the phone in which the card is placed records the card as an activation. In other words, placing a SIM card in any phone creates a “trail” in that particular phone showing that the SIM card was at one time placed there. The cell phone providers can trace these activations on any of their phones.
15 seen on any one SIM card.” 11 Wallace further found 63 activations on a SIM
card associated with one of appellant’s personal AT&T phone numbers, and 34
activations on the other. Wallace interviewed appellant about the missing
phones in December 2009.
Ralph Wilson, appellant’s supervisor at AT&T, testified that several
different company devices were assigned to appellant. Wilson explained that
appellant was part of a special team of employees who tested new AT&T
devices; however, he also said that someone in appellant’s job would have no
need to be switching SIM cards between five and six times a day. Wilson said
that appellant called him before the interview with Wallace in December 2009
and asked for Wilson’s spare computer, but appellant was not able to get it
before Wilson and appellant were called to AT&T headquarters for the interview.
According to Wilson, appellant was quiet during the interview, seemed
“somewhat nervous,” and would not answer all the questions Wallace asked.
Wilson confirmed that appellant asked Wallace during the interview, “If I . . .
submit my resignation, will this end this discussion?” Wallace confirmed that
appellant did resign during the interview after Wallace asked him where he got
two BlackBerrys he had activated and sold that were missing from ATC.
Appellant told Wallace that he believed he had paid about $400 for each from an
unknown seller on Craigslist.
11 It is difficult to tell from the questioning whether Wallace was referring to the 564 activations or the collective total of activations from all of the devices.
16 Monique Hebert-Lofgren, a loss prevention manager for Radio Shack,
testified that she started an investigation in September 2009 involving
“unauthorized lines being added to people’s accounts.” Sprint notified Radio
Shack of some suspicious deactivations of accounts; Radio Shack ran the ESNs
for those phones in their system to see when they were added into the register at
the time of sale. She was able to trace the activations and deactivations to two
employees, one of whom was J.A. Radio Shack was able to compile a list of the
phones it believed had been stolen by these employees; that list was admitted at
trial. All of Radio Shack’s phones have unique stickers on them identifying them
as Radio Shack phones.
K.P., a former worker at New Breed, a Verizon phone refurbisher, testified
about how she stole phones from the facility where she worked. She said she
would meet appellant and his father at an El Chico restaurant and would sell
them the phones she had stolen. Sometimes she would sell thirty or forty
phones at a time. 12 She thought that the first time she sold about thirty-five
phones to appellant and his father together, and they paid her $1,000. She
typically sold them each phone for “30, 40, or 60,” and they paid her in cash.
After the first meeting, she only met with appellant’s father. They only bought
new phones from her, which she packaged in a shoebox or noodle box. K.P. told
appellant and his father she got the phones from other people.
12 The evidence showed that she stole over 700 phones.
17 K.P.’s daughter, who accompanied her mother to the meetings, testified
that she did not know the phones her mother was selling were stolen. After the
first meeting, though, appellant asked K.P. if she could get more phones “in
bulks.” K.P.’s daughter then became suspicious after her mother started getting
more and more phones in bulk.
An investigator for the Tarrant County District Attorney’s office’s economic
crimes unit testified about how law enforcement was able to link the email
address appellant used for his eBay and Craigslist advertisements to two
companies, Reemsales and Deal Maker, and to two Wells Fargo accounts
associated with appellant. The investigator also assisted in executing a search
of appellant’s father’s home in December 2009 in connection with the
investigation of appellant. The investigator said that the home’s front office had
boxes full of cell phones and that officers found over 1,000 phones there that
day. The officers also found mail addressed to appellant and six checkbooks for
Deal Maker. Although officers did not find any of the Radio Shack phones at the
house, they did find 117 of the missing ATC phones and about 800 of the
Verizon phones that K.P. had stolen; the Verizon phones had stickers on them
specific to the New Breed facility. Authorities also found $20,251 in cash at the
home with a purple sticker on it that said “Rashad.” Officers further seized a
notebook with handwritten lists of phones along with the phones’ serial numbers.
18 They discovered after analyzing the notebook that the IMEI numbers 13 for 115
ATC phones and 49 New Breed phones were listed in the notebook.
At appellant’s residence, which officers searched the same day as his
father’s home, officers seized numerous phones throughout the house. They
found more checkbooks and other records for Deal Maker as well as numerous
SIM cards and appellant’s AT&T-issued equipment. Officers also found a
notebook with phone serial numbers listed in it; the handwriting in the notebook
appears to match that in the notebook found in Arlington. Investigators found
three stolen phones at appellant’s residence: an AT&T phone from the ATC
facility, one Radio Shack phone, and one of the Verizon phones from the New
Breed facility. The State also introduced evidence that the SIM cards for all five
of appellant’s AT&T-issued devices had been placed into each of the phones
they found at his house and that it had to have been done “[q]uite often.”
Investigators also found flash boxes at appellant’s home. Flash boxes are
used for unlocking phones: “Basically, you use these to unlock phones so they
can be used by other carriers. At that time if you were pretty much locked into
contracts with whatever cell phone company you had, if you had one of these,
you could free up your phone to be used on another network.” When asked if
there was “any legitimate reason to have those if you’re a legitimate reseller of
13 An IMEI number is another type of number unique to a particular cell phone.
19 brand new phones,” a Secret Service agent who participated in the investigation
answered, “No.”
In reviewing the business records for Deal Maker, investigators found no
receipts for purchases of phones from March 19 when phones were first
discovered missing at ATC through April 23 when one of those phones was sold
on Craigslist. However, they did find receipts for purchases of many accessories
compatible with those types of phones.
Carl Allen, a former Verizon employee, examined the data from some of
the phones seized pursuant to the warrants. The trial court admitted evidence of
data from some of the phones seized from appellant’s house. One of the text
messages read, “Please sell the bad ESN phones for whatever you can get for
them, and I will take care of you on the rest.” A text exchange between one of
appellant’s numbers and his father’s number reads as follows: “Okay, text me or
the bad ESN -- for the bad ESN numbers. . . . He will take care of it if they are
three only. . . . I need a list of the IMEI numbers for the phones that you need
unlocked. Try to unlock them all first, please, and then if it does not work, just
get me the IMEI numbers.”
Appellant changed his email address after law enforcement searched his
and his father’s homes and began selling phones under the name Wireless
World Warehouse. The evidence showed that although the volume of sales
through appellant’s entities decreased in December 2009, he was still making
20 sales until October 2010, when law enforcement searched his home a second
time.
Appellant admitted that he was the owner of Deal Maker. However,
appellant also testified that his father was running the cell phone business by
himself by the end of 2008. 14 Although there is evidence that appellant’s father
was involved in many of the actual purchases of the phones from J.A. and K.P.,
there was sufficient evidence linking both appellant and his father to the
businesses through which appellant sold the phones on Craigslist and eBay,
including Deal Maker and Reemsales.
Appellant disclaimed any knowledge that the phones he had sold were
stolen. He agreed that he had run into a problem with a phone being hot listed
and had therefore developed a procedure for checking whether a phone was on
a hot list before buying it:
In the cell phone business you got two types of phones. You have CDMA, which is covered by Verizon, Sprint, MetroPCS, and then you got GSM. That’s covered by AT&T, T-Mobile, any company that takes a SIM card.
....
. . . On CDMA phones there is now three things I check before I buy them. I call the company. I ask them if the phone has ever been reported lost or stolen. I asked the phone, if it’s been
14 The State introduced evidence that appellant paid his father a salary and that his father was listed as a contract worker on appellant’s tax return for 2009. Appellant testified that his father’s trusting and “hardheaded” nature caused his father to lose a gas station business, which is why appellant handed over the cell phone business to him.
21 blacklisted. And then the new key question that I never asked before, if the phone has ever been activated on an account and deactivated, which at that time is what those people did.
Appellant also testified that he had trained his father in these procedures
and could not understand why his father would not have followed them
except that he was “hardheaded.”
According to appellant, J.A. called him first; appellant assumed J.A. got his
number from Craigslist. Appellant said he checked out the phones he bought
from J.A. at a Sprint store before buying them. However, appellant testified that
he met with J.A. only three times and bought only six phones. Appellant testified
that he knew Sprint was running an upgrade special and that he bought phones
from lots of customers who were upgrading their phones so they could sell them.
He admitted he bought phones from K.P.’s daughter but said she told him she
had bought the phones from other sellers. Appellant denied ever meeting K.P.
Based on the above, we conclude and hold that there is sufficient evidence
other than appellant’s mere possession of stolen property from which the jury
could have reasonably determined that appellant committed theft by receiving
property that (a) was actually stolen and (b) he subjectively knew was stolen.
See, e.g., Chudleigh, 540 S.W.2d at 317; Pollan v. State, 247 S.W.2d 889, 891–
92 (Tex. Crim. App. 1952) (op. on reh’g); Hart v. State, No. 05-08-01225-CR,
2010 WL 851405, at *5 (Tex. App.––Dallas Feb. 26, 2010, pet. ref’d) (not
designated for publication). We overrule appellant’s sixth point. Because his
22 seventh point alleges that the trial court should have granted him a new trial for
the same reason raised in his sixth point, we overrule his seventh point as well.
Whether Charge Error Harmful
In his third through fifth points, appellant contends that the charge, by
tracking the language of the indictment, improperly instructed the jury, causing
the jury to convict him of behavior that does not constitute an offense. Thus, his
third through fifth points are based on the same arguments he raises in his first,
second, sixth, and seventh points.
The State conceded in its response to appellant’s motion for new trial that
the use of the word “believing” in the jury charge was error. However, because
appellant failed to object to the wording of the charge at trial, we must review the
entire record to determine whether the error caused appellant egregious harm.
Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012); Almanza v. State,
686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g); see Tex. Code Crim.
Proc. Ann. art. 36.19 (West 2006). Here, the court reporter did not record closing
argument or voir dire; 15 thus, we look to the clerk’s record and the recorded parts
of the trial and any pretrial proceedings.
Errors that result in egregious harm are those “that affect the very basis of
the case, deprive the defendant of a valuable right, vitally affect the defensive
15 It is unclear from the court reporter’s notes whether the parties agreed not to have these parts of the trial recorded. Nevertheless, appellant has not raised the lack of their recording as error.
23 theory, or make a case for conviction clearly and significantly more persuasive.”
Taylor v. State, 332 S.W.3d 483, 490 (Tex. Crim. App. 2011). The purpose of
this review is to illuminate the actual, not just theoretical, harm to the accused.
Almanza, 686 S.W.2d at 174.
Appellant’s main argument is that by using the word believing rather than
knowing, the charge lessened the State’s burden of proof: “The heart of
Appellant’s defense was [that he was] not guilty of a theft because he did not
know the cell phones were stolen.” We have explained why the evidence shows
that appellant was not convicted on a lesser burden of proof. Moreover, in
reviewing the entire record for evidence of harm, we note that the clerk’s record
contains numerous Brady notices to appellant’s trial counsel from the State,
many of which relate to evidence suggesting that appellant did not know the
phones he was selling were stolen. Thus, pretrial filings indicate that appellant’s
knowledge or lack thereof would be an issue in the trial. Additionally, the State
attached to its motion for new trial copies of Power Point slides it presented to
the jury during its closing argument, several of which reiterated, “he knew,” with
references to evidence of appellant’s knowledge that the phones were stolen,
such as that he was buying new-in-the-box phones with specific identifying
provider stickers on them for substantially less than what appellant had paid for
new phones from other sellers.
Our review of the appellate record indicates that appellant was not
deprived of a valuable right or the ability to present a defensive theory by virtue
24 of the error in the charge: appellant’s counsel emphasized during trial the extent
of appellant’s father’s participation in buying the phones, and appellant’s own
testimony was mainly focused on his contention that he did not know the phones
were stolen. Indeed, the State contends in its motion for new trial that appellant’s
counsel knew of the jury charge error, allowed it to stand, and pressured the
State to make a misdemeanor plea offer because of the error while the jury was
deliberating. We conclude and hold that the record does not show egregious
harm because of the inclusion of the word “believing” instead of “knowing” in the
charge. We overrule appellant’s third through fifth points.
Whether Impeachment Evidence Improperly Excluded
In his eighth point, appellant challenges the trial court’s ruling that he could
not ask J.A. about a past misdemeanor conviction for marijuana possession.
Although appellant acknowledges that rule of evidence 608(b) generally prohibits
use of a misdemeanor conviction to impeach a witness’s credibility, he urges that
the trial court should have nevertheless allowed him to ask the question because
he proved an exception to rule 608(b)’s general prohibition: that J.A. opened the
door to questioning about his conviction by leaving a false impression about the
extent of his prior criminal history. Tex. R. Evid. 608(b); see West v. State, 169
S.W.3d 275, 278 (Tex. App.––Fort Worth 2005, pet. ref’d).
The following exchange occurred at the beginning of the State’s direct
examination of J.A.:
Q. [J.A.], will you state your name for the jury.
25 ....
Q. [A]re you currently employed?
A. Not anymore.
Q. Have you been charged with a crime? Let’s start with that.
A. Any crime?
Q. This phone stealing engaging in organized crime case.
A. No, ma’am.
Q. In this case you’ve been charged with a crime, right?
A. Okay, convicted. I’m sorry.
Q. You’re not convicted. Charged?
A. Charged, yes. Yes, ma’am. Sorry.
Q. And is that case still pending?
A. Yes, ma’am.
Q. And, in fact, you had court this week, right?
A. Yes. [Emphasis added.]
Appellant claims that this exchange opened the door to an examination of
J.A.’s entire past criminal history. Here, however, the context of the exchange is
limited to whether J.A. was facing charges for stealing the Radio Shack phones,
and neither the State’s questions nor J.A.’s testimony that he had not yet been
convicted or charged creates a false impression that he had a past history of law-
abiding behavior. See Hammett v. State, 713 S.W.2d 102, 106–07 (Tex. Crim.
App. 1986) (examining context of questioning and testimony to determine
26 whether false impression of past law-abiding behavior given); James v. State,
102 S.W.3d 162, 181 (Tex. App.––Fort Worth 2003, pet. ref’d) (“[T]he ‘false
impression’ exception is given a narrow construction by the case law. . . . In
order to open the door to use of prior crimes for impeachment, the witness must
do more than simply imply that he abides by the law; he must in some way
convey the impression that he has never committed a crime.” (citation omitted)).
Accordingly, we conclude and hold that the trial court did not abuse its discretion
by prohibiting appellant from inquiring into J.A.’s past misdemeanor conviction.
We overrule appellant’s eighth point.
Conclusion
Having overruled appellant’s eight points, we affirm the trial court’s
judgments.
/s/ Terrie Livingston
TERRIE LIVINGSTON CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ.
DAUPHINOT, J., concurs without opinion.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: April 9, 2015