Court of Appeals of Texas,

Houston (14th Dist.).

Daniel LOPEZ, Appellant,

v.

The STATE of Texas, Appellee.

Sept. 11, 2003.

Panel consists of Justices YATES, HUDSON, and FROST.

MEMORANDUM OPINION

LESLIE BROCK YATES, Justice.

Appellant Daniel Lopez was convicted by a jury of two counts of felony theft. In seven points of error, appellant claims: (1) the evidence is factually insufficient to support the two convictions; (2) there is insufficient evidence to corroborate the accomplice’s testimony; (3) the State asked improper commitment questions during voir dire; (4) the trial court erred in denying appellant’s request to conduct a voir dire examination of a witness; (5) the State made improper statements about appellant’s prior conviction, and (6) during closing argument, the State improperly attempted to shift the burden of proof. We affirm.

Background

On August 28, 2001, 1200 processors were stolen from the high value parts section of TNT, Compaq Computer Company’s raw materials warehouse. On August 30, 2001, 3000 additional processors were stolen from the same location. Compaq investigator James Hathaway testified that the stolen processors were valued at $793,000.

The warehouse had a complex security system that required all drivers to log in for pick-up of high-end parts. Each truck making a pick-up received an inbound ticket that detailed the date and time of arrival. The ticket also contained information regarding the carrier, rig and trailer number, and the driver’s name and license number. The warehouse also maintained an inbound trailer log containing the same information. Inventory control documents track the goods and are signed by the TNT employee and the driver taking delivery. Appellant, a driver for the trucking company USF Dugan, made frequent cargo pick-ups at the warehouse. Appellant’s accomplices, Spencer Miller, and Bernard Olewe worked at the TNT warehouse.

Factual Sufficiency

In his first and second points of error, appellant claims the evidence is factually insufficient to support his two convictions for theft. We conduct a factual sufficiency review by asking whether a neutral review of all the evidence demonstrates the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000). We may set aside the jury’s verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996). Although we review the fact finder’s weighing of the evidence, and we are authorized to disagree with the fact finder’s determination, our evaluation should not substantially intrude upon the fact finder’s role as the sole judge of the weight and credibility given to witness testimony. Johnson, 23 S.W.3d at 7. In particular, we must defer to the jury’s determination concerning what weight to give contradictory testimonial evidence because resolution often turns on an evaluation of credibility and demeanor, an evaluation better suited for jurors who were in attendance when the testimony was delivered. Id. at 8.

Here, the State presented sufficient evidence to convict appellant on both counts of theft. First, accomplice Spencer Miller testified that he, appellant, and Bernard Olewe planned the thefts. Both Miller and Olewe worked at TNT and solicited appellant because he drove for USF Dugan trucking, which regularly serviced the warehouse. On August 28 and 30, Miller loaded appellant’s USF Dugan truck at the TNT facility with a large shipment of processors. Appellant then left TNT with the processors. Miller was unsure where appellant took them, but testified Olewe had arranged for a buyer to purchase the stolen merchandise. Olewe paid Miller $50,000 for his role in the theft. Miller shared this sum with appellant.

In addition to Miller’s testimony, other evidence supports appellant’s conviction. The TNT warehouse had extensive security procedures that required its personnel to keep detailed information about who made deliveries and picked up orders. Specifically, security personnel tracked truck entry, arrival at the high value area, and all exits from the compound. Appellant worked for USF Dugan, which made frequent pick-ups at the facility. Warehouse documentation showed a USF Dugan truck picked up the stolen property. Further, the August 30 sign-in documents showed the driver as a D. Lopez with driver’s license 16300102 and trailer number 13081. Appellant’s license is 10300102 and his assigned tractor number was 13081. Two TNT security officers, one from each date, identified appellant from a photo spread as the driver of the truck that picked up the stolen property. The State also presented evidence that appellant was undertaking an extensive remodeling effort on his home, indicating that he might recently have received a large influx of money.

Appellant points to both documentary and testimonial evidence to support his contention that the evidence is factually insufficient to support the conviction. For the August 28 thefts, appellant argues the shipping documents fail to link him to the theft. The authorization slip, outbound order, packing list, and outbound checklist contained no connection to appellant other than through Miller’s testimony and signature. However, the authorization form and bill of lading are tied to USF Dugan, the carrier for which appellant works. Documents also show that the August 28 driver was “Thomas Garza,” driving trailer 5873 and arriving at TNT at 10:02 a.m. Appellant began work at 9:33 a.m. that day and was assigned trailer 5873.

Appellant also points to the inability of warehouse employees to identify him in court as the USF truck driver on either August 28 or 30. For the August 28 theft, neither the Burns security supervisor, the warehouse supervisor, inbound gate security guard, nor the warehouse supervisor could identify appellant as the truck driver. The Burns security officer, Geraldine Wilson, selected appellant from a photo spread as the August 28 truck driver, but failed to identify him in court.

Warehouse personnel were also unable to identify appellant as the August 30 driver. The main gate security guard, Cornelio Medina, tentatively identified appellant from a photo spread, but did not make an identification in court. Medina also wrote down the driver’s license number as 10300102 when appellant’s is 16300182. However, Medina described the driver’s license as “kind of old” and having a black smudge on the left hand corner. In addition, he testified the licence photo looked like the truck driver.

Finally, appellant points to his own testimony in support of his argument that the evidence is factually insufficient. He testified that he did not know Spencer Miller and could not explain why Miller and Olewe’s phone numbers were on his cell phone. In addition, he claimed the remodeling was only of his kitchen cabinets and he had purchased only wood for the job. He denied having visited the TNT warehouse or stealing any of the processors.

Although there were no positive in-court identifications, we conclude that the State presented factually sufficient evidence to the jury to show that appellant committed the theft offenses. Accomplice testimony, cell phone records, warehouse documents, and other testimonial evidence connect appellant to the trucking company, the warehouse on the days of the theft, and with the admitted accomplice. Therefore, appellant’s first and second points of error are overruled.

Corroboration Evidence

In his third point of error, appellant claims the evidence was insufficient to corroborate the accomplice testimony of Spencer Miller. “A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.” Tex.Code of Crim. Proc. Ann. art. 38.14 (Vernon 1979). The evidence need not directly connect the defendant to the crime or “that it be sufficient by itself to establish guilt; it need only tend to connect the defendant to the offense.” Cathey v. State, 992 S.W.2d 460, 462 (Tex.Crim.App.1999) (citing Reed v. State, 744 S.W.2d 112, 126 (Tex.Crim.App.1988)). “If the combined weight of the non-accomplice evidence tends to connect the defendant to the offense, the requirement of Article 38.14 has been fulfilled.” Id. (citing Gosch v. State, 829 S.W.2d 775, 777 (Tex.Crim.App.1991)).

“The test for sufficient corroboration is to eliminate from consideration the accomplice testimony and then examine the other inculpatory evidence to ascertain whether the remaining evidence tends to connect the defendant with the offense.” Burks v. State, 876 S.W.2d 877, 887 (Tex.Crim.App.1994). In applying the test for sufficiency, each case must be considered on its own facts and circumstances. Reed v. State, 744 S.W.2d 112, 126 (Tex.Crim.App.1988) (citing Mitchell v. State, 650 S.W.2d 801, 807 (Tex.Crim.App.1983)). All the other facts and circumstances in evidence may be looked to as furnishing the corroboration necessary. Id. (citing Brown v. State, 561 S.W.2d 484 (Tex.Crim.App.1978)). The corroborative evidence may be circumstantial or direct. Id. The combined cumulative weight of the incriminating evidence furnished by the non-accomplice witnesses that tends to connect the accused with the commission of the offense supplies the test. Mitchell v. State, 650 S.W.2d 801 (Tex.Crim.App.1983). It is not necessary that the corroboration directly link the accused to the crime or be sufficient in itself to establish guilt. Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App.2002).

In the absence of the accomplice’s testimony, the State still presented sufficient evidence to convict appellant. As stated previously, evidence placed appellant at the warehouse on the dates in question. Cell phone records revealed calls to the accomplices and warehouse. Even in the absence of accomplice testimony explaining the theft scheme, the evidence directly linked appellant to the crime. Independent evidence corroborated appellant’s presence at the scene on the dates in question when there was no scheduled pick-ups or deliveries. On August 28, warehouse documents recorded a USF Dugan carrier with a trailer number registered to appellant. On August 30, warehouse documents showed D. Lopez signing in with the rig number assigned to him. This evidence tends to connect appellant with the crime such that it sufficiently corroborates the accomplice testimony. We overrule appellant’s third point of error.

Improper Commitment Questions During Voir Dire

In his fourth point of error, appellant claims the State conducted an improper voir dire by attempting to commit the jury to a particular verdict using a hypothetical fact pattern that was factually specific to this case. See Standefer v. State, 59 S.W.3d 177, 181 (Tex.Crim.App.2001) (prohibiting improper commitment questions). An attorney’s questioning during voir dire is proper if it seeks to discover a juror’s views on an issue applicable to the case. See Smith v. State, 703 S.W.2d 641, 643 (Tex.Crim.App.1985). In this case, the prosecutor asked, “do you think you would be okay deciding beyond a reasonable doubt based on paperwork, based on records?” and “if you believe that circumstantial evidence beyond a reasonable doubt that would require more, require that eyewitness …”. The court sustained defense counsel’s objection and gave an instruction ordering the jury to disregard the prosecutor’s questions. Appellant’s motion for mistrial was denied. The issue, therefore, is not whether the State’s voir dire questions called for improper commitment, but whether the instruction to disregard cured any taint.

The voir dire examination allows counsel to assess the desirability of venire members and to select a “competent, fair, impartial, and unprejudiced jury.” Staley v. State, 887 S.W.2d 885, 896-97 (Tex.Crim.App.1994), cert. denied, 514 U.S. 1020, 115 S.Ct. 1366, 131 L.Ed.2d 222 (1995); see also Woodall v. State, 77 S.W.3d 388, 399 (Tex.App.-Fort Worth 2002, pet. ref’d) (reviewing instruction to disregard improper voir dire examination). When reviewing a trial court’s ruling on the propriety of a question asked, we will not disturb the ruling absent an abuse of discretion. Woodall, 77 S.W.3d at 399 (citing Davis v. State, 894 S.W.2d 471, 474 (Tex.App.-Fort Worth 1995, no pet.)); Fuller v. State, 1998 WL 548709 (Tex.App.-Dallas 1998, pet. ref’d); see also Davila v.. State, 2003 WL 21404087, (Tex.App.-Amarillo 2003) (memorandum opinion) (applying Tex.R.App. Proc. 33.1 to appeal challenging commitment questions); Schumacher v. State, 72 S.W.3d 43, 47 (Tex.App.- Texarkana 2001, pet. ref’d) (applying rule to comment during voir dire). Whether the trial court abused its discretion in denying a motion for mistrial depends on whether the court’s instruction to disregard cured any prejudicial effect. Dinkins v. State, 894 S.W.2d 330, 357 (Tex.Crim.App.1995). Generally, an instruction to disregard cures the prejudicial effect except where the comment or question “is clearly calculated to inflame the minds of the jury or so indelibly ingrained in their minds that it is not susceptible to withdrawal or retraction by an instruction to disregard.” Fuller, 1998 WL 548709 see also Dinkins, 894 S.W.2d at 357. Here, the questions were not so inflammatory as to render an instruction to disregard ineffective. Thus, because any possible prejudice was cured by the instruction to disregard, we need not address whether the State’s questions were improper commitment questions. We overrule appellant’s fourth point of error.

Failure to Conduct Voir Dire of State’s Witness

In his fifth point of error, appellant claims the court erred in denying defense counsel’s request to conduct a voir dire examination of the Compaq investigator as an expert witness on the value of the processors. The State examined James Hathaway, the complainant on the indictment and Compaq’s representative, regarding the value of the stolen property. Appellant’s trial counsel sought to conduct a voir dire examination of Hathaway to establish his qualifications for determining the fair market value of the processors. The trial court denied the voir dire request. In reviewing a trial court’s admission or exclusion of evidence we apply an abuse of discretion standard. Goff v. State, 931 S.W.2d 537, 553 (Tex.Crim.App.1996).

Fair market value must be established if the testimony concerning value is given by someone other than the owner. Sullivan v. State, 701 S.W.2d 905, 908 (Tex.Crim.App.1986). It has long been the rule in this State that the owner of property is competent to testify as to the value of his own property. Jones v. State, 814 S.W.2d 801, 803 (Tex.App.-Houston [14th Dist.] 1991, no pet). When an owner testifies, the presumption is that the owner is testifying to an estimation of the fair market value. Id. Thus, the owner may testify as to the fair market value of the property either in terms of purchase price or the cost to him of replacing the stolen properly. Id. If appellant wishes to rebut the owner’s opinion evidence, he must do so through the use of cross- examination and the offer of controverting evidence as to the value of the property. Id.

Here, James Hathaway was named as the complainant and owner in both of the indictments. As such, he need not be taken on voir dire as an expert witness. Appellant’s fifth point of error is overruled.

Improper Statement about Length of Sentence

In his sixth point of error, appellant contends the prosecutor improperly testified to the jury about the length of sentence on a revocation of probation during the guilt-innocence phase. The exchange went as follows:

Q. Let’s talk about your probation.

A. Yes, ma’am.

Q. That is a felony probation, correct?

A. Yes, ma’am.

Q. And you face two to ten years in prison, correct? If this crime is true, your probation can be revoked and you can be sentenced to prison for two to ten years?

A. No, ma’am.

Q. What do you think–you’re on ten years probation, if your probation is revoked, isn’t it true you can go to prison for up to ten years?

A. No. I could–I could do the rest of the time that I haven’t done on probation.

Q. That would be incorrect. You could do up to ten years in prison–

The trial court sustained defense counsel’s objection to the comment about the length of the sentence. The trial court then instructed the jury to disregard the statement, overruling appellant’s motion for mistrial. When the trial court gives a curative instruction rather than granting a motion for mistrial, the question becomes whether the trial court erred in denying the motion for mistrial. Hyett v. State, 58 S.W.3d 826, 832 (Tex.App.-Houston [14th Dist.] 2001, pet. ref’d). “Only when it is apparent that an objectionable event at trial is so emotionally inflammatory that curative instructions are not likely to prevent the jury being unfairly prejudiced against the defendant may a motion for mistrial be granted.” Bauder v. State, 921 S.W.2d 696, 698 (Tex.Crim.App.1996) (en banc); see also Ford v. State, 14 S.W.3d 382, 394 (Tex.App.-Houston [14th Dist.] 2000, no pet.). To the extent that the statement was objectionable, we find the trial court’s instruction was sufficient to cure any prejudice and the prosecutor’s comment did not rise to the level necessary to warrant the granting of a mistrial.

Appellant’s sixth point of error is overruled.

Improper Closing Argument: Shifting Burden

In point of error seven, appellant contends the prosecutor improperly attempted to shift the burden of proof from the State by arguing to the jury that appellant could have presented contradictory evidence. [FN1] Proper jury argument includes four areas: (1) summation of the evidence presented at trial, (2) reasonable deduction drawn from that evidence, (3) answer to the opposing counsel’s argument, or (4) a plea for law enforcement. McFarland v. State, 845 S.W.2d 824, 844 (Tex.Crim.App.1992) (en banc), cert. denied, 508 U.S. 963, 113 S.Ct. 2937, 124 L.Ed.2d 686 (1993). To constitute reversible error the argument must be manifestly improper or inject new, harmful facts into the case. Jackson v. State, 17 S.W.3d 664, 673 (Tex.Crim.App.2000); Gaddis v. State, 753 S.W.2d 396, 398 (Tex.Crim.App.1988).

FN1. The statements made during the State’s final argument were:

He had a reason to lie, and there is nothing to substantiate what he’s saying. Something to substantiate every one of these guards, their identifications. And he wants to sit up and say it’s not me. I don’t know any of these people. I’m a victim. Out to get me. Sir, the perfect world doesn’t work that way. If you think–if they had documents to show it wasn’t him making the phone calls, you would see them. If they had documents to show someone else during those times, you would see them. Following a sustained objection and instruction to disregard, the prosecution made the following statement, “the defense has the power to make people appear, to subpoena records, just like the State.” The trial court overruled appellant’s objection in this regard.

The Court of Criminal Appeals has repeatedly held that the prosecutor may comment on the defendant’s failure to produce witnesses and evidence so long as the remark does not fault the defendant for exercising his right not to testify. Jackson, 17 S.W.3d at 674; Patrick v. State, 906 S.W.2d 481, 491 (Tex.Crim.App.1995) (en banc), cert. denied, 517 U.S. 1106, 116 S.Ct. 1323, 134 L.Ed.2d 475 (1996); Livingston v. State, 739 S.W.2d 311, 338 (Tex.Crim.App.1987), cert. denied, 487 U.S. 1210, 108 S.Ct. 2858, 101 L.Ed.2d 895 (1988). Here, reference to the defense’s failure to produce contrary witnesses and phone records was not improper.

Appellant’s seventh point of error is overruled.

Having denied appellant’s seven points of error, we affirm the trial court’s judgment.