RODNEY KEVIN ALVA, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM, and Opinion Filed August 1, 1996
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-92-01799-CR
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RODNEY KEVIN ALVA, Appellant
V.
THE STATE OF TEXAS, Appellee
..............................................................
On Appeal from the 296th District Court
Collin County, Texas
Trial Court Cause No. 296-80640-92
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O P I N I O N
Before Justices James, Wright, and Wolfe FN:1
Opinion By Justice Wolfe
        Rodney Kevin Alva appeals his conviction by a jury of theft of property with a value of at least $750 but less than $20,000. The jury assessed punishment, enhanced by one prior conviction, at ten years' confinement and a $2000 fine. In four points of error, appellant challenges the sufficiency of the evidence to support his conviction and asserts the trial court improperly commented on the weight of the evidence and conveyed its opinion of the case. We affirm the trial court's judgment.
FACTS
        James Schumacher testified that he was the president of a home maintenance company called The Home Team. In July 1991, appellant answered an advertisement placed by Schumacher for laborers for the company. The company had not yet begun operating, but Schumacher hired appellant to paint Schumacher's house. Schumacher opened a charge account using his VISA card at the Sherwin Williams store located at Coit and Legacy in Plano. Appellant had authority to charge supplies for Schumacher's house to the card. After The Home Team began operating, appellant worked as an independent contractor for Schumacher until August 26, 1991. Schumacher fired appellant at about 8:30 a.m. on August 26, 1991. Schumacher testified that appellant did not have his consent to charge a spray paint gun to the VISA card account at Sherwin Williams.
        Christopher Heath, manager of the Sherwin Williams, and Stephen Kneblik, assistant manager of Sherwin Williams, both testified. Heath testified that as manager, he was responsible for the inventory, ordering equipment, and overseeing employee scheduling. He was also responsible for sales and internal credit. Heath testified that appellant came into the Sherwin Williams at about noon on August 26, 1991. Heath knew appellant had worked for Schumacher. Appellant spoke to Heath about buying a spray paint gun for the company. Appellant selected a spray paint gun, and charged it to Schumacher's VISA card.
 
Appellant also charged a gun hose and tip kit to the credit card. The total value of the property was $1709.27. Appellant did not tell Heath that appellant was no longer working for Schumacher. Heath testified that had he known appellant was no longer working for Schumacher, Heath would not have allowed appellant to charge the spray paint gun to Schumacher's credit card.
        Schumacher testified that he learned appellant charged the spray paint gun to the VISA card when he received the statement in early September 1991. Schumacher did not have the spray paint fun. He arranged to have the charge removed from his bill because it was unauthorized. Heath testified that he neither recovered the spray paint gun nor received payment for it.
        Appellant testified that he and Schumacher were partners in The Home Team. He testified that Schumacher did not fire him on August 26, 1991. He also testified that he and Schumacher discussed buying the spray paint gun and Schumacher consented to appellant charging the equipment to the VISA card. Appellant testified that he and Schumacher had a falling out because Schumacher was overcharging customers and also did not pay appellant $6000 owed him. Appellant stated that he told Schumacher the location of the spray paint gun and believed Schumacher had retrieved it.
        Appellant was charged by indictment, in alternate counts, of credit card abuse and theft of property with a value of at least $750 but less than $20,000. The theft of property count alleged in separate paragraphs Schumacher, Kneblik, and Heath as the owners of the spray paint gun. The jury convicted appellant of theft of property under the paragraph naming Heath as the owner.
I. SUFFICIENCY OF THE EVIDENCE
        In his first point of error, appellant claims the evidence is sufficient to show he intended to deprive Christopher Heath of the property. In his second point of error, appellant contends the evidence is insufficient to show Christopher Heath had a greater right to possess the property than did appellant.
A. Standard of Review
        The standard of review for the legal sufficiency of the evidence in a criminal case is whether, after reviewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. FN:2 Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner V. State, 805 S.W.2d 423, 427 (Tex. Crim. App.), cert. denied, 502 U.S. 870 (1991). The standard is the same whether we are reviewing the sufficiency of circumstantial or direct evidence. See Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991). Every fact need not point directly and independently to the defendant's guilt. Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex. Crim. App. 1981), cert. denied, 456 U.S. 910 (1982). A conclusion of guilt can rest on the combined and cumulative force of all incriminating circumstances. Id.; Smith v. State, 895 S.W.2d 449, 452 (Tex. App.--Dallas 1995, pet. ref'd).
        The jury is the exclusive trier of facts, the credibility of the witnesses, and the weight to be given their testimony. Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 865 (1985). As such, it is free to accept or reject the testimony of any witness. See Flanagan v. State, 675 S.W.2d 734, 746 (Tex. Crim. App. 1984)(op. on reh'g). The fact finder may draw reasonable inferences and make reasonable deductions from the evidence. Smith, 895 S.W.2d at 452.
B. Applicable Law
        A person commits theft if, without the effective consent of the owner, he appropriates property with the intent to deprive the owner of the property. Tex. Penal Code Ann. § 31.03(a),(b)(1) (Vernon 1989) (current version at Tex. Penal Code Ann. § 31.03(a), (b)(1) (Vernon 1994)). Consent is not effective if it is induced by deception. Tex. Penal Code Ann. § 31.01(4)(A) (Vernon 1989) (current version at Tex. Penal Code Ann. § 31.03(3)(A) (Vernon 1994)). Deception means (1) "creating or confirming by words or conduct a false impression of law or fact that is likely to affect the judgment of another in the transaction, and that the actor does not believe to be true" or (2) "failing to correct a false impression of law or fact that is likely to affect the judgment of another in the transaction, that the actor previously created or confirmed by words or conduct, and that the actor does not now believe to be true." Tex. Penal Code Ann. § 31.01(2)(A),(B) (Vernon 1989) (current version at Tex. Penal Code Ann. § 31.01(1)(A),(B) (Vernon 1994)). Intent to deprive may be inferred from the circumstances surrounding the appropriation. See Rowland v. State, 744 S.W.2d 610, 613 (Tex. Crim. App. 1988).
        To prove ownership, the State must show the complainant had title to the property, possession of the property, or the greater right to possession of the property the actor. Tex. Penal Code Ann. § 1.07(a)(24)(A) (Vernon Supp. 1994) (current version at Tex. Penal Code Ann. § 1.07(a)(35)(A) (Vernon 1994)). Proof of a management position alone is insufficient to prove ownership absent a showing the named owner exercised some degree of care, custody, control, or management over the property allegedly stolen. Freeman v. State, 707 S.W.2d 597, 603 (Tex. Crim. App. 1986). Ownership may be established by circumstantial evidence. Chowdhury v. State, 888 S.W.2d 186, 187 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd).
C. Application of Law to Facts
        There was evidence that Schumacher terminated appellant's employment on August 26, 1991 several hours before appellant charged the spray paint gun to Schumacher's credit card. Schumacher did not give appellant consent to charge the spray paint gun to his VISA card. There was also evidence that appellant did not tell Heath that appellant was no longer working for Schumacher. Heath testified that had he known the relationship was terminated, he would not have allowed appellant to use Schumacher's credit card to obtain the spray paint gun. We conclude a rational trier of fact could have found beyond a reasonable doubt that appellant intended to deprive Heath of the spray paint gun. See Rowland, 744 S.W.2d at 613.
        Heath testified that he was the manager of the Sherwin Williams. He stated that he never recovered the spray paint gun, nor was he paid for it. He also testified that he was responsible for the inventory in the store, and when property was taken in the manner in which the spray paint gun was taken, it went to Heath's "bottom line" for which he was directly responsible. We conclude a rational trier of fact could have found beyond a reasonable doubt that Heath had a greater right to possession of the spray paint gun than appellant. See Chowdhury, 888 S.W.2d at 187.
        We overrule appellant's first and second points of error.
II. TRIAL COURT'S COMMENTS
        In his third point of error, appellant asserts the trial court erred in commenting on the weight of the evidence. In his fourth point of error, appellant complains the trial judge erred in conveying his opinion of the case to the jury.
        A trial judge shall not discuss or comment upon the weight of the evidence or its bearing on the case, nor shall he, at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey his opinion of the case. Tex. Code Crim. Proc. Ann. art. 38.05 (Vernon 1979). A remark from the trial judge does not violate article 38.05 unless it benefits the State or harms the defendant. Selman v. State, 807 S.W.2d 310, 312 (Tex. Crim. App. 1991). A defendant must object to the comment at trial in order to preserve error for appellate review. Sharp v. State, 707 S.W.2d 611, 619 (Tex. Crim. App. 1986), cert. denied, 488 U.S. 872 (1988); Verela v. State, 561 S.W.2d 186, 192 (Tex. Crim. App. 1978).
        The jury returned a verdict finding appellant guilty of both credit card abuse and theft of property from Heath. Appellant complains that the trial court commented upon the weight of the evidence when it stated:
 
[THE COURT]: The way I have the verdict now, you have found him guilty of Count I in the indictment, and Paragraph 3 of Court II in the indictment, and I cannot accept a verdict of two findings of guilty. It has to be restricted to only one.
Although appellant moved for mistrial on the ground that the jury made two findings of guilt, appellant did not object to the trial court's instruction. FN:3
        Appellant also cites many "comments" by the trial judge by which he contends the trial judge conveyed his opinion of the case to the jury. Our review of the record shows that appellant never objected to these comments.
        We conclude appellant has not preserved his complaints for appellate review. See Sharp, 707 S.W.2d at 619; Varela, 561 S.W.2d at 192. We overrule appellant's third and fourth points of error.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          JOSEPH W. WOLFE
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 90
921799F.U05
 
 
 
FN:1 The Honorable Joseph W. Wolfe, Justice, succeeds the Honorable Will Barber, Justice, a member of the original panel. Justice Wolfe has reviewed the briefs and record in this case.
FN:2 We are mindful of the recent decision of the Texas Court of Criminal Appeals in Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996). In this case, appellant does not challenge the factual sufficiency of the evidence.
FN:3 The record reflects that appellant's trial counsel asked the trial court to instruct the jury that they had to agree on one verdict.
File Date[08-06-96]
File Name[921799F]