JASON ALLAN WHEELER, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM as MODIFIED; Opinion Filed October 25, 2010.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-10-00371-CR
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JASON ALLAN WHEELER, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F08-12916-WR
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OPINION
Before Justices Bridges, Francis, and Lang
Opinion By Justice Lang
        Jason Allan Wheeler appeals his conviction for theft of property. In three issues, appellant contends the evidence is legally and factually insufficient to support the conviction and the judgment should be modified to show he entered a not guilty plea and there was no plea bargain agreement. We modify and affirm.
Background
 
        Appellant initially waived a jury and pleaded guilty to theft of property valued at $1500 or more, but less than $20,000. Appellant's signed judicial confession and stipulation of evidence was admitted into evidence. After hearing appellant's testimony, the trial court recessed the hearing for a short time. When the hearing resumed, appellant withdrew his guilty plea, again waived a jury, and pleaded not guilty to the offense. The trial court then heard testimony from the complainant and his mother.
        Rodnay Fagan, the complainant, testified he gave appellant the keys to his vehicle after he had sustained injuries from a go-cart accident. He never intended for appellant or anyone to have his vehicle or drive it for an indefinite period of time. On the day of the offense, Fagan and appellant drove from their apartment complex in Carrollton to Christina Salazar's apartment in Dallas so they could “party.” Fagan said both appellant and Salazar were the dealers whom he purchased methamphetamine from on several occasions. When they arrived at Salazar's apartment, they all used methamphetamine, then went outside. Appellant asked Fagan to drive a go-cart that belonged to appellant. When Fagan drove the cart, he lost control and drove through several fences. Fagan sustained injuries to his back, ribs, knees, and head. After the accident, appellant ran back to Salazar's apartment without helping Fagan. A friend who was standing outside carried Fagan to Salazar's apartment. At that time, Fagan gave the keys to his vehicle to appellant and said, “[M]ake sure my Mom gets my car.” Before the ambulance arrived, Salazar and appellant told the friend to take Fagan back outside because he was bleeding heavily. The friend took Fagan outside. When the ambulance arrived, Fagan was alone outside the apartment. Paramedics transported Fagan to a hospital, where he underwent back surgery and treatment for his other injuries.
        Fagan testified that when he gave appellant the keys to his vehicle, appellant understood that he was to take the vehicle to Fagan's mother's house. Appellant had been to the mother's house before and knew where she lived. Fagan told the jury that at no time did he give the keys to Salazar or anyone else. Fagan said although he gave appellant permission to drive the vehicle, he never indicated to appellant that he was allowed to drive the vehicle for some indefinite period of time. Fagan also said he did not agree to switch cars with Salazar due to her car's expired registration and inspection stickers because “her car is older than mine.” After Fagan recovered from his injuries, he did not try to contact appellant. Instead, he contacted the Carrollton Police Department. About one year later, Fagan received a call from an impound in Oak Cliff stating his vehicle was there. When Fagan went to see the vehicle, it was “all torn apart.” Fagan also testified he did not tell the police at the scene of the go-cart accident and that appellant left in Fagan's vehicle.
        Joyce Fagan (Mother) testified that when she talked with Fagan in the emergency room, he asked her if appellant had called her. When she said no, Fagan said appellant was with him when he had the accident, and he gave his car keys to appellant to return the car to her. One day after the accident, appellant called Mother and said he was coming to her house to give her the vehicle but he was unsure which house was hers. Mother made arrangements to meet appellant at Fagan's apartment to retrieve the vehicle the next day. Mother went to Fagan's apartment and waited for an hour, but appellant did not come. When Mother called appellant's number, Salazar answered and said appellant was “on his way.” Mother waited another hour, but appellant never came. At some point after Fagan got out of the hospital, Mother talked to appellant by telephone again. Appellant said, “[M]s. Fagan, why are you making trouble for me? Rodnay let me drive his car.” Mother told appellant that he was to bring the vehicle back to her and he did not. She also told appellant that Fagan was home from the hospital and said appellant was to bring the vehicle to her. Mother testified that at no time did appellant say someone else had the vehicle and that Fagan said that was okay. After that conversation with appellant, Mother contacted the Carrollton Police Department and made a police report. Mother then wrote a letter to appellant demanding the return of the vehicle and had Fagan sign it. She sent the letter to the address where the accident had occurred because they believed appellant lived there with Salazar. Two weeks later, the letter came back undelivered. A short time later, appellant called Mother from Oklahoma and said she was “making his life difficult” and that he “did not steal Rodnay's car.” Mother gave the telephone number that appellant called from to the police.
        Appellant did not present any evidence during the hearing. After announcing that it would not consider appellant's prior testimony because he withdrew his guilty plea, the trial court found appellant guilty and assessed punishment at 365 days' confinement in a state jail facility.
Insufficient Evidence
 
        In two issues, appellant challenges the legal and factual sufficiency of the evidence. The Texas Court of Criminal Appeals has overruled Clewis v. State, holding that the Jackson v. Virginia standard is the only standard a reviewing court is to apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. See Brooks v. State, No. PD-0210-09, 2010 WL 3894613, at *1 (Tex. Crim. App. Oct. 6, 2010). Therefore, we will address appellant's issues under the Jackson v. Virginia standard.
        In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks, No. PD-0210-09, 2010 WL 3894613, at *1. We are required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326 (“a court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution”).        
        The State was required to prove beyond a reasonable doubt that appellant (1) without the owner's effective consent,(2) unlawfully appropriated property valued at $1500 or more but less than $20,000, (3) with the intent to deprive the owner of the property. See Tex. Penal Code Ann. § 31.03(a) (West Supp. 2010).
        Appellant contends the evidence is insufficient because Fagan could not recall events clearly due to a head injury at the time he gave appellant the car's keys, Fagan could not recall telling officers appellant left the scene in his car, and Fagan could not recall agreeing to switch cars with Salazar because her registration and inspection stickers had expired. Appellant further contends his telephone calls to Fagan's mother do not amount to admissions of guilt. The State responds that the evidence is sufficient to support appellant's conviction.
        The evidence presented shows Fagan gave his car keys to appellant so appellant could give the car to Fagan's mother. Although Mother made arrangements with appellant to get the vehicle, appellant never brought the vehicle to her. As the fact-finder in this case, it was the trial judge's role to reconcile any conflicts in the evidence. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003); see also Jackson, 443 U.S. at 326. A rational fact-finder could reasonably find that appellant unlawfully appropriated Fagan's vehicle without his effective consent.
        Viewing all of the evidence under the proper standard, we conclude it is sufficient to support appellant's conviction. See Brooks, No. PD-0210-09, 2010 WL 3894613, at *1. We resolve appellant's first two issues against him.
Modify Judgment
 
        In his third issue, appellant contends the written judgment should be modified to show he entered a not guilty plea to the charges in the indictment, and that there was no plea bargain agreement in this case. The record shows appellant withdrew his initial guilty plea and entered a not guilty plea during the hearing, and there was no mention of a plea bargain agreement. The judgment, however, recites the plea to the offense was guilty and the terms of the plea bargain were “N/A open plea.” Thus, the judgment is incorrect. We sustain appellant's third issue.
        We modify the trial court's judgment to show the plea to the offense is “Not Guilty” and the terms of plea bargain is “None.” See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd).
        As modified, we affirm the trial court's judgment.
 
 
 
                                                          
                                                          DOUGLAS S. LANG
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
100371F.U05