York, Elton Tyrone v. The State of Texas--Appeal from 248th District Court of Harris County

Affirmed and Opinion filed  October 10, 2002.

In The

Fourteenth Court of Appeals

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NOS. 14-01-00800-CR and

14-01-00801-CR

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ELTON TYRONE YORK, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause Nos. 851,679 and 851,680

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O P I N I O N

Elton Tyrone York appeals two convictions for theft[1] of cash and a motor vehicle on the grounds that: (1) the trial court s failure to include certain definitions in the jury charge rendered the evidence insufficient to support his conviction and violated his constitutional right to due process; and (2) there was insufficient evidence to prove jurisdiction. We affirm.

Omission of Charge Definitions

  Appellant s first issue in the theft of cash conviction argues that the evidence is insufficient to support that conviction because the trial court failed to define the terms unlawfully appropriate, lack of effective consent, and deception in its charge to the jury. In particular, appellant asserts that under Benson[2] and its progeny, the failure of the trial court s charge to the jury to contain definitions of these terms renders the evidence insufficient to support [a]ppellant s conviction as a matter of law, since these definitions were essential to the State securing a conviction under the facts presented at trial. [3] We disagree for three reasons.

First, neither the indictment nor the jury charge used the terms effective consent or deception. Therefore, there would have been no reason for the charge to define those terms. Similarly, although the term unlawfully appropriate was not defined in a separate paragraph, the term appropriate was so defined, and the term, unlawfully appropriate was used in the charge (as well as the indictment) in such a way that a definition was apparent from the context, i.e., unlawfully appropriate, by acquiring or otherwise exercising control over property, . . . with intent to deprive [the owner] of the property.

Second, appellant s brief fails to explain how Benson would apply to render the evidence insufficient due to an omission of charge definitions. Third, Benson has been expressly overruled by Malik,[4] holding that the sufficiency of evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge for the case rather than the charge actually given. See Fuller v. State, 73 S.W.3d 250, 252 (Tex. Crim. App. 2002). Therefore, appellant s first issue affords no basis for relief and is overruled.

Appellant s second issue in the theft of cash conviction contends that the trial court s failure to include the foregoing definitions in the jury charge violated his federal constitutional right to due process. In support of this argument, appellant correctly asserts that due process does not allow a conviction to be affirmed on legal and factual grounds that were not submitted to the jury.[5] However, appellant ultimately concludes that under Malik, due process is violated since the court s charge to the jury applying the law to the facts of the case simply does not authorize a conviction under the facts presented at trial. Again, however, appellant s brief fails to explain how an omission of these charge definitions: (1) could have allowed a conviction on grounds that were not submitted to the jury; (2) otherwise supports a due process claim; or (3) failed to authorize a conviction under the facts presented at trial. Accordingly, his second issue affords no basis for relief and is overruled.

Jurisdiction

Appellant s first issue in the motor vehicle theft conviction asserts that there is insufficient evidence to support that conviction because the State failed to prove that any of the elements of the offense occurred within the territorial jurisdiction of Texas.[6]

When reviewing legal sufficiency,[7] we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Reyes v. State, 2002 WL 31019340, at *3 (Tex. Crim. App. Sept. 11, 2002). A person commits theft if he unlawfully appropriates property with intent to deprive the owner of the property. Tex. Pen. Code Ann. 31.03(a) (Vernon 1994 & Supp. 2002). To appropriate means to acquire or otherwise exercise control over property. Id. 31.01(4)(B).

In this case, the evidence at trial reflects, among other things, that at the apartment of a Joshua Harrison, in Houston, Harris County, Texas, appellant: (1) offered to sell the complainant s car to Ryan Folger; (2) a few days later brought the complainant s car to Folger so he could inspect and test drive it; (3) accepted a $1,500 down payment on the complainant s car from Folger and let Folger take the car home; and (4) accepted the remaining balance from Folger and gave Folger the keys to the complainant s car and a fictitious registration sticker.

Each of appellant s actions at the apartment in Harris County in transacting the sale to Folger and accepting the proceeds was an exercise of control over the complainant s car with an intent to deprive him of it.[8] Because the evidence thereby clearly reflects that one or more elements of the offense occurred at a location in Texas, it was sufficient to establish the jurisdiction of the State over this offense. Accordingly, we overrule appellant s first issue in the motor vehicle theft conviction and affirm both the judgments of the trial court.

/s/ Richard H. Edelman

Justice

Judgment rendered and Opinion filed October 10, 2002.

Panel consists of Justices Edelman, Seymore, and Guzman.

Do Not Publish Tex. R. App. P. 47.3(b).

[1] Appellant was convicted by a jury and sentenced by the trial court in both cases. His sentence was 18 months confinement in cause number 851,680 and six months confinement in cause number 851,679.

[2] See Benson v. State, 661 S.W.2d 708 (Tex. Crim. App. 1982).

[3] When reviewing legal sufficiency, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Reyes v. State, 2002 WL 31019340, at *2 (Tex. Crim. App. Sept. 11, 2002).

[4] See Malik v. State, 953 S.W.2d 234, 239 (Tex. Crim. App. 1997).

[5] See, e.g., Malik, 953 S.W.2d at 238 n.3.

[6] The State of Texas has jurisdiction over an offense if either the conduct or a result that is an element of the offense occurs in Texas. Tex. Pen. Code Ann. 1.04(a)(1) (Vernon1994). As contrasted from venue, which is not challenged in this case, the criminal jurisdiction of district courts in Texas is not limited as to the county in which the offense is committed. See Boyle v. State, 820 S.W.2d 122, 139 (Tex. Crim. App. 1989).

[7] Although appellant s brief does not specify whether his challenge is to the legal or factual sufficiency of the evidence, or both, we interpret it as solely a legal sufficiency challenge because he cites no evidence showing that the offense did not occur in Texas.

[8] See Taylor v. State, 921 S.W.2d 740, 745 (Tex. App. El Paso 1996, no pet.) (holding that evidence of appellant selling complainant s bicycle to pawn shop was sufficient to establish both personal possession and the assertion of a conscious and distinct right to the property).