Glenn, Marion v. The State of Texas--Appeal from 248th District Court of Harris County

Affirmed and Memorandum Opinion filed April 24, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00434-CR

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MARION GLENN, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 883,044

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M E M O R A N D U M O P I N I O N

A jury found appellant, Marion Glenn, a police officer employed with North Forest Independent School District, guilty of misdemeanor theft by a public servant. In two issues, appellant contends that (1) the trial court lacked jurisdiction because the indictment was fatally defective; and (2) his employers acknowledged and consented to the practice that resulted in his conviction. We affirm.

Facts

Appellant was employed approximately eighteen years as an officer for the North Forest I.S.D. Police Department. He worked the second shift, which ran from 4:00 p.m. until midnight. During part of his scheduled shift, appellant was also working a second job at Ben Taub Hospital. North Forest had a policy of not allowing officers to work extra jobs outside the school district. When Fred Coutee, a captain in the North Forest I.S.D. Police Department, was informed that appellant and another officer were working second jobs, he reviewed their hospital time sheets. The investigation was focused on the period from January through May 2001. Without considering the travel time between North Forest and Ben Taub Hospital (at least a twenty minute drive), appellant worked eleven hours at Ben Taub that overlapped with his North Forest hours. According to calculations by North Forest personnel, appellant was paid $168.63 for hours he had not actually worked. If compensatory time is requested, the officer completes a pink time slip, and he is credited an hour and a half for every extra hour worked. There was no evidence that appellant requested compensatory time or overtime pay. Appellant did not complete pink time slips for the days he worked at both places.

At trial, appellant presented evidence that officers at North Forest routinely swapped time, meaning an officer would work part of another officer s shift. Instead of seeking overtime pay for these extra hours, the officer would leave early on a different day. Appellant claimed that he used such an arrangement to work his second job at Ben Taub. Accordingly, appellant contends the time he spent at Ben Taub was merely undeclared compensatory time in lieu of overtime pay.

the Indictment

In his first issue, appellant contends the indictment was fatally defective because the State omitted an element of theft, namely, without the effective consent of the owner. Thus, he contends the trial court lacked jurisdiction. If an indictment is fatally defective, then the trial court does not have jurisdiction to hear the case and any judgment rendered by the court would be void. Studer v. State, 799 S.W.2d 263, 267 (Tex. Crim. App. 1990).

A person commits [theft] if he unlawfully appropriates property with intent to deprive the owner of property. Tex. Pen. Code Ann. 31.03(a) (Vernon 2003). The statute defines several ways in which an appropriation is unlawful, including without the owner s effective consent. Id. 31.03(b). However, [t]o plead theft . . . the State has only to allege that the accused appropriated property unlawfully with intent to deprive the owner of it. Chavez v. State, 843 S.W.2d 586, 588 (Tex. Crim. App. 1992). The methods of unlawful appropriation listed in section 31.03(b) are merely evidentiary matters, not elements of the offense. Ex parte Porter, 827 S.W.2d 324, 327 (Tex. Crim. App. 1992). Thus, [f]ailure to allege that the property was appropriated without the owner s effective consent does not render the indictment fundamentally defective. Ex Parte Luna, 784 S.W.2d 369, 371 (Tex. Crim. App. 1990).

Additionally, even if without the owner s effective consent was an element, its omission would not render the indictment fatally defective because failure to allege an element of an offense in the charging instrument is a defect of substance. Studer, 799 S.W.2d at 268. A defect of substance requires an objection to preserve error on appeal:

If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other post-conviction proceeding.

Tex. Code Crim. Pro. Ann. art. 1.14(b)(Vernon Supp. 2003)(emphasis added). Because appellant failed to object, he is precluded from raising the issue for the first time on appeal. Accordingly, we overrule issue one.

Factual Sufficiency

In his second issue, appellant contends that his superiors at North Forest were aware of his second job and consented to the practice of swapping time. Based solely on what appellant emphasized in his brief, we construe this argument as a challenge to factual sufficiency of the evidence.

In reviewing factual sufficiency, we view all the evidence in a neutral light and set aside the verdict only if 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 review the fact finder s weighing of the evidence and are authorized to disagree with the fact finder s determination. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). The jury, as trier of fact, is entitled to resolve any conflicts in the evidence, to evaluate the credibility of the witnesses, and to determine the weight to be given any particular evidence. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). With these restrictions in mind, we review the evidence presented by both parties at trial.

Captain Coutee testified that although formally disallowed by North Forest, officers commonly worked second jobs. He further testified that North Forest sent several memoranda reminding officers not to accept extra jobs. Instead, the officers could earn overtime pay by working extra hours during district athletic events and school dances.

Chief Hubert Kerr testified that if a North Forest officer works more than forty hours a week, the time should be reflected on sign-in sheets. Captain Coutee tabulates the hours worked through the sign-in sheets, which each officer completes on a daily basis. Requests to redeem compensatory time must be approved and noted on the sign-in sheets. Regardless, North Forest s policy is that its police officers may not work extra jobs outside the school district. Chief Kerr acknowledged that this policy had been disregarded, but this practice was without his permission. Specifically, neither he nor the superintendent of schools gave appellant permission to work an extra job outside the school district. Finally, he testified that appellant did not use compensatory time to work at Ben Taub.

Officer James Alexander testified on appellant s behalf and corroborated appellant s swapping time contention. Officer Alexander stated that he worked the third shift at North Forest, from midnight until eight in the morning. He was a basketball referee on Tuesday evenings, and he would often begin his shift early because he stayed at school after the game ended. He testified that he would relieve appellant, but not sign-in until his shift officially began. With one exception, appellant s Ben Taub work records verify the assertion that all overlapping time between the two jobs occurred on Tuesdays. Officer Alexander also explained that there were occasions when appellant worked late until his arrival, but they did not record it on the sign-in sheets. He further testified that it was a common practice for officers to sign-in for an entire shift, even if they left early.

Appellant testified that he and Officer Alexander had the duty, on different shifts, to monitor a fire hazard machine. He stated that Officer Alexander arrived early often and it made little sense for them to simultaneously watch the machine. Thus, Officer Alexander relieved him of duty. He did the same for Officer Alexander numerous times. He claimed that he never marked his sign-in sheets to reflect actual time because officers were not formally permitted to charge overtime. Consequently, swapping time was common between officers on all shifts. He testified that he would not leave his shift at North Forest until Officer Alexander arrived. He also admitted that he signed-in for an entire shift, but claimed this was a common practice in the department regardless of actual hours worked. He testified that on many days, he worked an hour to an hour-and-a-half extra, but did not request overtime pay. Appellant contends North Forest did not lose any money related to his swapping time with Officer Alexander.

Appellant admitted that he was aware of North Forest s policy disallowing officers to have second jobs outside the school district. However, he testified that Captain Coutee was aware of his Ben Taub job. He stated that Captain Coutee saw him and another officer with their Ben Taub identification cards before the investigation was initiated. Appellant further admitted that he knew he was required to complete a pink time slip to obtain compensatory time, whether earned or redeemed.

Because we recognize that the jury is the sole judge of the weight and credibility of the testimony, we should not substitute our judgment for that of the jury. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). In a factual sufficiency analysis, we defer to the jury s findings. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App.1997). Under this standard, a decision is not manifestly unjust merely because the jury resolved conflicting evidence in the State s favor. Id. at 410.

It is evident from the verdict that the jury did not believe appellant s explanations. Specifically, the jury may not have believed appellant actually worked the requisite hours at North Forest through an arrangement with Officer Alexander. The jury could have believed Chief Kerr s testimony that appellant did not use compensatory time because he never completed the necessary paper work. If appellant claimed compensatory time, he would have received time-and-a-half for every extra hour worked. This would have given appellant much more time than an even trade with Officer Alexander.

Because the credibility of proffered testimony is within the jury s province, Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App.1999), and because the jury apparently disbelieved appellant s explanations, see Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (jury may choose to disbelieve any portion of witnesses testimony), but believed his superiors, we defer to its finding. Unless the available record clearly reveals a different result is appropriate, an appellate court 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. Johnson, 23 S.W.3d at 8. The evidence was sufficient for the jury to conclude that appellant did not have consent from his superiors to work an extra job while signed-in at North Forest. Accordingly, we hold there was factually sufficient evidence to find appellant guilty of theft by public servant. Appellant s second point of error is overruled.

Having overruled appellant s points of error, we affirm the judgment of the trial court.

/s/ Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed April 24, 2003.

Panel consists of Justices Anderson, Seymore, and Guzman.

Do Not Publish Tex. R. App. P. 47.2(b).