Jason Perry v. The State of Texas--Appeal from 339th District Court of Harris County

MEMORANDUM OPINION
No. 04-03-00123-CR
Jason PERRY,
Appellant
v.
The STATE of Texas,
Appellee
From the 339th Judicial District Court, Harris County, Texas
Trial Court No. 897054
Honorable Caprice Cosper, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Alma L. L pez, Chief Justice (concurring in the judgment only)

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: June 9, 2004

AFFIRMED

Appellant Jason Perry was charged with theft of property in the amount of $1500 to $20,000. Following a jury trial, Perry was found guilty and sentenced to two years' imprisonment and a $400 fine. Perry's sentence was suspended, and he was placed on community supervision for five years. He now appeals his conviction in a single issue.

Because the issues in this appeal involve the application of well-settled principles of law, we affirm the conviction in this memorandum opinion under Tex. R. App. P. 47.1 for the following reasons:

1. In his sole issue, Perry contends the evidence presented by the State is factually insufficient to prove his guilt beyond a reasonable doubt. We review the sufficiency of the evidence under traditional standards of review, examining the evidence impartially and setting aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Johnson v. State, 23 S.W.3d 1, 6-7 (Tex. Crim. App. 2000); Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). The standard of review is the same in both direct and circumstantial evidence cases. Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999).

At trial, the State presented the testimony of several witnesses including Debra D'Ambrosio, the vice-president of risk management at Burnett Companies Consolidated, Inc. (Burnett); Veronica Puente, an employee at Burnett; Frank Perry, a security supervisor at the building where Getronics is located; Paul Sherrill and Hugo Alfaro, employees of Getronics; and Doug Bailey, an operations manager at Getronics. In the course of its direct examination of these witnesses, the State introduced evidence that appellant Perry had been employed by Burnett, a staffing company, who contracted employees to do work for another company, Getronics. Perry had been assigned to work at Getronics, beginning in October of 1998. The employees at Getronics were required to fill out a time sheet, using the "honor system," indicating the number of hours worked each week. These time sheets were used to determine each employee's salary.

The Burnett staff assistant in charge of payroll, Veronica Puente, discovered that Perry had missed three days of work in late May of 2000. She unsuccessfully attempted to contact him by telephone several times. When Puente finally reached Perry and inquired as to his reasons for missing work, he "really had no answer." Puente then informed Perry that "his services were no longer needed at Getronics." Puente subsequently e-mailed the Getronics' supervisors to inform them of Perry's termination. In October of 2000, Getronics employee Paul Sherrill implemented a new system to track the number of hours worked by each individual employee. Sherrill discovered that several employees, including Perry, were filling out time sheets in excess of the amount of time actually worked and receiving pay checks for this work. Perry was filling out time sheets when he had not worked at all since May, had not logged into the computer system, and was not on the work schedule. In addition, Getronics employee Hugo Alfaro testified that he had noticed some irregularities in Perry's time consistent with those detected by Sherrill. Security supervisor Frank Perry also testified that the record of employee entry indicated that appellant Perry's employee badge had been used to enter the building approximately once a week from the beginning of August until the end of October.

At the close of the State's case, the defense presented the testimony of Uzo Ilobachie and the defendant himself. Ilobachie testified that he remembered working with Perry some time "around" May of 2000 and that he couldn't remember but he thought he "saw [Perry] once in a while" up until October of 2000. He also stated that he had never heard anything about Perry being fired. Perry testified as to his own work ethic and reliability, as well as to the fact that he was not terminated from his job at Burnett or Getronics.

Under the Texas Penal Code, a person commits theft if he unlawfully appropriates property with the intent to deprive the owner of the property. Tex. Penal Code Ann. 31.03(a) (Vernon 2003). Appropriation of property is considered unlawful if it is without the owner's effective consent. Id. at 31.03(b)(1). Viewing the above evidence in an impartial light, the jury's verdict is not so against the great weight of the evidence as to be clearly unjust. See Johnson, 23 S.W.3d at 7. The evidence clearly shows that Perry was terminated from Burnett in May of 2000, but continued to enter the building approximately once a week until October of 2000 and fill out time sheets indicating a 40 hour work week in spite of his failure to actually work during this time period. The evidence also shows that Perry received pay checks totaling almost $8000 as a result of his actions. Consequently, we overrule Perry's only issue.

The judgment of the trial court is affirmed.

Paul W. Green, Justice

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