L.T. Roberson v. The State of Texas--Appeal from 248th District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-93-143-CR

L.T. ROBERSON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 248th District Court

Harris County, Texas

Trial Court # 661,311

O P I N I O N

Appellant was charged by indictment with the first-degree felony offense of theft. In addition thereto, the indictment contained two enhancement paragraphs which alleged that Appellant had been previously convicted of forgery and theft. Appellant entered a plea of "not guilty," and both sides proceeded to trial before a jury, which found Appellant guilty of first-degree felony theft as charged in the indictment. Thereafter, the court found the enhancement allegations to be true and assessed Appellant's punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of 29 years.

Appellant comes to this court on three points of error. We overrule all of Appellant's points and contentions and affirm the trial court's judgment.

Appellant's first point of error is as follows:

The trial court erred in denying Appellant's motion for mistrial for prosecutorial misconduct in forcing Appellant to a jury selection for a joint trial with a co-defendant when the prosecution had information well in advance to indicate that the co-defendant was in jail during two of the three dates in question.

One of the business activities of Westinghouse Electric involves the production and maintenance of massive gas turbines used by commercial utilities in the generation of electrical energy. During the month of February 1993, a Westinghouse mechanical plant located at 5730 Clinton Drive was engaged in refurbishing a turbine for Southern California Edison Electric Company. In order to clean the disks on the rotor, the individual rotor blades were carefully removed, stacked in specially made racks, and stored in a barn outside the main shop area.

For security purposes, the mechanical plant is surrounded by a 10-foot concrete wall topped with razor wire. Despite these precautions, on or about February 1, 1993, David Ashbrook, a shift supervisor, saw Appellant walking across an uncovered open area of the plant property carrying approximately 80 pounds of copper wire in both arms. Ashbrook asked Appellant what he was doing, and Appellant replied that he was getting some scrap. Ashbrook ordered Appellant to come with him and he began walking toward the security shack. Appellant said, "You're not going to arrest me, are you?" Ashbrook replied, "I am turning you over to security." Appellant said, "In this case I have to leave," and he turned and ran toward the rear of the plant. As Ashbrook summoned the security guard, he looked back and saw Appellant attempting to go over the security wall. After Ashbrook alerted the security guard, they attempted to locate Appellant, but were unable to do so; neither were they able to precisely discern how Appellant had gotten on and off the property.

Two weeks later, at approximately 10:30 p.m. on the evening of February 22, 1993, Keith Parker, one of the Westinghouse machinists involved in the project, spotted a rotor blade perched on top of the security wall, and he immediately summoned his foremen, Edward Byrnes. Using a forklift, Parker and Byrnes retrieved the rotor blade. Upon returning the blade to the barn, Byrnes observed that a number of blades were missing from their crates. A hurried inspection revealed that at least 60 rotor blades had been stolen.

Impressions of rotor blades were also discovered in the earth or mud outside the security wall and immediately beneath the area where the one rotor blade was found perched on top of the wall. A more thorough inventory of the blades remaining in the barn revealed that at least 78 were missing. However, over the following days, Westinghouse discovered that it had lost over 100 blades valued at over $1,000,000.

Police discovered that a scrap metal business known as "Gulf Metals" had purchased a large number of rotor blades, and an inspection of its business records revealed that Gulf Metals had purchased the blades from another business named "Lockwood Scrap," which was owned by Armando Ledesma. When police asked Ledesma about the rotor blades, he showed them 14 blades still in his possession which he claimed were from batches he purchased from Appellant and his co-defendant, Edmond Collins, on three separate occasions; namely, on February 3, 1993; February 5, 1993; and March 7, 1993. Ledesma told police that the two men brought him the blades on these three occasions stacked in a shopping cart.

The grand jury returned theft indictment against both Appellant and Edmond Collins. For the sake of judicial economy, both defendants were tried together, and neither defendant objected to a joint trial. Counsel for the State, Appellant, and Mr. Collins were each permitted to conduct voir dire examination of the venire. After the parties had exercised their peremptory strikes, the jury was empaneled and sworn. Immediately thereafter, the State's attorney confirmed from jail records that Collins was residing in the Harris County Jail on February 3, 1993, and February 5, 1993, thereby rendering it impossible for Collins to have been with Appellant on those dates, as Ledesma had stated to police.

The State's attorney dismissed the case against Collins and proceeded to trial against Appellant. Whereupon, Appellant objected and requested a mistrial, claiming that the prosecutor should have been more diligent in investigating Collins' claim that he was in jail on two of the three dates that the 14 blades, which are the subject of this prosecution, were sold to Lockwood Scrap. Appellant argued that, had the prosecutor confirmed Collins' incarceration in a timely manner, the trial would not have commenced as a joint trial and Appellant would have had 10 peremptory strikes available to him rather than the 6 provided by Tex. Code Crim. Proc. Ann. art. 35.15(b) (Vernon Supp. 1994).

The State's attorney affirmatively stated to the trial court that he did not know Collins was incarcerated during February of 1993 until either immediately before or immediately after voir dire. The prosecutor spoke to Ledesma to see if he could recall or ascertain the number of blades which he obtained on March 7, 1993, when Collins was out of jail. The State's attorney hoped, of course, that Ledesma could identify enough of the blades to permit him to rely on the "March 7th" transaction alone to establish the jurisdictional amount for a first-degree felony. When Ledesma informed him that he could not specifically state which, if any, of the 14 blades were delivered to him on March 7, 1993, the State's attorney dismissed the case against Collins.

The trial judge made a finding that the State acted in good faith, and he denied Appellant's request for a mistrial. Appellant contends that the trial court erred in so holding.

Here the trial court's decision was a matter within its discretion. Appellant having failed to demonstrate an abuse of discretion, and being unable to make a showing of harm, we overrule Appellant's first point of error. See Johnson v. State, 803 S.W.2d 272, 287 (Tex. Crim. App. 1990), cert. denied, 111 S. Ct. 2914 (1991).

Moreover, Appellant was aided in jury selection by the ability to peremptorily strike 12 jurors, while the State possessed only 10 peremptory challenges. Edmond Collins and Appellant had the same interest in selecting a neutral or, if possible, a defense-oriented jury. Normally, when co-defendants are tried together in a joint trial, the attorneys for the defendants share their observations and thoughts, and then act in concert when utilizing their peremptory challenges. In other words, instead of simply having one attorney and 10 strikes, in a joint trial the co-defendants obtain the mutual advantage of having two attorneys, two voir dire examinations, the observations and perceptions of two advocates, coupled with their combined experience and expertise in how to employ their 12 strikes.

Appellant's second point of error reads as follows:

The trial court erred in overruling Appellant's objection to the testimony of David Ashbrook regarding an extraneous offense.

Appellant objected to the testimony of David Ashbrook concerning his encounter with Appellant in the early part of February 1993, when he was observed inside the plant compound attempting to steal copper wire. The basis of Appellant's objection was that the attempted theft of copper wire was an inadmissible extraneous offense. We do not agree.

The approach under Rule 403, Texas Rules of Criminal Evidence, is to admit relevant evidence unless the probative value of the relevant evidence is substantially outweighed by the danger of unfair prejudice to a defendant. Crank v. State, (Tex. Crim. App. 1988) 761 S.W.2d 328, 342. Therefore, Rule 403 favors admissibility of relevant evidence, and the presumption is that relevant evidence will be more probative than prejudicial. Montgomery v. State, (Tex. Crim. App. 1990) 810 S.W.2d 372, 389.

The analysis for determining the admissibility of an extraneous offense is for the trial judge in the first instance and, absent a clear abuse of discretion, his decision should not be disturbed on appeal. Montgomery v. State, (Tex. Crim. App. 1990) 810 S.W.2d 372, 391; Tex. R. Crim. Evid. 404(b).

The attempted theft of the copper wire was admissible for at least four reasons. Id. First, it provided evidence of a continuing scheme or plan by Appellant to steal metals from the Westinghouse mechanical plant. Second, it demonstrated Appellant's opportunity to steal rotor blades by demonstrating his ability to penetrate the security measures employed by Westinghouse to prevent the loss of materials. Third, in the same manner, proof of the incident helped rebut a defensive theory, i.e., that it would have been difficult or impossible for Appellant to have acquired access into the interior of the plant compound. Finally, the extraneous offense helped bolster the relatively weak identification testimony of Armando Ledesma. We overrule Appellant's second point of error.

Appellant's third and final point of error asserts that the evidence is insufficient to prove the value of the stolen property beyond a reasonable doubt. More specifically, Appellant contends that the evidence was insufficient to show that the total value of the 14 rotor blades, which are the subject of the instant theft, had a combined value of more that $100,000 as alleged in the indictment.

The record reflects that the Westinghouse mechanical plant is in the business of overhauling gas and steam turbines. A turbine, of course, is nothing more than a large fan. Extending from a central rotating shaft, or rotor, are a series of blades or vanes which turn the rotor when hot air or steam passes over them. When a turbine is serviced, the blades are first removed to permit unencumbered access to the rotor. Once the rotor has been refurbished, the blades are sandblasted and reattached. In the instant case, Appellant stole 5 blades that had been removed from a turbine owned by Southern California Edison Electric Company which was in the process of being renovated. Appellant also took 9 new blades which had been received from the manufacturer and were awaiting installation. Mr. Edward Shaw testified that the collective value of these 14 blades was $130,600.

When calculating the value of the 5 "used" blades, Mr. Shaw stated that he was using the cost of a new blade, i.e., the replacement cost. Appellant argued at trial that it was improper for the State to use the cost of a new blade as evidence of the value of a used blade. The State, however, established through the testimony of Mr. Shaw that there is no market for "used" blades. Each blade is a unique product. Furthermore, each blade bears a unique number, and each "belongs" to a specific turbine. When a turbine is refurbished, the blades can be cleaned and reattached, but if for some reason a blade must be replaced, there is no used turbine blade outlet from which used blades can be purchased. In order to repair the turbine, a new blade would have to be constructed by the manufacturer. Hence, the theft of a "used" blade necessarily burdens the victim with the cost of buying a new blade.

Appellant contends for the first time on appeal, however, that before the State was entitled to use the "cost of replacing" the used blades as the "value" of the stolen property, it was incumbent upon the State to prove that the used blades were serviceable and would have been remounted on the rotor if they had not been stolen. In other words, Appellant contends that if the 5 used blades were "used up" and could not be refurbished, then they could not be reattached to the rotor and their only value would have been as scrap metal. Appellant argues that since the State did not prove that the 5 used blades could have been refurbished and reattached to the rotor, it failed to establish that the value of these blades exceeded more than a few hundred dollars for their scrap metal content.

Appellant is apparently unaware that his argument is rather easily refuted by the record in this case. The record plainly reflects that the 5 used blades stolen by Appellant were, in fact, reattached to the Southern California Edison Electric Company's turbine. Obviously, the 5 used blades were not worn out, and had they not been recovered by police, the complainant would have had to bear the cost of replacing them with new blades. Appellant's third and final point of error is overruled.

Judgment of the trial court is affirmed.

JOHN A. JAMES, JR.

Justice (Retired)

Before Chief Justice Thomas,

Justice Vance, and

Justice James (Retired)

Affirmed

Opinion delivered and filed August 31, 1994

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