Ahmed, Ali Shahbaz v. The State of Texas--Appeal from Co Crim Ct at Law No 9 of Harris County

Affirmed and Opinion filed _____________, 2003

Affirmed and Memorandum Opinion filed October 14, 2003.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-00748-CR

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ALI SHAHBAZ AHMED, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law Number Nine

 Harris County, Texas

Trial Court Cause No. 1101527

 

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

Appellant Ali Shahbaz Ahmed appeals from his misdemeanor conviction for burglary of a motor vehicle and the trial court s order denying his motion for new trial. He was convicted by a jury on June 28, 2002, and the trial court assessed punishment at 150-days imprisonment. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.1. We affirm.

In his first issue, appellant argues the trial court erred in charging the jury as to the law of parties, because it was not raised by the evidence. See Tex. Pen. Code 7.02(a)(2). Of course, when an appellant alleges jury charge error, we generally must determine whether there is any error in the charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996). If we conclude there is jury charge error, we must determine if the error caused sufficient harm to warrant reversal. Id. at 170-71. An instruction on the law of parties may be given to the jury whenever there is sufficient evidence to support a jury verdict that the defendant is criminally responsible under the law of parties. Ladd v. State, 3 S.W.3d 547, 564 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1070 (2000). However, [w]here [as in the instant case] the evidence clearly supports a defendant s guilt as a principal actor, any error of the trial court in charging on the law of parties is harmless. Id. at 564-65.

In the present case, even if the trial court erred in instructing the jury on the law of parties, we find the error was harmless. The elements for the offense of burglary of a vehicle are satisfied if it is proved that a person: (1) broke into or entered a vehicle, (2) without the consent of the owner, and (3) with the intent to commit any felony or theft. See Tex. Pen. Code 30.04. We find there was both factually and legally sufficient evidence to convict appellant as a principal.

In the present case, Arz Mohar, the driver of the FedEx truck, testified he saw appellant enter his delivery truck three times while he was making a delivery upstairs. According to Mohar, appellant entered the truck s cargo compartment through the passenger-side door, and each time exited about thirty seconds later. When Mohar came out of the building, appellant ran away, and when Mohar caught him, appellant confessed and asked for forgiveness in Urdu (both Mohar and appellant are from Pakistan). Two computers were missing from the truck. Witnesses Denise Martinez and Jenny Hong testified they saw appellant and Khang Tran (appellant s alleged accomplice) acting furtively before the incident, and saw two boxed computers in a partially hidden location where Tran and appellant had been hiding and had left their backpacks.

Appellant explained his strange behavior by testifying he and Tran were involved in a biology project studying bees, and that he does not speak Urdu. Appellant s biology professor denied assigning any project to their class regarding bees. Accordingly, we find the evidence was both legally and factually sufficient to support appellant s guilt, and his first issue is overruled.

In his second issue, appellant contends the trial court abused its discretion in denying his motion for new trial because a prosecutor s alleged threat prevented Tran from testifying at trial. A trial court s denial of a motion for new trial is reviewed under an abuse of discretion standard. Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001), cert. denied, 534 U.S. 855 (2001). This Court cannot substitute its judgment for that of the trial court, but must simply determine whether the trial court s ruling was arbitrary or unreasonable. Id. The trial court is in the best position to weigh the credibility of the testifying witnesses. See Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). Therefore, when conflicting evidence is presented concerning an issue of fact, the trial judge determines the issue and there is no abuse of discretion in overruling a motion for new trial. See Thomas v. State, 699 S.W.2d 845, 854 (Tex. Crim. App. 1985). In the present case, Eleanor Daigre was the only prosecutor to speak to Tran. She testified she called Tran for investigative purposes upon notification by appellant s attorney that Tran was an alibi witness. She denied saying anything to discourage him from testifying. Because the testimony as to what occurred was conflicting, we defer to the trial judge s determination of the credibility of these witnesses, and find no abuse of discretion. Appellant s second issue is overruled.

The judgment of the trial court is affirmed.

/s/ Scott Brister

Chief Justice

Judgment rendered and Memorandum Opinion filed October 14, 2003.

Panel consists of Chief Justice Brister and Justices Anderson and Seymore.

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