Marvin Ware v. State of Texas--Appeal from 174th District Court of Harris County
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NO. 07-01-0155-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
JANUARY 7, 2003
______________________________
MARVIN WARE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 174TH DISTRICT COURT OF HARRIS COUNTY;
NO. 858,829; HON. JON H. HUGHES, PRESIDING
_______________________________
Before JOHNSON, CJ., QUINN, J. and BOYD, SJ.1
In one issue, appellant Marvin Ware contends the evidence is legally and factually
insufficient to sustain his conviction of the offense of theft by a public servant. We affirm
the judgment of the trial court.
Background
Appellant was a bus driver for the Metropolitan Transit Authority of Harris County.
On September 5, 2000, the Metro Police began an operation to investigate problems with
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John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. TEX. GOV’T
CODE ANN. §75.002(a)(1) (Vernon 1998).
personal property being turned into the lost and found department. As part of this
investigation, Officer Willie Hernandez boarded the bus driven by appellant at the first stop
and took a seat near the front. Several stops later, another officer, Yvette Pitts, boarded
the bus and took a seat near the rear of the bus. After a few minutes, Pitts took a wallet
to appellant which she claimed had been left on the bus. The wallet contained $30 in cash
as well as a number of business cards which had been furnished by the Metro Police. The
officers exited at the last stop, and Officer Marvin Ledet followed the bus back to its facility
in an unmarked car. A superintendent of the facility, Richard Forbus, watched to see if
appellant turned the wallet into the Transit Authority, which he did not. Officer Ledet then
observed appellant walk back toward where the buses were parked and go through a
wallet. Appellant threw the wallet in a trash can where Ledet retrieved it after appellant
left the area. The money was missing, and the business cards and papers had been
moved from their respective compartments.
Issues One and Two - Sufficiency of the Evidence
In issues one and two, appellant challenges the legal and factual sufficiency of the
evidence to sustain his conviction. We overrule the issues.
The standards of review applicable in determining the legal and factual sufficiency
of the evidence are well settled. We will not reiterate them but rather refer the litigants to
Jackson v. Virginia, 443 U.S. 307, 309, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), King v.
State, 29 S.W.3d 556, 562-63 (Tex. Crim. App. 2000), and Clewis v. State, 922 S.W.2d
126, 129 (Tex. Crim. App. 1996) for explanations of the same.
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A person commits the offense of theft if he unlawfully appropriates property with the
intent to deprive the owner of the property. TEX . PEN . CODE ANN . §31.03(a) (Vernon Supp.
2003). To “appropriate” means to acquire or otherwise exercise control over property
other than real property. Id. §31.01(4). Appropriation of property is unlawful if it is without
the owner’s effective consent. Id.§31.03(b). Effective consent includes consent by a
person legally authorized to act for the owner. Id. §31.01(3). For purposes of punishment,
an offense is increased to the next higher offense if the actor was a public servant at the
time of the offense and the property appropriated came into his custody, possession, or
control by virtue of his status as a public servant. Id. §31.03(f)(1).
Appellant contends that, although he exercised care, custody, and control over the
wallet at one point, there is no evidence that he removed money from the wallet. This is
so, he argues, because none of the officers saw him with any money, and none of the
marked bills in the wallet were recovered. Further, an attempted video tape of the event
did not record properly.
Both lack of consent and intent to deprive may be shown by circumstantial
evidence. See Griffin v. State, 614 S.W.2d 155, 159 (Tex. Crim. App. 1981) (holding that
intent to deprive may be determined from acts and words of the accused); Williams v.
State, 591 S.W.2d 873, 875 (Tex. Crim. App. 1979) (holding that lack of consent may be
proved by circumstantial evidence). Further, a defendant may be convicted of theft without
being seen with or found in possession of the stolen property, although lack of possession
is a factor to be considered in a circumstantial evidence case. King v. State, 712 S.W.2d
799, 801 (Tex. App.—Houston [1st Dist.] 1986, pet. ref’d). In Carter v. State, 414 S.W.2d
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663, 665 (Tex. Crim. App. 1967), the evidence that the defendant was the last person seen
in the possession of clothing before its loss was discovered and that she was seen leaving
the store carrying a large purse was sufficient to warrant a finding that the defendant
removed the clothing from the store with the intent to deprive the owner of the same and
appropriate it for her own use, even though the clothing was never recovered.
In this instance, 1) Officer Pitts gave a wallet to appellant containing $30 that she
claimed to have found on the bus; 2) Officer Hernandez observed appellant at all times
after receiving the wallet until the bus reached its last stop and stated that the wallet was
still in appellant’s possession when he exited the bus; 3) Officer Ledet observed appellant
leave the bus at the bus facility and head to the Transit Authority “starter’s” office where
drivers pick up their schedules and turn in found property; 4) Mr. Forbus testified that no
property was handed by appellant to the person in that office; 5) Officer Ledet watched
as appellant headed back toward the bus, went through a wallet, threw the wallet in a trash
can, and left the area; 6) Ledet retrieved the wallet and identified it as the one that had
been given to appellant on the bus; 7) the money originally in the wallet was missing when
the wallet was retrieved by Ledet; and 8) the other items in the wallet had been moved
around. Viewing this evidence in its most favorable light, a rational trier of fact could have
reasonably inferred, beyond reasonable doubt, that appellant unlawfully appropriated the
money with the intent to deprive the owner of it. Further, that finding is not manifestly
unjust or clearly wrong when tested against the entire record. Accordingly, the evidence
is neither legally nor factually insufficient to support the verdict.
We affirm the judgment of the trial court.
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Brian Quinn
Justice
Do not publish.
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