Opinion issued November 17, 2016

In The

Court of Appeals 

For The 

First District of Texas 

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NO. 01-16-00069-CR

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MARCO ANTONIO MARTINEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 15

Harris County, Texas

Trial Court Case No. 2032201

MEMORANDUM OPINION

A jury convicted appellant, Marco Antonio Martinez, of theft of property 

valued between $500 and $1500. The trial court assessed punishment at one year 

confinement, which it suspended, placing appellant under community supervision 
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for one year. In two related points of error, appellant contends the evidence is 

legally insufficient to support the conviction. We affirm.

BACKGROUND

Appellant is in the newspaper business and runs LaNeta Newspaper in 

Houston, Texas. The complainant, Luis Fernando Castro, is the supervisor of a 

newspaper distribution company. On June 5, 2015, appellant and Castro got into 

an argument at a Super K convenience store over whose newspapers would be 

displayed in the rack. Appellant hit Castro in the face with a newspaper. Castro 

retaliated by punching appellant. At some point in the altercation, Castro dropped 

the cell phone he was holding. Castro testified that appellant picked up Castro’s 

cell phone, showed it to him, and then walked out of the store and smashed the cell 

phone. Castro testified that he never got his cell phone back. In contrast, appellant, 

testifying in his own behalf, claimed that the cell phone he picked up off the floor 

was his own, which he had dropped, along with his sunglasses, during the fight.

Officer V. Vo of the Houston Police Department testified that he and his 

partner were dispatched to the disturbance at the Super K convenience store. 

Officer Vo testified about the missing cell phone as follows:

And it was confusing for us at first to determine whose phone that he 

had actually grabbed, because they both have—apparently, they both 

have the same kind of phone, it was an iPhone 6 Plus, and they were 

similar in color. The complainant’s phone was gold in color. 

[Appellant’s] phone, I believe it was light or gold in color as well.
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Officer Vo further testified that, after reviewing video footage of the altercation, he 

was convinced that the cell phone that appellant picked up off the floor belonged to 

Castro, not appellant, because the video clearly showed appellant slamming the 

cell phone against a concrete pillar, which would have caused some damage to the 

cell phone. Moreover, Vo had seen appellant’s cell phone when he allowed 

appellant to call his wife from the store, and it was not damaged in any way. Thus, 

Vo concluded that the cell phone that appellant picked up off the floor and 

slammed into the pillar belonged to Castro, not appellant. Accordingly, appellant 

was arrested and charged with theft.

SUFFICIENCY OF THE EVIDENCE

In two related points of error, appellant contends the evidence is legally 

insufficient to support his conviction. Specifically, appellant argues that he had no 

intent to deprive Castro of his cell phone because it belonged to him, not Castro.

Standard of Review and Applicable Law

We apply the legal standard for sufficiency of the evidence articulated in 

Jackson v. Virginia, 443 U.S. 307 (1979). Gear v. State, 340 S.W.3d 743, 746 

(Tex. Crim. App. 2011); Pena v. State, 441 S.W.3d 635, 640 (Tex. App.—Houston 

[1st Dist.] 2014, pet. ref’d). Under this standard, we “must consider all of the 

evidence in the light most favorable to the verdict and determine whether, based on 

that evidence and any reasonable inferences therefrom, a rational fact finder could 
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have found the essential elements of the crime beyond a reasonable doubt.” Gear, 

340 S.W.3d at 746. We cannot substitute our judgment for that of the jury by 

reevaluating the weight or credibility of the evidence; instead, we defer to the 

jury’s resolution of conflicts in the evidence. Isassi v. State, 330 S.W.3d 633, 638 

(Tex. Crim. App. 2010).

A person commits theft “if he unlawfully appropriates property with intent 

to deprive the owner of property.” TEX. PENAL CODE ANN. § 31.03(a) (West Supp. 

2016). Given that “intent to deprive the owner of property” is an element of theft, 

see Griffin v. State, 614 S.W.2d 155, 158 (Tex. Crim. App. 1981), we must 

determine whether any rational trier of fact could have found this element beyond a 

reasonable doubt upon the evidence presented at trial. See Jackson, 443 U.S. at 

319, 99 S. Ct. at 2789.

Analysis

Appellant argues that there was no evidence of intent to commit theft 

because “[a]ppellant went back to pick up his [own] sunglasses and cell phone and 

not with the intent to commit theft.” This is based on appellant’s testimony that he 

picked up his own cell phone, and not Castro’s. However, Castro testified that the 

cell phone that appellant picked up off the floor, and subsequently smashed on a 

concrete pillar outside the store, belonged to Castro, not appellant. Appellant also 

contends that there were discrepancies in the State’s evidence. Specifically, he 
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points out that Castro testified that appellant left after smashing the cell phone, 

while Officer Vo testified that appellant was still at the scene when he arrived. 

These apparent discrepancies in the testimony are within the jury’s province to 

resolve, and we may not re-evaluate the weight and credibility of the record 

evidence and substitute our judgment for that of the factfinder. See Isassi, 330 

S.W.3d at 638. 

Viewing the evidence in the light most favorable to the verdict, as we must, 

we conclude that a rational jury could have convicted appellant of theft. Castro 

testified that appellant picked up Castro’s cell phone, showed it to Castro, and then 

smashed it outside the store. The jury, in fact, had surveillance video from the 

convenience store, as well as still photographs, to support Castro’s testimony. The 

jury could have disbelieved appellant’s testimony that the cell phone he picked up 

was his own, especially because it is unlikely that appellant would smash his own 

cell phone, and Officer Vo saw appellant using his own undamaged cell phone 

after the altercation. We therefore hold that the evidence is sufficient to support 

appellant’s conviction for theft. See Gear, 340 S.W.3d at 746.

We overrule appellant’s two related points of error.
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CONCLUSION

We affirm the trial court’s judgment.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Jennings and Bland.

Do not publish. TEX. R. APP. P. 47.2(b).