### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-14-00595- CR

Andrew Garr away, Ap pellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F H AY S CO UNTY, 274 TH JUDICI AL DISTRICT NO. CR-11 -09 25, H ONO RAB LE GARY L. STEEL, JUDGE P RESIDING

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

A jury convicted appellant Andre w Gar raw ay of theft. See Tex. Penal Code § 31.03. Punishm ent was assessed at two y ear s’ confine ment in state jail, but the district court susp en d ed imposit ion of the sentenc e and plac ed Ga rr awa y on community supervision for five y ear s. I n six issues with various subparts, Gar ra w a y c o n te nds that the theft char g e should not have been submitt ed to the jury beca

use t h ef t i s n o t a lesser- included offe nse of burg lary , that the char g e err oneously allowed the jury to convict him without requiring unanimous ag ree ment on ever y instance of theft, that the court abused its discr etion in admitting ce rtain exhibit s and testimony over his obje ctions, and that the evidenc e was leg ally insufficient to support his conviction. W e wi l l aff irm the judg ment.BACK GR OUND 1 Andre w Gar

raw ay was char g ed by indictment with twenty counts of b u rgl ar y of a habitation. Eac h count in the indictment alleg ed th e d at e o f t h e offe nse, the county wher e the

2 offe nse occur

red, the name of the victim, lack of consent from the victim, and that Gar raw ay enter ed

eac h habitation “with the intent to commit theft, did attempt to commit theft, and did commit theft.” At trial, the jury hear d testimony from five of the twenty victims named in the indictment, along with testimony from Gar

raw ay , Gar

raw ay ’s acc omplice J ustin Kajileh, and employ ees of the businesses wher e Ga rra way and Ka jileh pawned items. The victims wer e residents of apar t m en t complexes in Hay s County wher e many colleg e students lived. Five victims testified about the items stolen from their respe ctive apar tments, including cre dit car ds, cash, a computer, an iPod, a small di gital came ra, an $800 SL R came ra, a television, a laptop, a saxophone, a g raphing calc ulator, an Xbox console, controllers, and g ames. 3 Owner s of t h e cr edit car ds lear ned that their car ds had been used at sever al stores without their permission. All five of the victims who testified stated that they did not know Gar raw ay and had not g iven him consent to enter their apa rtments or to take the ir proper ty

. Kajileh, Gar

raw ay ’s acc omplice, testified that Gar raw ay was a childhood friend and

co l l ege cl assm ate who asked Kajileh for a loan to g et his car out of the shop. Be cause Kaji l eh

Be cause the State adopts Gar raw ay ’s statement of fac ts, much of the backg round is taken 1 from the pa

rties’ brie fs. The State a

bandoned two c ounts at trial. 2 Police rec overe d some of the items stolen from the residents of the three apa rt m en t 3 complexes and retur

ned those items to the victims. 2did not have the money , he said that he and Gar raw ay turned to bu rgl ar y , targ eting apar tment compl exes in the pre- dawn hours and looking for unlocked doors. Kajileh testified t h at h e an d Gar raw ay started their burg laries in the same apar tment complex wher e Kajileh lived and took things from five apart m en t s o n t h e first night. Acc ording to Kajileh, he stood watch while Gar raw ay enter ed the apar

tment to take money or things that wer e worth money , including a saxophone, TV, and Xbox

. Kajileh testi fied that items taken fr om the first burg lary alone we re sold at pa

wnshops in Austin for $1,500.

After “being so succe ssful the first night,” Kajileh said he and Gar raw ay took mor e things fr om unlocked apar tments a nd sold the m to pawnshops, mainly in A ustin but once or twice t o s h ops in San Antonio. Kajileh testified that sometimes only one of them would enter t h e 4 pawnshop and the other would wait in the car to avoid being seen in the shop toge ther fre quently and reduc e the risk of being rec og nized. Kajileh rec alled that he and Gar raw ay quickly used the cre dit

car ds they took to b u y fo od, g as, and g ift car ds befor e the cre dit car ds wer e deac tivated. Kajileh

ac k n o wl ed ged that the g ift car ds could be used even afte r a victim’s cre dit car d was canc eled. Kajileh testified that any

time he committed a burg lary , Gar raw ay was with him. Kajileh denied that any o f t h e victims named in the indictment had g iven him or Gar raw ay permission to enter their apar tments or to take any

proper ty

. Kajileh testified that he was surprised when Gar raw ay ’s g irlfriend notified him that Gar raw ay wa s ar re s t ed

. Kajileh also testified that he was called in by police for questioning the

Kajileh testified that he and Gar raw ay sold the items to the pawnshops for cash. The items 4 wer e not “pa

wned” beca

use he a nd Gar raw ay did not want the prope rty returne d if it did not sell. 3following wee k, afte r which he confe ssed and provided some of the stolen proper ty in his possession to the police. Contrary to Kajileh’s testimony , Gar raw ay testified that he did not participa te in any of the burg laries and that he only helped Kajileh pawn items. Gar raw ay testified that he was a “broke colleg e student” and that Kajileh offe red him a way to make money . Gar raw ay admitted at trial that pawning the items w as wrong and that the items were probably stolen or “blac k marke t,” but he testified that he never inquired about the source of the items, considering it a “don’t ask, don’t tell” situation. Gar

raw ay also admitted that he used cre dit car ds that he knew did not belong to him. Gar raw ay ag ree d that the pawning of the i tems and usi ng the credit car ds was a common scheme

. He testified tha t the value of all the items he and K ajileh pawne d would be over $1,500 and that a list summarizing all the pawne d items that was admitted into evidenc e appea red acc urate

. Gar

raw ay acknow ledg ed that the value he rec eived fr om the pawnshops was at the bottom end of the items’ value. Police dete ct i v es testified about their investiga tion of the case , and pawnshop manag ers testified about the transac tions involving Kajil eh and Gar raw ay , some of which wer e captur ed on secur ity videotapes and prese nted to the jury

. At the conclusion of the t ri al , the jury convicted Gar

raw ay of theft but acquitted him of th e b u rg lary char g es, and the court suspended i m p osition of his sentenc e, placing Gar raw ay on community supervision for five y ear s. T h i s appea l followed.

4DISCUSSIO N

Thef t charge properly submitt ed to jury

Gar raw ay contends that the theft char g e ag ainst him should not have been submitt ed to the jury beca

use theft was not a lesser- included offe nse of burg lary of a habitation as indicted in this case . Acc ording to Gar raw ay , the indictment is flawe d for not specify ing ever y element of the lesser- included offe nse of theft. An offe nse is a lesser- included offe nse if it is established by proof

o f the same or less than all the fac ts require d to establish the commission of the offe ns e ch ar ged

. Tex. Code Crim. Proc. art. 37.09(1). The Texas Court of Criminal Appea ls has held that one offe nse is a lesser- included offe nse of another if the indictment for the g rea ter-inc lusive offe nse: (1) alleg es all of the elements of the lesser- included offe nse, or (2) alleg es ele ments plus facts fr om which all of the elements of the lesser- included offe ns e may be deduce d. State v. Meru , 414 S.W .3d 159, 162 (Tex. Crim. App. 2013) (citing Ex parte W atson , 306 S.W .3d 259, 273 (Tex. Crim. App. 2009)). Elements of the lesser- included offe nse do not have to be pleade d in the indictment w hen they can be deduce d from fac ts in the indictment. Id. I n t h i s s i t u at i o n, the revie wing court may use a functional-e quivalence test, examining the elements of the lesser offe nse and deciding whether they

are “func tionally

the same or

less than those re quired to prove the cha rg ed off ense.” Id

. A p e r s o n c o mm it s th e o f

f e n s e o f b u r g la ry of a habitation, the g rea ter-inc lusive offe nse alleg ed in this indictment, by entry into a habitation without the eff ective consent of the owner and committing or a ttempting to commit a fe lony , theft, or a n assault. Tex. Penal C ode § 30.02(a )(3)

. The State char g ed Gar

raw ay in eac h count o f h i s indictment with “intentionally or knowing ly , enter [i ng ] a habitation without the eff ective consent of [i dentified victim] , the owner there of, with

5the intent to commit theft, did attempt to commit t h ef t , and did commit theft.” Theft is the appropr iation of proper

ty without the owner ’s eff ective consent with intent to deprive the owner of the proper

ty

. Id

. § 31.03(a)

. I n this case , the offe nse of theft is a lesser- included offe nse of burg lary of a habitation beca

use it is established by proof of the fac ts of burg lary of a habitation as Gar raw ay

was char g ed, less proof of entry into the habitation. See Goad v. State , 354 S.W .3d 443, 446 (Tex. Crim. App. 2011) (apply ing same test in deter mining whether criminal trespass was lesser- included offe nse of burg lary of a habitation); Garcia v. State , 571 S.W .2d 896, 899 (Tex. Crim. App. 1978) (noting in discussion of lesser- included offe nses that elements of burg lary of a habitatio n u n d er section 30.02(a) (3) “c o uld well include the commission of a theft”)

. We overr ule Gar raw ay ’s contention that t h e t h ef

t char g e should not have been submitt ed to the jury as a lesser- included offe nse of his indictment for bur g lary of a ha bitation. No charge err ors

Gar raw ay next contends that in this ag g reg ated- theft case , the char g e err oneously allowed the jury to convict him without requiring unanimous ag ree ment on ever y instance of theft. Howeve r, the Texas Court of Criminal Appea ls has reje cted that content i o n , holding that in ag g reg ated- theft case s, “[e]very instance of theft need not be unanimously ag ree d upon by the jury .” Kent v. Stat e , 483 S.W .3d 557, 562 (Tex. Crim. App. 2 0 1 6 ) (conc luding that “unanimity require s that the jurors ag ree that the threshold amount has been rea ched and that all the elements are proven for e ach spe cific instanc e of the ft that the individual juror believe s to have oc curr ed”)

.

Gar raw ay also complains t h at t he application section of the char g e did not specify which statutory definition of “unlawf ul” appropr iation of proper ty was relied upon for establishing

6theft. See Tex. Pena l Code § 31.03(b) (noting circ umstances in which appropr iation of proper ty is unlawful, inclu ding if it is without owner ’s eff ective consent, or if proper ty is stolen and actor appropr iates proper

ty knowing it was stolen by another ). But when, as here , the indictment for theft does not specify a particular statutory definition of unl awf ul appropr iation of property , the charg e need not c ontain that specific statutory definition either. See Geick v. State , 349 S.W .3d 542, 547 (Tex. Crim. App. 2011) (noting that it is unnece ssary for State to choose betwee n statutory alterna tives for unlawful appropr iation when pleading offe nse of theft); Ex p arte Luna , 784 S.W .2d 369, 371 (Tex. Crim. App. 1 9 9 0 ) (c o n cl u ding that State need not plead manner of

ac q u i s i tion or circumstance s surrounding theft offense because those are evidentiar y matters, that pleading theft offe nse in terms of Penal Code section 31.03(b) constitutes surplusag e, and that State’s theory as to how theft offe nse occur red is irrele vant); see also Ma r t inez v. State , No. 08-13-00363- CR, 2016 Tex. App. L EXI S 5128, at *23 (Tex. App.—El Paso May 13, 2016 ,
no p et.) (not desig nated for publication) (conc luding that beca use indictment for theft did not specific ally alleg e any statutory definition for unlawful appropr iation of proper ty , trial court was not require d to include definition in application p ara g raph of jury char g e). We overr ule Gar raw ay ’s complaints that the jury char g e did not require unanimous ag ree ment on ever y instance of theft and that the application section o f t h e char g e did not specify which statutory definition of “unlawf ul appropr iation” was r elied upon. No abuse of

discretion and n o harm from evidentiary rulings Gar raw ay also contends that the trial court err ed in its evidentiar y ruling s, admitting

cer tain exhibi ts and testimony over his objections to hear say , confr ontation-clause viola t ion, and

7prejudice

. Gar raw ay complains about the admission of exhibi ts consisting of L eadsO nline data and summari es o f t h e L eadsO nline data. Gar raw ay also complains that Kajileh should not have been allowed to testify that none of the victims g ave Gar raw ay consent to enter their apar tments or to take their proper

ty , and that Detec tive Mark J arma n should not have been allowed to testify that he had spoken with the victims listed in the indictment who identified the proper ty as theirs. We revie w a trial court’ s ruling on the admission of evidenc e under an abuse of discre tion standard and uphold the trial court’s ruling if it is within the zone of rea sonable disag ree ment. T i l l man v. State , 354 S.W .3d 425, 435 (Tex. Crim. App. 2011).

1. LeadsOn line data Gar raw ay contends that the tria l c ourt abused its discre tion by admitting an e x hibit of L eadsO nline pawnshop sales data that contai n ed hear say . The State offe red the data throug h Detec tive Adrian Marin under the business-re cords ex ce p t ion to the hear say rule. Tex. R. Evid. 801(d), 803( 6). The State spe cified tha t the office r wa s not the custodi an of rec ords but an “othe r qualified witness” under the business-re cords ex ception. See Tex. R. Evid. 803(6). On appea l, Gar raw ay contends that the business-re cords exception does not apply beca use the State did not offe r the exhibi t throug h an “other qualified witness.” Howeve r, beca use Gar raw ay did not raise that objection i n the t rial court (instead objecting that Detec tive Marin c o uld not testify as a custodian of rec ords), it is not proper ly befor e us on appea l. See Tex. R. App. P. 33.1(a) ; Carty v. State , 178 S.W .3d 297, 305 (Tex. A pp.—Houston [1st Dist.] 2005, pet. ref ’d) ( concluding that appellate complain t about admission of business rec ords based on contention that person was not “anothe r

8qualified witness” under Rule 803(6) did not comport with objection at trial and was not prese rved

for r eview)

. Garrawa

y also contends that even if an exception to the hear say rule ap p l i es , admission of the exhibi t violated his ri gh t to confr ont witnesses ag ainst him. Howeve r, the Confrontation Clause bars only statements that are testimonial in nature ; statements in rec ords that

wer e not cre ated for the purpose of establishing so m e fa ct at trial and that would exis t as part of business rec ords eve n i f n o charg es had ever been filed are not testimonial and do not violate the Confrontation Clause. U.S. Const. amends. VI , XI V; LaMotte v. State , No. 01-15-00368- CR, 2016 Tex. App. L EXI S 7779, at *22 (Tex. App.—Houston [1st Dist.] J uly 21, 2016, no pet.) (mem. op., not desig nated for publication). Her e, beca use the exhibi t consisted of data showing pawnshop transac tions that wer e documented as part of the pawnshops’ ordinary business opera tions, the data was not cre ated for t he purpose of establishi ng some fac t at t rial, and the data woul d have exi sted

even if char g es had never been filed ag ainst Gar raw ay , s u ch data was not testimonial and did not violate the Confronta tion Cl ause. See LaMotte , 2016 Tex. App. L EXI S 7779, at *22. 5

Gar raw ay further contends that the exhibi t was irrele vant and more prejudicia l than prob at i v e. See Tex. R. Evid. 403, 404. Howeve r, the improper admission of evidenc e “will not result in reve rsal when other such evidenc e was rec eived without objection, either befor e or afte r the

Gar raw ay complains on appea l that this exhibi t contains dete ct i ves’ handwriting , but he 5 did not prese rve that complain t wi th an objection at t rial. See Tex. R. App. P

. 33.1(a)

. I t was his burden to narr ow his o b

j ec t i on for the trial court and identify the materia l about which he now complains. See Blackstock v. State , No. 14-03-01415- CR, 2007 Tex. App. L EXI S 72, at *14 (Tex. App.—Houston [14t h Dist.] J an. 9, 2007, no pet.) (mem. op., not desig nated for publication) (citing Brown v. State , 692 S.W .2d 497, 501 (Tex. Crim. App. 1985)). 9co mplained-of ruling .” Coble v. State , 330 S.W .3d 253, 282 (Tex. Crim. App. 201 0 ) (q u o t i n g

Leday v. State , 983 S.W .2d 713, 718 (Tex. Crim. App. 1998)). At trial, Ga rra way arg ued that the dang er of the jury seeing this documentation was that they would g et the impression that “all of this must be stolen.” Her e, the jury hear d ot h er evidence without objection that would g ive them the

same impression, including Kajileh’s testimony that all the proper ty that was pawne d had been taken from someone else and Gar raw ay ’s acknow ledg ment that the items they pawned wer e probably stolen or “black m arke t,” but he took a “don’t ask, don’t tell” a pproac h to the source of t he it ems. We conclude that any err or in admitti ng the L eadsO nline data was harmless, and we overr ule Gar raw ay ’s complaint about its admission.

2. LeadsOn line su m m aries Gar raw ay next complains that the trial court abused its discre tion by admitting two separ ate exhibi ts summarizing the L ead s Online data from the ear lier exhibi t and pawn ticket information that the detec tives prese nted to the pawnshops. The only objection Gar raw ay raised to t h es e s u m m aries at trial and on appea l was that the summaries contained hear say . A summary is admiss i b l e under Texas Rule of Evidence 1006 if the underly ing documents are admissible under

one of the except i o n s t o t h e hear say rule. See Rodriguez v. State , 90 S.W .3d 340, 373 (Tex. App.—El Paso 2001, pet. ref ’d). We have alre ady overr uled Gar raw ay ’s objections to the admission of the exhibi t of L eadsO nline d ata. Gar raw ay does not dispute that the L eadsO nline data was voluminous, that the ex h i b i t containing the same data had alre ady been admitted as a business

rec ord, and that the information contained in the summaries was obtained from that rec ord, thus the trial court’s decision to admit the summaries was within the zone of rea sonable disag ree ment. See

10Till man , 354 S.W .3d at 435; Rodriguez , 90 S.W .3d at 373-74. Fur ther, a ny err or in the admission of the summaries would ha ve bee n harmless, not only beca use the e vidence in the summaries wa s alre ady admitted throug h the L eadsO nline data exhibi t, but also beca use of the testimony from witnesses about the pawn transac tions in those rec ords. See Rodriguez , 90 S.W .3d at 374. We

overr ule Gar raw ay ’s complaint about the a dmission of the L eadsO nline summaries. 3. Kaj ileh’s testim ony abou t lack of consent Gar raw ay contends that the trial court abused its discretion b y ad m itting Kajileh’s testimony that none of the victims named in the indictment had g iven Gar raw ay consent to enter their apar tments or to take any of their proper ty beca use the testimony contained hear say and violated the Confrontation Clause. Hea rsay is a statement, other than one made by the decla rant while testify ing at t he trial or hearing , offe red in evidenc e to prove the truth of t he matter asser ted. T ex . R

. E v i d

. 801(d). A “stateme nt” for purposes of the hear say rule “means a person’ s oral or written verba l expression, or

nonverba l conduct that a person intended as a substitut e for verba l e x pression.” Id

. R

. 801(a)

. Her e, Gar

raw ay complains of no “stateme nt,” as define d in Rule 801(a) , but rat h er Kajileh’s trial testimony about the absenc e of a statement from any of the victims, which i s not hear say . Cf. id. ; see Riley v. State , 249 S.W

. 1065, 1065 (Tex. Crim. App. 1923) (re jecting hear say challeng e to dau gh ter’s testimony that her mother had not consente d to appellant’ s taking of mother’s proper

ty ). The Confrontation Clause of the Six th Amendment g uara ntees the acc used the ri gh t t o confr ont the witnesses ag ainst him. U.S. Const. amends. VI , XI V; Mele ndez-Diaz v. Massachusetts , 557 U.S. 305, 309 (2009). Her e, because Kajileh appear ed at trial and was crossexamined by Gar

raw ay ’s counsel, there was no Confrontation Clause violation. See Mele ndez-Diaz , 557 U.S. at 309. Be cause the t rial court’s admission of Kajileh’s testimony about lack of consent

11was within the zone o f re as o n ab l e disag ree ment, see Till man , 354 S.W .3d at 435, we overr ule Gar raw ay ’s complaint that the trial c ourt abused its discre tion by admitting it. 4. Det ect ive Jarm an’s test im ony that theft victim s identif ied property as theirs Gar raw ay also contends that the trial court abused its di s cr eti on by admitting Detec tive J arma

n’s testimony that the theft victims identified stolen proper ty as theirs. Acc ording to Gar raw ay , such testimony included hear say and violated the C o nfrontation Clause. Howeve r, Gar raw ay failed to raise his Confrontation Clause objection when this testimony was offe red and has not preser ved it for our

revie w. See Tex. R. App. P

. 33.1(a) ; W right v. Stat e , 28 S.W .3d 526, 536 (Tex. Crim. App. 2000) (ho l d i n g t h at hear say objection does not prese rve Confrontation Clause objection for appellate revie w)

. Gar raw ay also failed to raise his hear say objection and has not prese rved it a s to D etec tive J arma n’s testimony

about all but one of the victims who identified the stolen proper

ty as theirs. See Tex

. R

. Ap p . P

. 3 3 .1(a)

. As to that one victim, H.L .-B ., Detec tive J arma n testified to substantially the same evidenc e without objection when he stated that the victims

wer e called to c ome to the police depar tment, tha t he persona lly

spoke with ea ch and ever y victim

as they came in, that he signe d the proper ty return sheets, and that he returne d a stolen Xbox 360 to H.L .-B

. See Benitez v. State , No. 05-13-00199- CR, 2014 Tex. App. L EXI S 7651, at *16 (Tex. App.—Dallas J uly 15, 2014, pet. ref ’d) (not desig nated for publication) (conc luding that any err or in admission of evidenc e is rende red harmless when substantially same evidenc e admitted without objection) (citing Coble , 330 S.W .3d at 282). We conclude that any err or i n ad m i t t ing Detec tive J arma n’s testimony

was ha rmless, and we overr

ule Gar raw ay ’s complaint about its admission.

12Suf

fi cient e vidence supp orte d Garr away’s conviction

Gar raw ay ’s final complaint is that the evidenc e at trial was insufficient to support his conviction for theft of proper ty valued at $1,500 or more but less than $20,000. Under the leg al-suf fi ci ency standard, we view the evidenc e in the light most favor able to the verdic t and deter mine whether “any rational trier of fact could have found the essential element s o f the crime b ey o n d a rea sonable doubt.” Jack son v. Virginia , 443 U.S. 307, 319 (1979); Brooks v. S t a t e , 323 S.W .3d 893, 899 (Tex. Crim. App. 2010). We ma y not substitut e our judgme nt for that of the jury by ree valuating the weig ht or cre dibilit y of the evidenc e, but must defe r to the jury ’s resolution of conflicts in the evidenc e, weig hing of the testimony , and draw ing of rea sonable infere nces from basic fac ts to ultimate fac ts. Isassi v. State , 330 S.W .3d 633, 638 (Tex. Crim. App. 2010). We apply the same standard to direc t and circ umstantial evidenc e. Id

. Circumstantial evidenc e is as probative

as direc t evidenc e in establishing the g uilt of a defe ndant, and circ umstantial evidenc e alone can be sufficie nt to establish g uilt. Hooper v. State , 214 S.W .3d 9, 13 (Tex. Crim. App. 2007). Eac h fac t need not point direc tly and independe ntly to appellant’ s g uilt, as long as the cumulative forc e of all the incriminating circ umstances is suffic ient to support the conviction. Id

.

Conviction for theft require s proof of an unlawful appropr iation of proper ty with the intent to deprive the owner of the proper ty

. Tex. Penal Code § 31.03(a) ; see also Luna , 784 S.W .2d at 371 (“So lon g as the evidenc e is sufficie nt to prove that appellant unlawfully appropr iated the proper ty in question with the ‘intent to deprive the owner of the proper ty ’ appellant’ s conviction must stand.”). Gar

raw ay ’s challeng e to the sufficie ncy of the evidenc e is tha t the re is no evide nce

as to: (1) the identity of the majority of the owner s; (2 ) t h eir lack of consent; and (3) a proper ty value falling within the state jail f elony rang e. I n Gar

raw ay ’s view, the evidenc e supported only a
13misdemeanor theft of proper ty valued at $500 or more but less than $1,500. Specifica lly , Gar raw ay acknow ledg es that the evidenc e at tria l supported a va lue of $1,270: $800 for a came ra belong ing to C.S., $350 for a saxophone belong ing to A.Z ., and $120 for an Xbox, controllers and other items belong ing to A.D

.

We conclude that the evidenc e in this rec ord was leg ally sufficie nt to identify the victims, prove lack of consent, and prove the value of the proper ty to the jury

. Five victims testified at trial, providing their identities and testify ing that they did not know Gar raw ay and had not g iven him consent to take or use their proper ty

. As to the rema inder of t h e v i ct i m s , Detective J arma n testified about their identities, how he obtained them, and that he persona lly returne d their proper ty to them. Kajileh testified that neither he nor Gar raw ay had co n s en t to take any of the victims’ proper ty

. Both Gar

raw ay and Kajileh sold items to pawnshops, and Gar raw ay testified that he knew the items wer e probably stolen or “blac k marke t” and that pawning the items was wrong . When making those sales to the pawnshops, Ga rra way and Ka jileh repre sented that they wer e owners of the proper

ty being sold, showing an intent to deprive the true owner s of those items. Ga rr aw ay admitted at trial that the pawning of the items was done pursuant to a common scheme

. Detec tive J arma n testified that his calc ulation of the monetary value that Gar raw ay and Kajileh rec eived from the pawnshops was $2,875. The L eadsO nline data and pawn tickets listed the pay ments to Gar

raw ay and Kajileh from the pawnshops. Gar raw ay acknow ledg ed that the value he rec eived from t he pawnshops was at t he bott om end of the i tems’ value. Ga rr aw ay t est ified t hat t he value of all the items he and Ka

j ileh pawne d would be over $1,500 and that the list summarizing all the pawne d items that was admitted into evidenc e appea red acc urate to him. Fur

ther, Gar raw ay testified that he had previously purcha sed g ame sy stems and controllers for himself, that the new value of an Xbox

14g ame sy stem when he boug ht it was about $400 (althoug h Detec tive J arma n had testified that their cost was betwee n $250 and $299 new)

. Evidence at trial showed at least 2 Xbox g ame sy stems sold to the pawnshops by Gar

raw ay wer e returne d to their owner s, H.L .-B

. and B.S. The value of these g ame sy stems (whe ther valued using Detec tive J arma n’s testimony of $250 or Gar raw ay ’s testimony

o f $400 eac h) plus the $1,270 value that Gar raw ay alre ady acknow ledg ed was show n at t ri al , exceeds $1,500.

The evidenc e at trial, viewed in the light most favor able to the verdic t, was sufficie nt to allow a rational jury to find b ey o n d a rea sonable doubt that Gar raw ay committed the lesserincluded offense of theft. See Brooks , 323 S.W

. 3 d at 8 9 9. Acc ording ly , we overrule Garr awa y ’s complaint about the sufficie ncy of the evidenc e suppo r ting his conviction for theft of proper ty valued at $1,500 or more but less than $20,000. CONCLUSION

We affir m the judgme nt of conviction.

J eff Rose, Chief J ustice Be fore Chief J ustice Rose, Jus tices Goodwin a nd Field Affir med Filed: Apr il 11, 2017 Do Not Publish

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