Gauer v. State, 08-15-00118-CR

GREGORY ALAN GAUER, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 08-15-00118-CR

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

April 28, 2017

Appeal from the 82nd District Court of Falls County, Texas

(TC# 9395)

OPINION

Appellant was charged by indictment with one count of theft. At trial, he raised a "mistake of fact" defense, contending that he had a reasonable belief that he had been given permission to take the property from someone he believed had either actual or apparent authority to act on behalf of the property's owner. The jury rejected his defense and convicted Appellant as charged in the indictment, and assessed punishment at two years in a state jail facility. In his sole issue on appeal, Appellant contends that the jury's verdict was not supported by legally sufficient evidence, claiming that no rational juror could have rejected his "mistake of fact" defense. We affirm.

FACTUAL SUMMARY

In April of 2014, Connie LaFrance was living in a home in Golinda, Texas, located next door to property owned by Rodney Green, where the alleged theft took place. Green's house had partially burned to the ground in December of 2013, and had been sitting vacant while Green was waiting to settle his claim with his insurance company. Green, who was living in Waxahachie at the time, testified that he would periodically return to Golinda to check on the property, and that he had placed a safety fence around the property as well as "no trespassing" signs on the property.¹ Green also testified that he had entered into a contract for the sale of the property to LaFrance in January of 2014, but at the time of the alleged offense, he was still the owner of the property.

On the morning of April 9, 2014, Connie LaFrance, was inside her home when she heard a noise on Green's property, which sounded like "hammering" or "banging." When she looked outside, she noticed a man, whom she later identified as Appellant, "bent down and working on the air conditioner" in Green's "burned-down house." LaFrance went outside to investigate and observed a second man, later identified as Appellant's co-defendant, Jerod Yepma, who came from behind the fireplace in the back of the house, with tools in his hand, where another air conditioning unit was located. LaFrance confronted Yepma, stating: "You're not supposed to be over there." LaFrance recalled that Yepma asked her who she was and if she were the owner of the property. In reply, LaFrance stated: "No, but I have a contract on the property."

At that point, LaFrance observed Appellant "come around the corner," holding what appeared to be "items that he had taken off the air conditioner." Although the two men admittedly did not say anything threatening to her, LaFrance testified that she became "scared," in part because of the "look" they gave her, and because they were carrying large wrenches, which she believed could have been used as weapons. Because of her fear, LaFrance told Yepma: "Okay.Go ahead and take what you want." According to LaFrance, she had no direct communications with Appellant.

LaFrance left Green's property and returned to her home, where she called her husband, who then called 911 on her behalf. A few minutes later, LaFrance drove away from her home, but parked her car on a nearby street where she could still see the two men. While she was parked, she observed a white car, being driven by a female, later identified as Appellant's sister-in-law, pull up to Green's property, and observed the two men "loading stuff" into the car, which she believed to be "parts off the air conditioner." LaFrance was also able to observe the license plate of the vehicle as it drove off.

During this time, LaFrance was on the phone with a 911 operator who had been contacted by LaFrance's husband, and she was able to provide the 911 operator with a description of the car, as well its location and the direction it was going. LaFrance followed the car for a short distance until law enforcement officers pulled the car over, and arrested its occupants, including Appellant. The arresting officers found "several air-conditioning compressors, copper tubing [and] copper wire" in the trunk of the vehicle, as well as "copper," a portable drill, and gloves on the floorboard of the back seat.² The officers recorded their encounter with the individuals on their dash cam; the recording, which was played for the jury at trial, revealed that the two men admitted to taking the copper and the air compressors from the "burned house," but asserted that they had had permission from a "neighbor" to take the items.

Following the arrest, one of the officers testified that LaFrance informed him that she had authority from Green to "watch over the property."³ However, at trial, both LaFrance and Green denied that LaFrance had any such authority, and further denied that she had the right to exercise any control over the property.

Appellant's Defense

At the close of the State's evidence, Appellant's attorney moved for an "instructed verdict of not guilty," arguing that the State had failed to prove beyond a reasonable doubt that Appellant was not laboring under a "mistake of fact" when he believed that LaFrance had the authority to give consent to take the items from Green's property. The trial court denied the motion, and Appellant thereafter presented the testimony of his co-defendant, Jerod Yepma, who had previously pled guilty to the theft and had been placed on deferred adjudication probation. Yepma testified that he had a friend living in the area near Green's property, and that prior to the day of the alleged offense, he and Appellant had noticed that Green's "burned-out house" had been sitting vacant for quite some time, and that it had copper wiring running through it, which he believed had value as "scrap." He claimed that he and Appellant walked together to Green's house from the friend's house that morning, and knocked on LaFrance's door to seek permission to take some copper from Green's house, explaining that he believed the two properties were so close together that they were likely owned by the same person. Yepma recalled that after "banging" on her front door several times, LaFrance walked out of the back of her house to speak with them. According to Yepma, he asked LaFrance for permission to take some copper from the property to sell as"scrap," in order to get some "[g]as and cigarette money," and she replied as follows: "Yeah, I guess so. Just get what you need this one time and leave and don't come back."⁴ Although he never indicated that LaFrance identified herself as having any ownership or other possessory rights over Green's property, he believed LaFrance had given them "consent to take the property" at that time. Yepma claimed that he did not do anything that could have been considered to be "intimidating or coercive or threatening" to obtain her consent. In addition, he claimed that neither he nor Appellant had any tools with them when they arrived at Green's property, and that they removed the copper from the air conditioning units with their hands, claiming that everything was so "busted up" at the house that the wire "broke pretty easy." According to Yepma, the tools found in the vehicle at the time of the arrest belonged to Appellant's brother, who owned the vehicle.

Appellant did not take the stand, but his attorney argued during both his opening statement and his closing arguments that Appellant and his codefendant had "permission to take what they took" from LaFrance, and that LaFrance either did in fact have the actual authority to grant them permission to take the property, as she was the "caretaker" of Green's property, or that Appellant was laboring under a mistake of fact and reasonably believed that she had the authority to do so. Counsel further argued that any such permission was given without any deception, threats or coercion, and that Appellant therefore did not take the property without the effective consent of the owner, as required for a theft conviction.

The Jury's Verdict

As requested by defense counsel, the trial court provided the jury with an instruction on Appellant's "mistake of fact" defense, informing the jury that if it found Appellant had "acted under a mistake of fact, that is, a reasonable belief that he had consent to take the property, or if you have a reasonable doubt thereof, you will find the Defendant not guilty." The jury, however, impliedly rejected that defense, and found Appellant guilty of theft, as charged in the indictment, and assessed punishment at two years in a state jail facility, together with a $10,000 fine. This appeal followed.

SUFFICIENCY OF THE EVIDENCE

Appellant contends that the evidence was not legally sufficient to support a finding that he took the copper from Green's property without the effective consent of the owner, arguing two related points: (1) that the undisputed evidence established that LaFrance was a "special owner" of Green's property who had actual authority to grant him permission to take the property; or (2) that he was laboring under a reasonable, albeit mistaken, belief that LaFrance had the authority to grant him permission, and that no rational juror could have rejected his "mistake of fact" defense.

Standard of Review

The legal-sufficiency standard is the only standard a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App. 2010); see also Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979). In a legal sufficiency analysis, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. In re R.R., 420 S.W.3d 301, 303(Tex. App.—El Paso 2013, no pet.) (citi...