OPINION A jury convicted appellant, Anthony Mottin, of theft over $2,500 but less than $30,000, and the trial court assessed punishment at 180 days’ confinement in a State Jail.[1] In two issues on appeal, appellant contends that (1) the evidence is legally insufficient and (2) the trial court erroneously gave a jury instruction that was a comment on the weight of the evidence. We affirm. BACKGROUND Richard Malone, a field manager for Air Liquide Pipeline who worked in the Chambers County office, testified that his co-worker, Brian Woods, would often park his airboat at the office. Sometime after Thanksgiving 2016, Malone arrived at work and noticed that the chain on the gate had been cut and Woods’s airboat was missing. Malone called Woods, who was traveling on business, and told him about the missing boat. Woods had not given anyone permission to take the airboat, so the airboat was reported as stolen. Detective P. Vest began his investigation on December 5, 2016 and shortly thereafter, he received a tip about a stolen airboat located at Labarge Coating, a business located in the Channelview area of Harris County. Detective Vest went to Labarge Coating and found two airboats parked between some buildings; one of the boats was the stolen airboat as indicated by the registration numbers. The second airboat belonged to appellant. Detective Vest identified the airboat that belonged to Woods by its registration numbers. When a wrecker arrived to tow the boat, appellant, who worked at Labarge Coating, approached Detective Vest and told him that he had been in a local bar “down the road from where the boat was” a while back when a man approached him and attempted to sell the him the airboat. After some initial discussions about the price, appellant said that he and a friend went to look at the airboat at Calloway Towing, and, after it started, appellant told the man selling the airboat to “go take it over there to where we ended up locating it—I guess the shop or the buildings” at Labarge Coating. Appellant told Detective Vest that the man who sold him the airboat was named “Don”, and that he, appellant, had been in possession of the airboat for a few weeks. Appellant stated that after the first week he started to think it was a “bad deal,” but he neither called Texas Parks and Wildlife to see who owned the airboat, nor did he call the police. Appellant explained that he was going to use some parts from the airboat on another airboat and then sell the airboat to someone. Appellant also told Detective Vest that he was not going to do anything until he was provided the airboat’s title. Appellant explained that he did not initially suspect the airboat was stolen but later suspected “something” might be “wrong.” After talking with appellant, Detective Vest asked appellant to sign a written statement. After initially saying that he would, appellant told the detective that he would like to think about it over the weekend, but that he would contact the detective on Monday and sign a written statement. Appellant never did so, and the telephone number he gave Detective Vest was not good. Appellant left town without ever talking to police again. There is no direct, physical evidence as to who actually took the boat from the Air Liquide premises in Channelview. Appellant, testifying on his own behalf at trial, explained that he was into collecting and using all types of motors, from plane motors to lawnmower motors. He frequently buys motors online, at swap meets, and sometimes, as here, when he is approached by people offering to sell an engine. Appellant claimed that a few days after he and a friend went to look at the boat’s motor at Callaway’s Towing, appellant “went to work one day” at his jobsite and discovered the airboat there. He previously told the seller “that he would not buy it without a title or some type of paperwork.” He was waiting for someone to offer a price and “bring the title or whatever with them.” Appellant did not know the status of the airboat, and he claimed that he did not know it was stolen until Detective Vest told him. Mark Greenly, the general manager of Labarge Coating, explained that appellant ran the machine shop at the facility and rebutted the idea that Labarge Coating was anything other than a reputable company. He agreed that appellant was constantly finding old parts and motors that could be repurposed for use at his work, or for his own personal use. Greenly testified that appellant’s work had been legal for 10 years and that appellant told Greenly that he did not know who delivered the airboat to their facility. John Shulkers, a distributor for ExxonMobil and vendor who worked with appellant, explained that he never saw anything illegal at the Labarge facility and testified that appellant was a “very straight shooter.” The State was allowed to impeach Shulkers with evidence that appellant had a criminal record, which was unknown to defense counsel prior to this testimony. Appellant had been in the penitentiary for “theft, felony theft.” Shulkers was not aware that appellant had been convicted of felony theft in 2005. SUFFICIENCY OF THE EVIDENCE In his first issue, appellant contends that “the evidence is insufficient to prove the offense of theft as alleged in the indictment, or that any theft occurred at all.” Specifically, appellant argues that there is no evidence that the property was appropriated without the “effective consent” of the owner and that “mere possession of a stolen item, without more, is insufficient to establish theft of that item.” Standard of Review We review appellant’s challenge to the sufficiency of the evidence under the standard enunciated in Jackson v. Virginia, 443 U.S. 307 (1979). See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). We examine all the evidence in the light most favorable to the jury’s verdict to determine whether any “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 318–19; Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Evidence is insufficient under this standard in four circumstances: (1) the record contains no evidence probative of an element of the offense; (2) the record contains a mere “modicum” of evidence probative of an element of the offense; (3) the evidence conclusively establishes a reasonable doubt; and (4) the acts alleged do not constitute the criminal offense charged. See Jackson, 443 U.S. at 314, 318 n.11, 320; Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009); Gonzalez v. State, 337 S.W.3d 473, 479 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). The jury may reasonably infer facts from the evidence presented, credit the witnesses it chooses, disbelieve any or all the evidence or testimony proffered, and weigh the evidence as it sees fit. Galvan-Cerna v. State, 509 S.W.3d 398, 403 (Tex. App.—Houston [1st Dist.] 2014, no pet.). An appellate court determines “whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict.” Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). In viewing the record, direct and circumstantial evidence are treated equally. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). “Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt.” Id. (quoting Hooper, 214 S.W.3d at 13). An appellate court presumes that the factfinder resolved any conflicting inferences in favor of the verdict and defers to that resolution. See Jackson, 443 U.S. at 326. Applicable Law Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The “hypothetically correct” jury charge is “one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.” Id. To obtain a guilty verdict under Section 31.03, the theft statute, the State had to prove beyond a reasonable doubt that appellant “unlawfully appropriate[d] property with [the] intent to deprive [Woods] of property.” TEX. PENAL CODE §31.03. “Appropriate” means “to acquire or otherwise exercise control over property other than real property.” TEX. PENAL CODE § 31.01(4)(B). Appropriation of property is unlawful if (1) it is without the effective consent of the owner; or (2) the property is stolen and the actor appropriates the property knowing it was stolen by another.[2] TEX. PENAL CODE § 31.03(b)(1), (2). Theft is a state jail felony if the value of the property exceeds $2,500 but is less than $30,000. TEX. PENAL CODE § 31.03(e)(4)(A). Unlawfully Appropriating Property Appellant argues that, by alleging in the indictment that the appropriation was unlawful because it was “without the effective consent” of the owner under section 31.03(b)(1), rather than that “the property [was] stolen and the actor appropriate[d] the property knowing it was stolen by another” under section 31.03(b)(2), the State has pleaded a more specific version of theft than necessary and must prove the offense as alleged. Appellant argues that, because no one saw appellant himself remove the airboat from Air Liquide’s property, the State may have shown that he received stolen property [which was not pleaded], but it has failed to prove he took the property “without the effective consent” of the owner. Stated another way, appellant contends that the evidence is insufficient because it does not prove the specific type of “unlawful appropriation” alleged in the indictment. We agree with appellant that “[w]hen the State unnecessarily pleads a statutory definition that narrows the manner and means in which an offense may be committed, that definition is ‘the law as authorized by the indictment’ and thus the allegation must be proved beyond a reasonable doubt.” Geick v. State, 349 S.W.3d 542, 548 (Tex. Crim. App. 2011).[3] However, we do not agree that, to show that the appropriation was “without the effective consent” of the owner, there had to be direct, physical evidence that appellant stole the property. In Chavez v. State, the Texas Court of Criminal Appeals was called to decide whether the unexplained possession of recently stolen property would support a conviction when the State alleged that the possession was unlawful under 31.03(b)(2), i.e., that the property was stolen and the actor appropriated the property knowing it was stolen by another. 843 S.W.2d 586 (Tex. Crim. App. 1992). In its opinion, the court discussed the interplay between the two methods of proving “unlawful appropriation” as follows: Our decisional law has long permitted the conviction of a person for theft if the evidence shows him to have been found in possession of recently stolen property without offering an explanation inconsistent with guilt when first called upon directly or circumstantially to do so. Sutherlin v. State, 682 S.W.2d 546 (Tex. Crim. App. 1984). Although often denominated a presumption in our earlier opinions, the rule merely states conditions under which reviewing courts may regard the evidence as sufficient for a rational finding of guilt. Hardesty v. State, 656 S.W.2d 73, 76–77 (Tex. Crim. App. 1983). This rule of sufficiency is necessarily based upon a belief that those who steal property usually remain in possession of it for some time afterwards and that persons acquiring property honestly during such an interval are typically willing to explain how they came by it. We have been disinclined, however, to apply the same rule when evaluating sufficiency of the evidence to prove receipt of property, knowing it to have been stolen by another. Under such circumstances, we have not thought it probable enough for criminal conviction that those who receive property from a thief usually know that it was stolen by him. Accordingly, our decisions hold that more proof than the mere circumstance of recent, unexplained possession is required to sustain a conviction in such cases. Hynson v. State, 656 S.W.2d 460 (Tex. Crim. App. 1983). Dissimilar treatment of these related evidentiary problems would not have seemed remarkable until 1985, when it was discovered that consolidation of theft offenses by the latest revision of our Penal Code had effectively eliminated any erstwhile distinction between theft and receiving stolen property. McClain v. State, 687 S.W.2d 350 (Tex. Crim. App. 1985). Under the 1925 Code, those crimes were proscribed by different statutes, but they now appear as subdivisions of the same general theft law. Accordingly, we held in McClain that “knowing the property possessed ‘was stolen by another’ is merely a subset of knowing the possession is ‘without the owner’s consent.’” 687 S.W.2d at 354. To plead theft, therefore, the State has only to allege that the accused appropriated property unlawfully with intent to deprive the owner of it. The manner in which he came to possess it, whether by initially taking it from the owner or by subsequently receiving it from someone who did, is not an essential element of theft under current law. Today, evidence sufficient to show an accused exercised control over property without consent of the owner, intending to deprive him of it, is always enough to prove theft. Evidence of various kinds may serve the purpose. Receiving property from another, knowing it to be stolen by him, establishes the offense because it is tantamount under McClain to a knowing exercise of control without consent of the owner. Unexplained possession of recently stolen property also establishes the offense, because it has long been considered sufficient to prove the same elements. And now, because the receipt of stolen property is no longer an offense requiring proof of different statutory elements, it follows that proof of unexplained possession is also sufficient for conviction in cases where the accused in fact received the stolen property from someone other than the alleged owner. To the extent that Hynson held otherwise, it was overruled in McClain by necessary implication. Nevertheless, while it is no longer necessary to plead the receipt of property knowing it was stolen by another, it is clear that an actual pleading of these matters does commit the State to prove them at trial. Under McClain, the knowing receipt of stolen property is a subset of appropriation without effective consent. Pleading it, therefore, represents a more specific allegation of that which it is necessary to prove in any case. And our law is well settled that unnecessarily specific allegations of this kind are not merely surplusage, but must be proven to sustain conviction. Whetstone v. State, 786 S.W.2d 361, 364 (Tex. Crim. App. 1990); McWilliams v. State, 782 S.W.2d 871, 873–874 (Tex. Crim. App. 1990), and cases cited therein. Certainly[,] this is true where, as here, the jury was in fact instructed that it might not convict without finding such elements to be true beyond reasonable doubt. See Boozer v. State, 717 S.W.2d 608 (Tex. Crim. App. 1984). The impact of Hynson under these circumstances, and the extent to which it survives McClain, is that unexplained possession of recently stolen property is not sufficient proof of theft in any case where the State is required by its pleadings specifically to demonstrate that the accused received property, knowing it was stolen by another. Chavez, 843 S.W.2d at 587–89 (emphasis added). What Chavez makes clear is that a theft indicted under 31.01(b)(2) may be proved by the unexplained possession of stolen property, but the State must also prove that the property was stolen by another because “the knowing receipt of stolen property is a subset of appropriation without effective consent,” which is “a more specific allegation of that which is necessary to prove in any case.” Id. at 588. However, in this case, appellant was not indicted under 31.01(b)(2), but was indicted under the more general 31.01(b)(1). For such a general theft allegation, the State could, under circumstances discussed below, rely on appellant’s unexplained possession of stolen property to prove the theft. Thus, we turn to whether those conditions are met in this case. Unexplained Possession of Recently Stolen Property—Sufficiency of the Evidence We begin by noting that Brian Woods testified that he did not consent to allowing anyone to remove his airboat from the Air Liquide premises, where it was stored. And, appellant contends there is no evidence he stole the airboat because no one saw him do it and no evidence places him at the Air Liquide business from which the airboat was taken. However, Texas law “has long permitted the conviction of a person for theft if the evidence shows him to have been found in possession of recently stolen property without offering an explanation inconsistent with guilt when first called upon directly or circumstantially to do so.” Chavez, 843 S.W.2d at 587 (citing Sutherlin v. State, 682 S.W.2d 546 (Tex. Crim. App. 1984)); see Poncio v. State, 185 S.W.3d 904, 904-05 (Tex. Crim. App. 2006); James v. State, 48 S.W.3d 482, 485 (Tex. App.—Houston [14th Dist.] 2001, no pet.). This rule is based upon a belief that those who steal property keep it for some time and those who acquire property honestly during such an interval are typically willing to explain how they obtained it. Chavez, 843 S.W.2d at 588. This unexplained possession of recently stolen property permits an inference of guilt for the offense of theft. See Sutherlin, 682 S.W.2d at 549; James, 48 S.W.3d at 485; see also Chavez, 843 S.W.2d at 587-88. However, before the inference may be invoked, the State must establish that the possession was personal, recent, unexplained, and involved a distinct and conscious assertion of a right to the property by the defendant. Sutherlin, 682 S.W.2d at 549; see James, 48 S.W.3d at 485. Personal Possession and Distinct and Conscious Assertion of a Right to Property We will consider these two requirements together because the same evidence supports both. The airboat was parked at appellant’s place of business in a location over which he exercised control and was hidden from view of the road. The airboat had been in appellant’s possession for several weeks. Appellant asserted a right to have the airboat in his possession because he claimed to have told the seller, Don, to bring it to his place of business when they were negotiating for its sale. The jury could have rationally concluded that appellant’s possession of the airboat was personal and that he exercised a distinct and conscious assertion of a right to it when he attempted to explain why it was properly parked, at his direction, at his place of business. Recent Possession Whether possession of stolen property is “recent” is a question of fact to be determined in light of all the circumstances. See Sutherlin, 682 S.W.2d at 549; Buchanan v. State, 780 S.W.2d 467, 470 (Tex. App.—Dallas 1989, pet. ref’d). Here, the airboat was stolen on November 30th and located at appellant’s place of business on December 16th. Courts have characterized much longer periods between the offense and the defendant’s possession as recent for purposes of the unexplained- possession inference when judged according to the particular circumstances. See, e.g., Hardage v. State, 552 S.W.2d 837, 840 (Tex. Crim. App. 1977) (holding possession of six of eight items taken in burglary seven months earlier under circumstances is sufficiently “recent”); Crain v. State, 529 S.W.2d 774, 775 (Tex. Crim. App. 1975) (holding that car recovered thirty days after theft was recently stolen). Here, the jury could have rationally characterized appellant’s possession of the airboat, which was stolen approximately two weeks before, as recent. “Unexplained” Possession If, as here, the defendant offers an explanation for his possession of the stolen property, the record must demonstrate the account is false or unreasonable before the evidence will be deemed sufficient to support a conviction. Adams v. State, 552 S.W.2d 812, 815 (Tex. Crim. App. 1977); Taylor v. State, 921 S.W.2d 740, 744 (Tex. App.—El Paso 1996, no pet.); see James, 48 S.W.3d at 485. Whether an explanation is true or reasonable is a question of fact, and the factfinder is not required to accept the defendant’s explanation. Prodan v. State, 574 S.W.2d 100, 103 (Tex. Crim. App .1978); Adams, 552 S.W.2d at 815; James, 48 S.W.3d at 486-87. Direct evidence refuting a defendant’s “innocent explanation” is not required when the State presents sufficient evidence that would support the jury’s rejection of a defendant’s explanation as false or unreasonable, including the jury’s ability to simply reject the defendant’s explanation as incredible. Reyes v. State, 422 S.W.3d 18, 25 (Tex. App.—Waco 2013, pet. ref’d). The falsity or unreasonableness of an explanation may be shown by circumstantial evidence. Adams, 552 S.W.2d at 815. After police located the airboat at appellant’s place of business, appellant approached them and told officers that, several weeks prior, he had been in a bar with friends when a man named “Don” approached him and asked him whether he was interested in buying an airboat engine. After going with a friend to see the airboat and negotiating over the price a bit, appellant claimed that he told “Don” to take the airboat to appellant’s place of business and leave it there, which is where police found the airboat two weeks after it had been stolen. Appellant claimed that “Don” left the airboat there and never returned to further negotiate the price or to deliver a title. However, when questioned by police, appellant told them that he did not know “Don’s” complete name, he did not have a telephone number for him, and he did not know of any way to get in touch with him. Appellant acknowledged that he had made no efforts to locate the boat’s owner by calling the Texas Parks and Wildlife Department or the police. Once appellant realized that the airboat might have been a “bad deal,” he testified that he intended to call the police, but never did so. While talking to police, appellant initially told them he would provide a written statement, but, at the conclusion of their discussion, he declined to do so. He told the detective that he would be in touch on the following Monday to provide a statement, but he never reached out to police again, and the telephone number he gave the detective was not correct. Within two days of discovering that the airboat had been stolen, appellant left the State without speaking with police or giving a written statement, despite his stated intention to do so. A jury could find from these inconsistent statements and actions that appellant exhibited a “consciousness of guilt.” “It is consequently a well[-]accepted principle that any conduct on the part of a person accused of a crime subsequent to its commission, which indicates a ‘consciousness of guilt,’ may be received as a circumstance tending to prove that he committed the act with which he is charged.” Torres v. State, 794 S.W.2d 596, 598 (Tex. App.—Austin 1990, no pet.); see also Richmond v. State, No. 13-10-00349- CR, 2012 WL 3265088, at *6 (Tex. App.—Corpus Christi Aug., 12, 2012, pet. ref’d) (mem. op., not designated for publication) (noting that defendant’s failure to keep appointment with investigator was circumstance tending to prove guilt). Appellant testified at trial about his negotiations with “Don,” and how the airboat came to be at his workplace, but he provided no witnesses to corroborate his story. And, one of appellant’s defense witnesses who testified that appellant was a “straight shooter” was impeached with evidence that appellant had a prior felony theft conviction.[4] We conclude there was evidence of appellant’s personal, recent, and unexplained possession of the property in question. See Sutherlin, 682 S.W.2d at 549. From the evidence presented at trial, the jury could have also concluded that appellant’s assertion that he lawfully acquired the property from a man named “Don” was either false or unreasonable. See Adams, 552 S.W.2d at 815. Thus, the jury had sufficient evidence from which it could infer appellant’s possession of recently stolen property as a circumstance of guilt. See Chavez, 843 S.W.2d at 588; Hardesty, 656 S.W.2d at 77. When considered together with appellant’s actions after police discovered the stolen airboat at his workplace—his refusal to sign a statement after planning to meet with police to do so, his giving of an incorrect telephone number, his leaving town, and his lack of corroborating witnesses—appellant’s unexplained possession of the airboat constituted legally sufficient evidence of theft. Having reviewed all the evidence under the appropriate standard of review, we therefore conclude that, after giving deference to the jury’s determination of the credibility of the witnesses, the evidence is legally sufficient to support appellant’s conviction for theft. We overrule appellant’s first issue. VENUE JURY CHARGE In his second issue, appellant contends that “the trial court erred by submitting an article 13.08 charge[5] to the jury [that] was an improper comment on the weight of the evidence and harmful.” Background During deliberations, the jury sent out several notes. The first note asked to see pictures of the airboat and for information about appellant’s 2005 theft conviction. The trial court provided the pictures and instructed the jury, in writing, “You’ve heard the evidence in this case continue to deliberate.” The second note asked, “Was there any information about when the boat was dropped off or transported [sic] to calloways?” The jury was again instructed, “You’ve heard the evidence in this case continue to deliberate.” The jury’s third note provided: In Paragraph 2 on Page 2 that starts out “Now if you find from the evidence beyond a reasonable doubt that on or about November 30th, 2016, in Chambers County, Texas, defendant Anthony Mottin,” Question: Is he (Mottin) being charged for the crime in Chambers County or for possession in Harris County? Over appellant’s objection,[6] the trial court instructed the jury as follows: Where property is stolen in one county and removed to another county, the offender may be prosecuted either in the county in which the property was stolen or in any other county through or into which the property was removed. The trial court, after noting that “the answer comes right out of the Penal Code,” overruled appellant’s objection. Analysis Appellant contends that “it [was] improper to give the article 13.08 jury charge unless there is evidence that the defendant exercised control over the property in question in more than one county.” Appellant contends that “the evidence is clear that the boat was taken from Chambers County, but there is no evidence that [appellant] was responsible for taking the boat.” Appellant’s argument rests on the same assumption as that in his first issue, i.e., that the evidence might be sufficient to show theft by receiving [in Harris County], but not to show that appellant committed the theft [in Chambers County]. Appellant further argues that, because article 13.08 was not applicable, its inclusion was an improper comment on the weight of the evidence because it “suggested that [appellant] could be convicted not only for the ‘crime in Chambers County’ but also ‘for possession in Harris.’” We agree that, under case law cited by appellant, when a defendant is charged with theft by receiving stolen property [found in section 31.03(b)(2)of the Penal Code], “venue attaches at the time and place the offender takes control of the property.” Jones v State, 979 S.W.2d 652, 657 (Tex. Crim. App. 1998). However, as we discussed in his first issue, appellant was not charged with unlawful appropriation by receiving under section 31.03(b)(2); he was charged with unlawful appropriation “without the owner’s effective consent” under section 31.03(b)(1). And, we have also already held that, because of appellant’s unexplained possession of the stolen airboat and his actions after the airboat was discovered at his place of business, the evidence was legally sufficient as charged under section 31.03(b)(1). Thus, despite appellant’s protests to the contrary, there was evidence that appellant stole the boat in Chambers County, and article 13.08 was applicable in this case.[7] We overrule appellant’s second issue. CONCLUSION We affirm the trial court’s judgment. Sherry Radack Chief Justice Panel consists of Chief Justice Radack and Justices Hightower and Adams. Publish. TEX. R. APP. P. 47.2(b).
