Andrew Garraway v. State
03-14-00595-CR
Tex. App.Mar 25, 2015Background
- Appellant Andrew Garraway was indicted on multiple counts of burglary of a habitation alleging entry with intent to commit theft; two counts were later abandoned. A jury acquitted on burglary counts but convicted Garraway of the lesser-included offense of theft (value $1,500–<$20,000). Sentence: 2 years TDCJ and $1,500 fine.
- Garraway testified and admitted to all theft elements except entry into the habitations.
- State introduced voluminous pawn-shop transaction records (Leads Online), summaries, surveillance videos, testimony from detectives, pawn employees, victims, and a codefendant identifying items sold and payouts totaling about $2,875.
- Trial court admitted business records under Tex. R. Evid. 803(6) and summaries under Rule 1006; defense objected on hearsay/confrontation grounds.
- On appeal the State defends: (1) theft is a valid lesser-included offense of burglary-by-committing-theft; (2) jury charge and unanimity were proper; (3) business records and summaries were properly admitted; (4) testimony by codefendant and detective was not hearsay/testimonial; and (5) the evidence was legally sufficient.
Issues
| Issue | State's Argument | Garraway's Argument | Held |
|---|---|---|---|
| Whether theft is a lesser-included offense of burglary-by-committing-theft | Theft is proved by same or fewer elements than burglary-by-committing-theft; burglary requires an extra element (entry) so theft is a lesser-included offense when theft is alleged and proven | Theft is not a lesser-included offense (argues distinction or pleading insufficiency) | Court treats theft as a valid lesser-included offense where the indictment alleges completed theft and value evidence exists |
| Whether jury charge required unanimous finding on which theory of "unlawfully appropriates" | Indictment need only allege unlawful appropriation; evidentiary theories (initial taking vs. receipt of stolen property) are not elements that require separate unanimity | Charge failed to require jury to unanimously adopt one theory of unlawful appropriation | Court rejects claim; unanimity on underlying evidentiary theory not required when elements of theft are proven |
| Admissibility of pawn-shop business records and summaries | Records are regular business records (803(6)); summaries admissible under Rule 1006; officers personally verified records | Records/summaries are hearsay/untrustworthy and their admission was an abuse of discretion | Court finds admission within trial court's discretion and harmless if erroneous because other testimony and videos corroborated entries |
| Whether codefendant/detective testimony violated hearsay/Confrontation Clause | Codefendant testified from personal knowledge that no consent was given; detective testified to his own acts of returning property — not hearsay/testimonial statements | Testimony admitted statements of out‑of‑court declarants (hearsay) or testimonial evidence without confrontation | Court holds testimony was non‑hearsay (personal conduct/knowledge) and not a Crawford violation |
| Sufficiency of the evidence for theft (value $1,500–<$20,000) | Combined witness testimony, pawn records, payouts and surveillance established identity, lack of consent, and aggregate value supporting the charged theft grade | Evidence insufficient to prove value/identity/lack of consent beyond a reasonable doubt | Court concludes evidence was legally sufficient when viewed in the light most favorable to the verdict |
Key Cases Cited
- Langs v. State, 183 S.W.3d 680 (Tex. Crim. App. 2006) (burglary-by-commission requires proof of the underlying felony; Blockburger analysis explained)
- Ex parte Sewell, 606 S.W.2d 924 (Tex. Crim. App. 1980) (discussion of indictment pleading practices as to theft allegations in burglary prosecutions)
- Kellar v. State, 108 S.W.3d 311 (Tex. Crim. App. 2003) (continuing‑course theory: element is aggregate conduct, not each individual act)
- Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (legal‑sufficiency standard and consideration of circumstantial evidence)
- McClain v. State, 687 S.W.2d 350 (Tex. Crim. App. 1985) (aggregation of theft amounts and proof of continuing scheme)
- Crawford v. Washington, 541 U.S. 36 (U.S. 2004) (Confrontation Clause governs admission of testimonial hearsay)