Andrew Garraway v. State
03-14-00595-CR
| Tex. App. | Apr 11, 2017Background
- Andrew Garraway was indicted on 20 counts of burglary of a habitation; each count alleged entry with intent to commit, attempt to commit, and commission of theft. Two counts were abandoned at trial.
- Five victims testified about stolen items (credit cards, electronics, instruments, cash); some items were recovered and returned; victims testified they did not know or consent to Garraway.
- Justin Kajileh, Garraway’s accomplice, testified they burglarized unlocked student apartments, sold/took items to pawnshops, and used stolen credit cards; Kajileh implicated Garraway and admitted giving police some recovered property.
- Garraway admitted helping pawn items and using cards he knew were not his, but denied participating in the burglaries; he acknowledged the items were likely stolen and that sales were part of a common scheme.
- Pawnshop records, LeadsOnline data, pawn tickets, security videos, and detective testimony linked Garraway to transactions; jury convicted Garraway of theft (value $1,500–<$20,000) and acquitted on burglary counts.
- Trial court assessed a two-year state-jail sentence but suspended it and placed Garraway on five years’ community supervision; this appeal followed.
Issues
| Issue | Garraway's Argument | State's Argument | Held |
|---|---|---|---|
| Whether theft is a lesser-included offense of burglary as indicted | Theft was not properly charged as lesser-included because indictment didn’t specify every element of theft | Indictment alleged facts (intent to commit/commit theft) from which theft elements can be deduced | Theft is a lesser-included offense of burglary here; charge properly submitted |
| Whether jury unanimity required for each instance in aggregated-theft charge | Jury must unanimously agree on every specific theft instance | Aggregated-theft convictions need only unanimity that threshold amount reached and elements proven for instances jurors find | No unanimity error; unanimity standard for aggregated-theft met per precedent |
| Evidentiary rulings: admission of LeadsOnline data/summaries and witness testimony (hearsay/Confrontation) | LeadsOnline and summaries contained hearsay/testimonial statements and violated Confrontation Clause; witnesses’ testimony about victims’ ID/consent was hearsay | Records were business records (non-testimonial); summaries admissible; witnesses’ testimony was not hearsay or was cumulative and admissible; objections not preserved on some points | Admission was within trial court’s discretion or any error was harmless; Confrontation Clause not violated for business records |
| Sufficiency of the evidence for felony-theft value and victim identification/consent | Evidence only supported misdemeanor-level value and lacked identification/consent proof for many victims | Victim testimony, detective testimony, pawn records, Kajileh’s admission, and Garraway’s own statements supported identity, lack of consent, and value ≥ $1,500 | Evidence legally sufficient to support theft conviction in $1,500–<$20,000 range |
Key Cases Cited
- State v. Meru, 414 S.W.3d 159 (Tex. Crim. App. 2013) (framework for when one offense is a lesser-included offense of another)
- Ex parte Watson, 306 S.W.3d 259 (Tex. Crim. App. 2009) (elements may be deduced from indictment facts)
- Goad v. State, 354 S.W.3d 443 (Tex. Crim. App. 2011) (lesser-included offense analysis applied to burglary)
- Garcia v. State, 571 S.W.2d 896 (Tex. Crim. App. 1978) (discussion that burglary can include commission of theft)
- Kent v. State, 483 S.W.3d 557 (Tex. Crim. App. 2016) (unanimity rule for aggregated-theft prosecutions)
- Geick v. State, 349 S.W.3d 542 (Tex. Crim. App. 2011) (no need for State to choose among statutory alternatives when pleading theft)
- Ex parte Luna, 784 S.W.2d 369 (Tex. Crim. App. 1990) (pleading theft and evidentiary manner-of-acquisition are distinct)
- Tillman v. State, 354 S.W.3d 425 (Tex. Crim. App. 2011) (abuse-of-discretion standard for evidentiary rulings)
- Melendez-Diaz v. Massachusetts, 557 U.S. 305 (U.S. 2009) (Confrontation Clause bars testimonial statements)
- Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (legal-sufficiency standard—view evidence in light most favorable to verdict)
- Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (appellate review of sufficiency of evidence)
- Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) (circumstantial evidence can support conviction)
- Coble v. State, 330 S.W.3d 253 (Tex. Crim. App. 2010) (harmlessness where same evidence admitted elsewhere)