Kevin Upshaw v. The State of Texas--Appeal from 282nd District Court of Dallas County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00260-CR

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KEVIN UPSHAW, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 282nd Judicial District Court

Dallas County, Texas

Trial Court No. F04-58242-JS

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

A Dallas County jury found Kevin Upshaw guilty of theft of property valued at less than $1,500.00, having twice been convicted of theft. See Tex. Pen. Code Ann. 31.03(e)(4)(D) (Vernon Supp. 2005). Upshaw pled "true" to the State's enhancement allegations: one felony conviction for forgery and one conviction for aggravated sexual assault of a child. // The jury assessed punishment at eighteen years' imprisonment and a $1,000.00 fine. // Upshaw appeals, contending the State's evidence is legally and factually insufficient to prove the essential elements of theft. We conclude to the contrary and affirm the trial court's judgment.

Factual and Procedural History

At about 5:20 p.m., on November 13, 2004, Upshaw entered a Foley's department store in Northpark Mall in Dallas. Foley's loss prevention investigator, Wilbert Joe Simien, noticed that Upshaw was carrying Wal-Mart bags into and around the store and, because there was no Wal-Mart store in the mall or the nearby vicinity, considered Upshaw suspicious.

Video surveillance footage and Simien's testimony established that Upshaw first went to the fragrance and cosmetics department and appeared to hand to the cashier a couple of gift boxes to put behind the counter for him. Upshaw, who testified in his own defense, explained that he did this so he could gather all the items he wanted to purchase and pay for them at one place. According to Upshaw, he had just been paid and had about $400.00 to spend on Christmas gifts. According to his account of the day, he had purchased the Wal-Mart bags from a dollar store when his bus broke down and it began to rain; he wanted to protect his earlier purchases from the rain.

After leaving the fragrance department, Upshaw wandered around the store, eventually making his way to the electronics department located on the second level. He spoke to a Foley's employee and spent some time studying his surroundings and shelves which housed several DVD players packaged in relatively small boxes. He picked up one of the DVD players and wandered around a while longer before he tucked the box under his left arm. Carrying the DVD player in this manner caused his jacket to be raised somewhat on his left side. He continued to walk around the store for approximately six more minutes, pausing to speak to another Foley's employee, but never going back to the fragrance counter.

At approximately 5:33 p.m., Upshaw left the store, only to meet Simien outside who took the DVD player from Upshaw and escorted Upshaw back into the store to investigate the matter. The jury heard Upshaw's testimony explaining that he saw an advertisement for a DVD player at a better price and that he placed the DVD player on the fragrance counter and left the store and that he did not have the DVD player when he left Foley's. The jury heard testimony from Simien that, in fact, Upshaw did have the DVD player when he left the store.

Upshaw was arrested. Shawanna Mason, supervisor of the inmate property vault at the Dallas County jail, testified that, when Upshaw was booked into jail, he had only $10.10 on his person. The jury also viewed the video surveillance footage of Upshaw's visit to Foley's.

Applicable Law

Theft of Property

A person commits an offense if such person unlawfully appropriates property with intent to deprive the owner of property. See Tex. Pen. Code Ann. 31.03(a) (Vernon Supp. 2005). Because Upshaw contends he did not take the DVD player from the store, we will take his argument as one challenging the sufficiency of the evidence to prove the appropriation element of the offense.

Standards of Review

In our review of the legal sufficiency of the evidence, we employ the standards set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979). We are to view the relevant evidence in a light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). We must evaluate all of the evidence in the record, both direct and circumstantial, whether admissible or inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).

In a factual sufficiency review, the appellate court views all the evidence in a neutral light and determines whether the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt, or if evidence contrary to the verdict is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Threadgill v. State, 146 S.W3d 654, 664 (Tex. Crim. App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 486 (Tex. Crim. App. 2004)).

Deference to Jury's Findings

The jury is the exclusive judge of the facts and is the ultimate judge of the credibility of the witnesses and the weight to be given their testimony. See Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 1981), art. 38.04 (Vernon 1979); Hudson v. State, 128 S.W.3d 367, 383 (Tex. App. Texarkana 2004, no pet.). The jury is entitled to accept or reject all or any part of the testimony by the witnesses for the State or the accused. Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987). Reconciliation of evidentiary conflicts lies within the exclusive province of the fact-finder. See Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982).

Analysis

The Evidence Is Legally Sufficient to Sustain the Jury's Verdict

Viewing the evidence in a light most favorable to the verdict, we point to Simien's testimony and the surveillance footage to conclude that the record provides sufficient evidence such that a rational trier of fact could find the essential elements of the offense beyond a reasonable doubt.

Simien is very clear that Upshaw was carrying the DVD player when Upshaw left the store. Simien testified that he met Upshaw just as Upshaw left the store at 5:33 p.m. and that Upshaw was, indeed, carrying the DVD player under his left arm.

The video surveillance footage confirms such a conclusion. From the view of Upshaw from the front, it is clear that, as late as 5:32:43 p.m., he is carrying the DVD player under his arm. Upshaw makes a turn, and still at 5:32:43 p.m., the camera switches to a rear view and the DVD player is not readily visible. We note, however, that from the rear view, Upshaw's jacket is disheveled in the same manner it had been in the front view as he carried the DVD player under his left arm. Further, the jury could see the time stamp on the video surveillance footage and notice that there is no discernible gap between the front and rear views. From the front view at 5:32:43, it is clear that Upshaw has the DVD player. It is less clear from the rear view, but the jury could have reasonably concluded that, given that less than one second elapsed between the camera frames, Upshaw was still carrying the DVD player as he left the store.

We conclude that a rational trier of fact could have found all essential elements of theft beyond a reasonable doubt.

The Evidence is Factually Sufficient to Sustain the Jury's Verdict

Upshaw presented the meager contrary evidence the record contains. He explained that he placed the DVD player on the fragrance counter and opted to go elsewhere to get a better buy on a DVD player. His testimony is undermined, of course, by that of Simien and by the surveillance video. The jury was able to weigh Upshaw's explanation in light of the other evidence. From the surveillance video, it is highly improbable, if not physically impossible, that Upshaw could have returned to the fragrance counter, placed the DVD player on the counter, and then continued out the store in the available time between frames.

The contextual clues from the surveillance footage cast serious doubt on Upshaw's explanation. In one frame, the jury saw Upshaw from the front, carrying the DVD player and walking slightly ahead of and to the left of a woman in a green sweater. In the next frame, from the rear, we see someone who appears to be the same woman in the same position relative to Upshaw. The jury was free to conclude from this footage that Upshaw did not deviate from the path as he turned left and went out the store. Additionally, we note that the surveillance footage shows that the fragrance counter to which Upshaw referred is not near the exit from which Upshaw left the store.

Mason's testimony also calls into question Upshaw's version of events. Upshaw explained that he had approximately $400.00 at the beginning of his shopping venture and that he planned to buy the DVD player and the two fragrance gift sets all at one place. However, on booking at the Dallas County jail, Upshaw had only $10.10 in his possession. The jury, as the sole judge of credibility and the weight to be given to testimony, was authorized to disbelieve Upshaw's testimony, especially in light of the testimony and surveillance video contrary to Upshaw's account.

We conclude that the evidence supporting the jury's verdict is not too weak to support the finding of guilt beyond a reasonable doubt and that the evidence contrary to the verdict is not strong enough that it would prevent the State from meeting its burden of proof beyond a reasonable doubt.

Conclusion

Having concluded the record provides legally and factually sufficient evidence to sustain the jury's verdict of guilt, we overrule Upshaw's two points of error and affirm the trial court's judgment.

Donald R. Ross

Justice

Date Submitted: May 1, 2006

Date Decided: July 21, 2006

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