Jesse Dwayne Black v. The State of Texas--Appeal from County Court of Lamar County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-07-00010-CR
______________________________
JESSE DWAYNE BLACK, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court
Lamar County, Texas
Trial Court No. 51695
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION

Jesse Dwayne Black appeals his conviction for theft of less than fifty dollars after having been previously convicted of theft. Black pleaded true to the prior conviction for theft. A jury found Black guilty and assessed punishment at 180 days' imprisonment and a $2,000.00 fine. The trial court sentenced Black consistent with the jury's verdict. Black's sole issue on appeal is that the evidence is legally and factually insufficient.

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). This calls upon the court to view the relevant evidence in the 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). In our review, 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, we view all the evidence in a neutral light and determine whether the evidence supporting the verdict is so weak that the jury's verdict is clearly wrong or manifestly unjust or against the great weight and preponderance of the evidence. Roberts v. State, 220 S.W.3d 521 (Tex. Crim. App. 2007); see Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006); see also Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006); Johnson, 23 S.W.3d at 7; Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). Though, in reviewing factual sufficiency, we may second-guess the jury to a limited degree, our review should still be deferential, and we must reach "a high level of skepticism about the jury's verdict" before we can reverse for factual insufficiency. Roberts, 220 S.W.3d 521.

Michelle Martinez, a cashier at a Dollar General store, testified that a man came into the store and asked if they had any charcoal or lighter fluid. Martinez told the individual there was some charcoal in the back of the store and some "out front on a blue rotainer (phonetic)." Martinez testified that the man went to the back part of the store but returned without any lighter fluid. The man then went "outside to the rotainer, grabbed a bag of charcoal, [and] took off running" toward a vehicle. When Martinez yelled, "[h]e's stealing a bag of charcoal, or he's running out with charcoal," Veronica Gilliam, a manager of the Dollar General store, pursued the man into the parking lot. Gilliam testified she yelled at the man and waved her hands trying to get the man to stop. Martinez testified the man drove off in a green or dark blue truck. Gilliam testified the man drove off in a green truck. Martinez testified she got a "good look" at the man who stole the charcoal. At trial, Martinez identified Black as the man who stole the charcoal. At trial, Gilliam identified Black as the individual who drove off.

Gilliam got the truck's license plate number as the man drove off. Approximately twenty to thirty minutes after the theft, Officer Brandon Denison observed a turquoise pickup truck with the same license plate number as the number observed by Gilliam. Officer Denison detained Black, who was driving the truck. Martinez and Gilliam later identified Black as the shoplifter when the police officers returned to the store with Black. In this identification, Black was sitting in the back of the patrol car. Martinez and Gilliam observed Black through the store window. Officer Thomas Brandenburgh, an officer with the Paris, Texas, Police Department, testified this identification occurred from a distance of approximately twenty-five feet.

Officer Brandenburgh testified that Black denied being at the Dollar General store and claimed he was next door to it at the Quick Pantry. Black consented to a search of his vehicle, which did not reveal any charcoal. Gilliam testified she did not take an inventory to verify that a bag of charcoal was missing. The police never recovered the charcoal.

Black contends the State's evidence failed to prove he was the person who committed the crime in question. Black argues that Gilliam testified she did not see the theft occur and Martinez expressed some doubt about her identification. Gilliam testified she did not see the man steal the charcoal, but merely observed him driving away. On cross-examination, Martinez testified that, when she identified Black in the back of the patrol car, she did not get a close look at Black. On re-direct, Martinez was asked:

Q. [State] . . . is there any doubt in your mind that the man sitting over there by Mr. Massar, the one you identified as Jesse Black was the same person that stole the charcoal from Dollar General that day?

 

A. [Martinez] I believe so, yes.

 

At best, Martinez's answer is ambiguous and susceptible to multiple interpretations. Black argues Martinez's answer could be interpreted as entertaining some doubt that Black was the person who committed the offense in question. Martinez, though, testified on direct examination that she had no doubt Black was the shoplifter.

Viewed in a light most favorable to the verdict, the evidence is legally sufficient. Black was identified by Martinez as the shoplifter and by Gilliam as the individual who drove off. The license plate of Black's truck matched the number observed by Gilliam at the scene. A rational juror could have found the essential elements of the crime beyond a reasonable doubt. Viewed in a neutral light, we are unable to reach the high level of skepticism required to second-guess the jury. The evidence that Black was the person who committed the theft in question is not so weak that the jury's verdict is clearly wrong or manifestly unjust. The evidence is factually sufficient.

For the reasons stated, we affirm the judgment.

 

Bailey C. Moseley

Justice

 

Date Submitted: July 3, 2007

Date Decided: July 5, 2007

 

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