Floyd Freeman v. The State of Texas--Appeal from 85th District Court of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-92-148-CR

FLOYD FREEMAN,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 85th District Court

Brazos County, Texas

Trial Court # 12,578-85

O P I N I O N

A jury found Floyd Freeman guilty of theft between $200 and $10,000 and assessed punishment at five years. In his single point of error, Freeman contends that the evidence was insufficient to sustain the conviction. We affirm.

On October 24, 1978, at about 3:00 a.m., a load of shingles was delivered to the home of Helen Walker at 1701 West 17th Street in Bryan, Texas. Mrs. Walker testified that James Densey delivered and unloaded the shingles at her house that morning and was helped by three or four black men.

Edwin Portier, Jr., the construction superintendent at the Woodstone Commerce Center in College Station, Texas, testified that some "Bird Architect" shingles, lumber, plywood, and rough cedar were missing from the construction site. That same day Detective Gary Norton of the College Station Police Department took Portier to Mrs. Walker's house. Portier identified the shingles in Mrs. Walker's garage as those stolen from the construction site.

Edwin Myles testified that he, his brother, James Densey, and Freeman rode in a truck pulling a damaged trailer full of shingles to Mrs. Walker's house. Myles, Densey, and Freeman unloaded the shingles from the trailer into the garage. The men left the house and went to a vacant lot to unhook the damaged trailer.

Officer Cuthbertson stated that about 3:20 a.m. he approached three black males, who included Myles and Freeman, at the vacant lot next to the truck and flatbed trailer that still contained six sheets of plywood. Cuthbertson asked Freeman where he lived and what he was doing in the lot. Freeman said that he had just brought in some construction materials from a job site in Houston and was delivering them to Bryan under the direction of Mr. Howard of Butler-Howard Construction Company. He went on to give Cuthbertson a false home address in Houston.

J.C. Howard testified that Freeman worked for him on October 24, 1978. He further stated that he did not authorize Freeman to bring six sheets of plywood from Houston. Howard also said that Freeman lived in Navasota.

Officer Nolan Metz testified that around 6:00 a.m. on October 24, 1978, he followed scrape marks made by a damaged trailer from FM 60 east to the Woodstone Shopping Center. At Woodstone the officer saw several sheets of plywood scattered at the exit of the shopping center that appeared to have fallen off a vehicle. Cuthbertson also saw scrape marks on West 17th Street in front of Mrs. Walker's house that morning and scrape marks left by their trailer from the vacant lot to Mumford Road where the trailer was abandoned.

Freeman contends that there was not sufficient evidence to sustain his conviction. A jury may infer that a defendant committed theft if that defendant is found in possession of property recently stolen. Hardesty v. State, 656 S.W.2d 73, 76 (Tex. Crim. App. 1983). The defendant must give no reasonable explanation showing honest possession of the property for this inference of guilt to be drawn. Id. at 77. However, if the defendant does offer a reasonable explanation when first confronted, the State can rebut the reasonableness of his explanation by offering evidence that his explanation was false. Callahan v. State, 502 S.W.2d 3, 6 (Tex. Crim. App. 1973). Whether a defendant's explanation for possession of property is reasonable is a matter to be determined by the fact finder, and the jury is not required to accept the explanation offered. Musgrave v. State, 608 S.W.2d 184, 188 (Tex. Crim. App. 1980).

In the present case, Freeman was in possession of the stolen shingles the morning of October 24, 1978. Freeman helped unload the shingles at Mrs. Walker's house. After the shingles were unloaded, Freeman was seen by Officer Cuthbertson in possession of six sheets of plywood. Furthermore, Freeman's statements of what he was doing and where he lived were successfully rebutted by the State.

In reviewing the sufficiency of the evidence on appeal, we must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." See Dickey v. State, 693 S.W.2d 386, 387 (Tex. Crim. App. 1984) (quoting Jackson v. Virginia, 443 U.S. 307, 319, n.12, 99 S. Ct. 2781, 2789, n.12, 61 L. Ed. 560 (1979). We find that any rational trier of fact could have found the essential elements beyond a reasonable doubt. We overrule the point.

We affirm.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed January 13, 1993

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