DEANNA LYNN GARCIA,FROM A COUNTY COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-00924-CR
 
DEANNA LYNN GARCIA,FROM A COUNTY COURT
 
        APPELLANT,
 
 
v.
 
 
THE STATE OF TEXAS,
 
        APPELLEE.OF DALLAS COUNTY, TEXAS
 
 
BEFORE JUSTICES HOWELL, THOMAS AND OVARD
OPINION BY JUSTICE HOWELL
AUGUST 30, 1989
 
        After a bench trial, appellant was convicted of theft of property valued at $20 or more but less than $200. The trial court imposed a sentence of 180 days' confinement, probated for six months. In four points of error, appellant argues that the evidence was insufficient to support the conviction. We overrule these points and affirm the trial court's judgment.
        In reviewing the sufficiency of the evidence, 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 Jackson v. Virginia, 443 U.S. 307, 319 (1979); Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 865 (1985). The essential elements of theft of property are: (1) unlawful appropriation of property, (2) with intent to deprive the owner of the property. Beardsley v. State, 738 S.W.2d 681, 683 (Tex. Crim. App. 1987); TEX. PENAL CODE ANN. § 31.03(a) (Vernon 1989). "Appropriate" is defined as acquiring or otherwise exercising control over property. TEX. PENAL CODE ANN. § 31.01(5)(B) (Vernon 1989).
        Kelly Medlan, the complainant, was a pharmacy technician at a Tom Thumb Page store. She identified appellant as the person who picked up some prescriptions for Rick Garcia on February 19, 1988. After giving the prescriptions to appellant, the complainant called Nancy Warner of the store's security department because the pharmacy had records of previous occasions when prescriptions for Rick Garcia had not been paid for at the store's checkout stands. The complainant described appellant to Warner, and Warner began watching appellant.
        The complainant personally gave the prescriptions for Cephalexin and Tylenol 3 to appellant. The Cephalexin was in capsule form, and the Tylenol 3 was in tablet form. The complainant valued Cephalexin at about one dollar per pill, or about forty dollars for the prescription of forty pills. She valued the Tylenol 3 prescription at about six dollars. The complainant testified that she did not give appellant permission to take the prescriptions without paying for them. She also stated that she had a greater right to possession and custody of the items than appellant.
        Warner worked part-time in security at the Tom Thumb store. She testified that she was paged by the pharmacy department and that she began observing appellant. She saw appellant put the prescriptions in the child seat of a grocery cart. She later saw appellant remove something from the cart and place it in her right front raincoat pocket. Warner then walked up right behind appellant and saw a large amber-colored bottle, similar to the prescription bottles sold by the store, in appellant's pocket. She watched appellant go through the checkout. Appellant paid for some items, but not for others. Warner detained appellant before she reached the store's exit, telling appellant that she was a police officer and wanted to talk to her. Appellant responded, "This is the first time I've ever done it."
        Eddie Ray Phillips was the drug manager of the Tom Thumb store when appellant, whom he identified, was apprehended. He was at times in charge of the whole store. He stated that he was aware of the items stolen by appellant, and he testified about their value. He valued the Cephalexin at $39.95, the Tylenol 3 at $6.99, and two beef steaks at $6.49.
        Appellant contends in her first point of error that the evidence was insufficient to support her conviction because the State offered no evidence that appellant exercised control over any of the items specified in the information charging her with theft. The information alleged that appellant "exercise[d] control over . . . one capsule drug, one bottle tylenol, [and] two beef steaks."
        The complainant described the Cephalexin as a prescription drug in capsule form. She stated that she personally delivered the Cephalexin and the Tylenol 3 to appellant. She also testified that she did not give appellant permission to take the prescriptions without paying for them. Warner saw appellant remove something from her grocery cart and place it in her pocket. Warner then observed a bottle similar to prescription bottles sold by the store in appellant's pocket. She then watched as appellant failed to pay for some items at the checkout stand. She detained appellant just before she reached a store exit. Phillips testified that he was aware of the items that were stolen, and he then valued the Cephalexin, the Tylenol 3, and the beef steaks that were found in appellant's possession.
        The evidence, when viewed in the light most favorable to the State, is more than sufficient to support appellant's conviction. Based on the testimony discussed above, a rational trier of fact could have found beyond a reasonable doubt that appellant exercised control over the items alleged in the information. Appellant's statement upon apprehension was also probative on this issue. Although no one witness specifically stated that appellant unlawfully exercised control over the property, that is the obvious and reasonable import of all the testimony. The trier of fact has the power to weigh the evidence and draw reasonable inferences from basic facts to ultimate facts. Jackson v. Virginia, 443 U.S. at 319; Van Guilder v. State, 709 S.W.2d 178, 179 (Tex. Crim. App. 1985), cert. denied, 476 U.S. 1169 (1986). Assuming for argument's sake that the evidence was insufficient to show unlawful appropriation of the beef steaks without the complainant's consent, the evidence was nevertheless sufficient to support appellant's conviction. The State is not required to prove an unnecessary allegation that does not describe an essential element. Upchurch v. State, 703 S.W.2d 638, 640 (Tex. Crim. App. 1985). We therefore overrule appellant's first point of error.
        Appellant argues in her second point that the evidence was insufficient to support her conviction because the State failed to prove that she exercised control over property with unlawful intent. Appellant contends that there was no evidence that the prescriptions remained in her possession and that there was no evidence that she failed to pay for them. We disagree.
        Warner observed appellant pay for some items, but not for others. Phillips stated that he was aware of the items stolen by appellant. He testified about three items, the Cephalexin, the Tylenol 3, and the beef steaks. Moreover, appellant's unsolicited statement upon her detention is again probative on this issue. Specific intent to commit theft may be inferred from the surrounding circumstances. Hudson v. State, 675 S.W.2d 320, 322 (Tex. App.--Dallas 1984, pet. ref'd). The trier of fact has the responsibility to weigh the evidence and to draw reasonable inferences. Jackson v. Virginia, 443 U.S. at 319; Van Guilder, 709 S.W.2d at 179. We hold that the evidence of appellant's unlawful intent was sufficient. We overrule appellant's second point.
        By her third point of error, appellant contends that the evidence was insufficient to support her conviction because the value of the property appropriated was not established. Appellant asserts that, because no evidence was adduced as to which prescription bottle was placed in her pocket, no basis exists for determining the value of that particular prescription bottle.
        Appellant's argument is without merit. She ignores much of the evidence against her, basing her argument on select pieces of evidence. Testimony showed that appellant appropriated the Cephalexin, the Tylenol 3, and two beef steaks. As we have detailed, the State produced evidence of the value of each item. We overrule appellant's third point of error.
        Appellant asserts in her final point that the evidence was insufficient to show that the property stolen was worth more than twenty dollars. Her argument is based on appellant's contention that the information charged her with theft of only one capsule of Cephalexin, valued at about one dollar. Appellant therefore maintains that the total value of the property alleged to have been stolen was less than twenty dollars.
        A conviction for theft cannot be based upon the theft of property not alleged to have been stolen. See Wilson v. State, 536 S.W.2d 375, 377 (Tex. Crim. App. 1976). The information, however, charged that appellant "exercise[d] control over property, . . . to-wit: one capsule drug, one bottle tylenol, [and] two beef steaks." Appellant asserts that "one capsule drug" means "one capsule." The State argues that it means "one drug in capsule form." Although the phrase may be subject to more than one interpretation, we conclude that the State's interpretation is both reasonable and logical. We agree with the State that the information charged theft of a drug in capsule form without specifying the quantity of the drug. Appellant might have been able to argue to the trial court that the information failed to provide adequate notice, but any such error was waived because it was not raised by a motion to quash. See Ex parte Kirby, 626 S.W.2d 533, 534 (Tex. Crim. App. 1981); TEX. CODE CRIM. PROC. ANN. art. 1.14(b) (Vernon Supp. 1989). We overrule appellant's fourth point of error.
        We affirm the trial court's judgment.
                                                  
                                                  CHARLES BEN HOWELL
                                                  JUSTICE
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90
880924F.U05
 
 
File Date[01-02-89]
File Name[880924F]