SHAVON RENA BALDWIN,FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-01432-CR
SHAVON RENA BALDWIN,FROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
        APPELLEE.OF COLLIN COUNTY, TEXAS
 
 
 
BEFORE JUSTICES WHITHAM, LAGARDE AND WHITTINGTON
OPINION BY JUSTICE LAGARDE
JULY 20, 1989
        Shavon Rena Baldwin appeals her conviction by a jury for theft of property over the amount of $750 but less than $20,000. The trial court assessed punishment at ten years' confinement, suspended imposition of sentence and placed Baldwin on probation for five years, and assessed a fine of $l,000. In her sole point of error, Baldwin asserts that the circumstantial evidence is insufficient to support the jury's verdict. Assuming, without deciding, that the evidence in this case is circumstantial, we hold that the evidence is still sufficient to support the jury's verdict.
        Baldwin, her common law husband, Brian Duane Sanders, and a male juvenile companion, Darren Lamont Akers, were arrested on February 14, 1987 for theft of watches from a Sears' store. The store's security guard testified that he recognized this particular trio; therefore, he focused the cameras on them. The tape was introduced into evidence at trial and has been reviewed by this Court as part of the record on appeal. The videotape captures most of the trio's conduct during the commission of the offense and provides frequent close-ups of Baldwin's facial expressions.
        The videotape begins with Baldwin's companions carefully looking at watches displayed in the jewelry showcase. Baldwin's juvenile companion, Akers, walks the length of the counter and whispers something to Baldwin. Baldwin furtively glances about the area and then gets the sales clerk's attention. Baldwin directs the clerk's attention to some earrings, while Akers returns to the area where the watches are displayed. From her vantage point, Baldwin is able to see Akers, but the clerk's back is to the watch display area, and Akers is outside her view. While the clerk's attention is on Baldwin, Akers opens the access door to the display counter, twice removes watches, and then closes the door, apparently without being seen by the clerk. Akers puts the watches in large pockets on his jacket, immediately returns to Baldwin's side, and whispers something to her. Baldwin smiles, and the trio quickly leaves--so quickly that Baldwin forgets her purse and must return for it.        The sales clerk testified that she saw Baldwin and Akers whispering, but she was unable to hear what was said. She further testified that the manner in which Baldwin lost interest in the earrings was quite abrupt.
        The security guard testified that, when the trio entered the jewelry area, Baldwin's companions circled the area making furtive glances while Baldwin watched them and also watched the entire area. The security guard also testified that Baldwin occupied the only sales clerk at the jewelry counter. A reasonable deduction from the evidence, as reflected on the tape, is that Baldwin enabled Akers to take the watches, without detection, by occupying the clerk's attention at such a location at the jewelry counter where Baldwin, but not the clerk, had Akers within her view. Finally, the security guard testified that the trio had been shopping at a leisurely pace until after the theft was completed. At that point, Akers whispered to Baldwin, and all three persons abruptly left the store. Store security guards followed them and detained them outside the store where the watches were removed from Akers's pockets. The police were then called and Baldwin and her companions were subsquently arrested for theft.
         At the conclusion of the State's evidence, the defendant Baldwin rested and closed without presenting any evidence. In her sole point of error, Baldwin asserts that there was insufficient evidence for the jury to find her quilty as a party to the commission of the offense of theft. She stipulates that the theft was committed by Akers but contends, based on Ortiz v. State, 577 S.W.2d 246, 248 (Tex. Crim. App. 1977), that the State must prove intent to commit the offense and some "other facts" in order to find her quilty as a party. She argues that these "other facts" must constitute some type of affirmative action in bringing about the commission of the offense. Further, she asserts that this case is one of circumstantial evidence; therefore, the proper standard precludes a verdict of guilty if there is an alternative reasonable hypothesis consistent with the circumstances and facts proved. Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988). Baldwin contends that an alternative reasonable hypothesis is that she was innocently shopping while a companion committed the theft. She argues there was no evidence that her conduct was any different from any other shopper and that no evidence was introduced of the content of what Akers whispered to her.
        In deciding a sufficiency of the evidence question on appeal, the familiar standard is 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 Castillo v. State, 739 S.W.2d 280, 287 (Tex. Crim. App. 1987), cert. denied, 108 S. Ct. 2889 (1988), citing Jackson v. Virginia, 443 U.S. 307, 319 (1979). This standard for review is the same in both direct and circumstantial evidence cases. Castillo, 739 S.W.2d at 287. In a circumstantial evidence case, if there is a reasonable hypothesis other than the guilt of the accused, then it cannot be said that guilt has been shown beyond a reasonable doubt. Martin, 753 S.W.2d at 387. However, the rules of circumstantial evidence do not require proof to a moral certainty that the circumstances presented actually exclude every hypothesis other than the guilt of the accused; it must only exclude every reasonable hypothesis raised by the evidence that would tend to exculpate the accused, and it is enough that the conclusion of guilt is warranted by the combined and cumulative force of all the incriminating evidence. See Brandley v. State, 691 S.W.2d 699, 703 (Tex. Crim. App. 1985).
        The trial court properly charged the jury on the law of the parties; consequently, the State only had to prove that Baldwin, by speech or conduct, acted with intent to promote or assist in the commission of the offense by soliciting, encouraging, directing, aiding, or attempting to aid the other person in the commission of the offense. See TEX. PENAL CODE ANN. § 7.02(a)(2) (Vernon 1974). Inasmuch as Baldwin concedes that the offense of theft was committed by one of her companions, we only address the sufficiency of the evidence in light of the application of the law of parties.
        The evidence in this case shows that: (1) Baldwin, her common law husband, and Akers entered the store together; (2) Akers whispered something to Baldwin; (3) immediately thereafter, Baldwin occupied the sales clerk's attention while Akers committed the theft; (4) after completing the theft, Akers again whispered to Baldwin and they very quickly left the store together. Based on this evidence, and reasonable deductions therefrom, we hold that a rational trier of fact could have found, beyond a reasonable doubt, that Baldwin, with intent to assist in the commission of the offense, aided Akers in the commission of theft. In doing so, we reject Baldwin's argument that a rational trier of fact could have found, under the evidence adduced, another reasonable hypothesis other than guilt.
        Baldwin's sole point of error is overruled and the judgment of the trial court is affirmed.
 
 
 
SUE LAGARDE
                                                          JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
88-01432.F
 
 
 
 
File Date[01-02-89]
File Name[881432F]