BRIAN DUANE SANDERS, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED Opinion filed October 6, 1989.
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-89-00032-CR
............................
BRIAN DUANE SANDERS, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the 199th District Court
Collin County, Texas
Trial Court Cause No. F87-070-R
.................................................................
O P I N I O N
Before Justices Stewart, Lagarde and Burnett
Opinion By Justice Stewart
                 Brian Duane Sanders appeals his jury conviction for theft. The trial court assessed punishment at five years' imprisonment, probated for two years, and a $1,000 fine. In his sole point of error, appellant contends that the evidence is insufficient to support his conviction. We disagree. Accordingly, we affirm.        
        Appellant contends that the evidence is insufficient to show that he committed the offense of theft. Specifically, he argues that the record fails to establish his guilt as a party to the offense. In determining the sufficiency of the evidence, this Court's inquiry is limited to determining whether, examining the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Girard v. State, 631 S.W.2d 162 (Tex. Crim. App. 1982).
        The State called two witnesses to the stand and introduced video tapes of the actual theft. The record shows that appellant, his common law wife Shavon Rena Baldwin, and a juvenile, D. L. A., entered the Sears store at Collin Creek Mall in Plano, Collin County, Texas. Security guard James Ray Edwards testified that he recognized them "from a prior incident," and therefore decided to video tape their movements while he simultaneously watched them on electronic monitors. Edwards was only able to view appellant and the others by camera and neither heard any conversation nor observed any behavior not shown on the video tapes.
        Edwards testified that while appellant and D. L. A. walked around the jewelry department appellant glanced up, looked around, and pointed to the Seiko dress watches which D. L. A. stole shortly thereafter. D.L.A. then "circulated" about the store and appellant joined Baldwin, who was at the far end of the rectangular display counter with Heather Fraley, the only sales clerk on duty at the time. Fraley testified that appellant stood next to Baldwin and that he neither did nor said anything. Fraley also stated that she was computing the sale price on certain items at Baldwin's request. Edwards also testified that in order to assist Baldwin, Fraley had to position herself facing away from D. L. A. It was during this time that D. L. A. approached the other end of the jewelry counter, opened the access door, and took seven Seiko watches from the merchandise counter. After D. L. A. had taken the watches, he rejoined appellant and Baldwin at the far end of the counter. D. L. A. whispered to Baldwin, she smiled, and the threesome immediately left the store together.
        Appellant argues that all of the evidence in the case is on the video tape made by Edwards. The State replies that although the video tape shows that Fraley was engaged in some task when appellant, D. L. A., and Baldwin abruptly left the scene, Fraley's observations and her testimony are necessary to determine the surrounding circumstances, namely, that all three left the store abruptly without receiving the prices that Baldwin had requested. The jury is the exclusive judge of the facts and of the weight to be given to testimony, Tex. Code Crim. Proc. Ann. arts. 36.13 and 38.04 (Vernon 1981), and may choose to believe or to disbelieve any testimony or evidence. Wilkins v. State, 635 S.W.2d 444, 448 (Ct. App.--San Antonio 1982, no pet.). Therefore, it was for the jury to decide what weight to give to witness testimony in determining the facts.
        The indictment alleged that appellant "did then and there intentionally and knowingly appropriate by acquiring or otherwise exercising control over property other than real property, namely: seven watches of the value of at least seven hundred and fifty dollars ($750.00), but less than twenty thousand dollars ($20,000.00), without the effective consent of Heather Fraley, the owner of the property, and with intent to deprive the said owner of said property." To obtain a conviction, the State had to prove appellant was a party to the offense, since appellant himself did not steal the property. Section 7.02 of the Texas Penal Code provides in pertinent part:
        (a) A person is criminally responsible for an offense committed by the conduct of another if:
            
        (2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.
         The State argues that it is indisputable that appellant "encouraged" or "directed" D. L. A. immediately prior to the theft when appellant pointed to the watches, that he "aided" D. L. A. when he and Baldwin occupied the only sales clerk on duty at the time of the theft, and, therefore, the only issue is whether a rational jury could find beyond a reasonable doubt that appellant had the requisite intent. Appellant contends that the record shows no conduct or participation by him in the act of theft nor any conduct that would bring him within the language of section 7.02(a)(2). Appellant argues that his mere presence at the scene of the offense must be considered with other facts in evidence that would suffice to show that he was a participant. Alexander v. State, 607 S.W.2d 551 (Tex. Crim. App. 1980); Ortiz v. State, 577 S.W.2d 246 (Tex. Crim. App. 1973). In making its determination, the court may look at events before, during, and after the commission of the offense, and reliance may be placed on actions which show an understanding and common design to do a certain act. Alexander, 607 S.W.2d at 553. The evidence adduced at trial showed that before the commission of the offense, appellant pointed out to D. L. A. the same watches which were stolen by D. L. A. shortly thereafter. During the commission of the offense, the only sales clerk on duty in the jewelry department was at the far end of the sales counter showing merchandise to appellant and Baldwin, which positioned the clerk with her back to D. L. A. while he committed the offense. After commission of the crime, D. L. A. rejoined appellant and Baldwin and whispered to her, at which time the three individuals immediately left the store. Viewed in the light most favorable to the verdict, any rational trier of fact could have found each of the elements of the offense beyond a reasonable doubt, and specifically that appellant acted with intent to promote or assist the commission of the offense and that he encouraged, directed, aided, or attempted to aid D. L. A. to commit the offense within the meaning of section 7.02(a)(2) of the Texas Penal Code.
        The judgment is affirmed.
                                                          
        
 
                                                  __________________________                                         ANNETTE STEWART
                                                          JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
88-00032F.U05
 
                                                
 
 
 
 
File Date[10-07-89]
File Name[890032F]