Betty Sue Tate v. The State of Texas--Appeal from 420th District Court of Nacogdoches County

NO. 12-04-00349-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

BETTY SUE TATE, APPEAL FROM THE 420TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE NACOGDOCHES COUNTY, TEXAS

MEMORANDUM OPINION

Betty Sue Tate appeals her conviction for theft. In two issues, Appellant asserts that the evidence is not legally or factually sufficient to support her conviction. We affirm.

Background

Appellant was charged by indictment with theft.[1] The indictment alleged that, on or about July 13, 2004, in Nacogdoches County, Texas, Appellant unlawfully appropriated, by acquiring or otherwise exercising control over, property, to-wit: beer, of the value less than $1,500.00, from Gopal Shrestha, the owner thereof, with intent to deprive the owner of the property. The indictment included a jurisdictional paragraph alleging that Appellant had twice been convicted of theft.[2] Appellant pleaded not guilty.

At trial, Sachin Shrestha testified that, on July 13, 2004, he was working alone at a convenience store owned by his uncle, Gopal Shrestha, in Nacogdoches, Nacogdoches County, Texas. At approximately 4:30 p.m., Sachin was behind the counter, stocking cigarettes. He saw Appellant enter the store and walk straight to the counter. According to Sachin, Appellant had a piece of paper in her hand, stated that she was going to read it to him, and began to read. Then, Appellant told Sachin that he had to buy her a beer because she read a poem for him. Sachin informed Appellant that he did not have any money and would not buy her a beer. At that point, Appellant turned around, went to the beer counter, grabbed a beer, put the beer inside her vest, and walked out the store. According to Sachin, Appellant took two alcoholic beverages and one 24-ounce can of Busch Light beer, the value of which was approximately five dollars. Sachin testified that Appellant did not pay for the beer, that he did not give her permission to walk out of the store with the beer, that he did not tell her to take the beer, and that he did not pay for the beer. Sachin stated that all of the beer in the store was owned by his uncle.

Once Appellant left the store with the beer, Sachin testified that he ran outside, asked her to stop, and told her that he would buy beer for her if she came back inside. At that time, Appellant was approximately thirty to forty feet outside the building and down the road. Appellant complied with Sachin s request. When Appellant returned to the store, she put the beer on the counter and remained there while Sachin waited on customers. Meanwhile, Sachin testified that he pushed the alarm button and called 911.

Officer Eric Newell, a field training officer with the Nacogdoches Police Department, testified that, on July 13, 2004 at approximately 4:30 p.m., he was dispatched to a convenience store in Nacogdoches after two 911 hang-up calls and an open-emergency line call. He and two other police officers found both the store clerk and Appellant present. The clerk claimed that Appellant shoplifted from the store. As evidence, Newell testified that the clerk placed two alcoholic beverages and a beer on the counter. After the clerk recounted what occurred, Newell arrested Appellant for shoplifting. Newell admitted that he did not see any offense take place in his presence nor did he locate any contraband on Appellant.

Appellant testified that she was in the convenience store with Sachin on July 13, 2004, but stated that Sachin offered her alcohol in exchange for sex.

At the conclusion of the trial, the jury found Appellant guilty of theft and assessed punishment at two years of confinement in a state jail facility.[3] This appeal followed.

Evidentiary Sufficiency

In her first and second issues on appeal, Appellant argues that the evidence is legally and factually insufficient to support her conviction. More specifically, Appellant contends that there is no independent evidence linking her with the allegedly stolen property. Further, Appellant argues that the store clerk had motivation to lie because he propositioned her for sex in exchange for the beer. Thus, Appellant contends the store clerk s testimony should be independently corroborated in the same manner as an accomplice witness s testimony. The State disagrees.

Standard of Review

Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App. San Antonio 1999, pet. ref d) (citing Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-88, 61 L. Ed. 2d 560 (1979)). The standard of review is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; LaCour v. State, 8 S.W.3d 670, 671 (Tex. Crim. App. 2000). The evidence is viewed in the light most favorable to the verdict. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; LaCour, 8 S.W.3d at 671. The conviction will be sustained unless it is found to be irrational or unsupported by more than a mere modicum of the evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). The jury is the sole judge of the credibility of witnesses and of the weight to be given their testimony. Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994). Any reconciliation of conflicts and contradictions in the evidence is entirely within the jury s domain. Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986). If a reviewing court finds the evidence legally insufficient to support a conviction, the result is an acquittal. Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S. Ct. 2211, 2217-18, 72 L. Ed. 2d 652 (1982).

When reviewing the factual sufficiency of the evidence, we review all of the evidence, but not in the light most favorable to the prosecution. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). We must determine whether a neutral review of the evidence, both for and against the finding, demonstrates that a rational jury could find guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also factually insufficient when contrary evidence is so strong that the beyond-a-reasonable-doubt burden of proof could not have been met. Id. at 484-85. Our evaluation should not substantially intrude upon the jury s role as the sole judge of the weight and credibility of witness testimony. Wesbrook v. State, 29 S.W.3d 103, 112 (Tex. Crim. App. 2000).

Elements of the Offense

A person commits the offense of theft if she unlawfully appropriates property with intent to deprive the owner of property. Tex. Pen. Code Ann. 31.03(a) (Vernon 2003). Appropriation of property is unlawful if it is without the owner s effective consent. Tex. Pen. Code Ann. 31.03(b)(1) (Vernon 2003). Appropriate means to acquire or otherwise exercise control over property other than real property. Tex. Pen. Code Ann. 31.01(4)(B) (Vernon 2003). Deprive means to withhold property from the owner permanently or for so extended a period of time that a major portion of the value or enjoyment of the property is lost to the owner. Tex. Pen. Code Ann. 31.01(2)(A) (Vernon 2003).

Analysis

At trial, Sachin testified that Appellant took two alcoholic beverages and a can of beer from the convenience store owned by his uncle. Sachin stated that Appellant did not pay for the property nor did she have his permission to take the property from the store. From this testimony, the jury could have found that Appellant did not have the owner s effective consent to acquire or otherwise exercise control over the property and, thus, unlawfully appropriated the beverages and beer. See Tex. Pen. Code Ann. 31.01(4)(B), 31.03(a), (b)(1). According to Sachin, the value of the beverages and beer was approximately five dollars, admittedly less than $1,500.00. See Tex. Pen. Code Ann. 31.03(a), (e)(4)(D). Further, Appellant was approximately thirty to forty feet outside the building before being stopped by Sachin. From this evidence, the jury could have found that Appellant intended to deprive the owner of his property. See Tex. Pen. Code Ann. 31.01(2)(A), 31.03(a). Therefore, viewing the evidence in the light most favorable to the jury s verdict, we conclude that a rational trier of fact could have found the elements of theft beyond a reasonable doubt.

Having determined that the evidence is legally sufficient to support the verdict, we address factual sufficiency and consider all the evidence adduced at trial in a neutral light. See Zuniga, 144 S.W.3d at 484. In conducting our review, the evidence in support of the conviction includes Sachin s testimony that Appellant took two alcoholic beverages and a beer from the store without paying for them and without his permission. Further, Sachin stated that Appellant walked approximately thirty to forty feet outside the building before returning at his request. Contrary evidence is Appellant s testimony that Sachin offered her beer in exchange for sex. The jury may choose to believe some testimony and disbelieve other testimony. See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Here, the jury determined the credibility of the witnesses and resolved the evidentiary inconsistencies in the State s favor, which is its prerogative as fact finder.

Although Appellant argues that Sachin s testimony should be corroborated similar to an accomplice witness s testimony, we disagree. An accomplice witness is someone who has participated with another before, during, or after the commission of a crime. Villarreal v. State, 576 S.W.2d 51, 56 (Tex. Crim. App. 1978). One is not an accomplice witness who cannot be prosecuted for the offense with which the accused is charged. Id. The store clerk, Sachin, did not participate in the shoplifting offense with Appellant nor could he be prosecuted for such offense. Therefore, Sachin was not an accomplice witness. See id. As such, there is no necessity for corroborating Sachin s testimony.

Consequently, in making our determination of the evidence, both for and against the verdict, we cannot say that the evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Nor can we conclude that the contrary evidence is so strong that the beyond-a-reasonable-doubt burden of proof could not have been met. Therefore, we conclude that the evidence was factually sufficient for the jury to find Appellant guilty of theft as charged in the indictment. Accordingly, Appellant s first and second issues are overruled.

Disposition

The judgment of the trial court is affirmed.

SAM GRIFFITH

Justice

Opinion delivered November 16, 2005.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(DO NOT PUBLISH)

[1] Tex. Pen. Code Ann. 31.03(a) (Vernon 2003).

[2] An offense under section 31.03(a) is a state jail felony if the value of the property stolen is less than $1,500.00 and the defendant has been previously convicted two or more times of any grade of theft. Tex. Pen. Code Ann. 31.03(e)(4)(D) (Vernon 2003).

[3] Appellant stipulated that she was the person listed in two prior theft convictions alleged in the jurisdictional paragraph. Because she had previously been convicted twice of theft, Appellant was punished for a state jail felony. Tex. Pen. Code Ann. 31.03(e)(4)(D) (Vernon 2003). Punishment for a state jail felony is confinement in a state jail for any term of not more than two years or less than 180 days and, in addition, a fine not to exceed $10,000. Tex. Pen. Code Ann. 12.35 (Vernon 2003).