Rollie Ray Skinner, Jr. v. The State of Texas--Appeal from 217th District Court of Angelina County

NO. 12-07-00194-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ROLLIE RAY SKINNER, JR., APPEAL FROM THE 217TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE ANGELINA COUNTY, TEXAS

MEMORANDUM OPINION

Rollie Ray Skinner, Jr. appeals his conviction for theft. After a jury found him guilty, the trial court sentenced him to eight years of imprisonment. In his sole issue, he contends the evidence is insufficient to prove venue in Angelina County. We affirm.

Background

On October 17, 2006, Laura Davis, Appellant s common law wife, rented a Budget truck because she planned to move out of state the following day. That Budget truck was caught on camera at CMC Recycling in Lufkin, Angelina County, at 3:54 a.m. on October 18. One or more persons entered the building at 4:27 a.m. They loaded two large bins and a smaller bin full of copper tubing onto the truck and left the premises at 4:58 a.m.

Davis testified that Appellant had taken the truck the night of October 17 and returned to her home in Angelina County during the early morning hours of December 18. She was not sure exactly what time he woke her up but, at Appellant s direction, she, Appellant, and Appellant s friend, Dwight Gipson, left in the truck at about 5:00 a.m. They drove from her home directly to Houston.

At about 9:00 a.m., they were at the CMC facility in Houston trying to sell the copper. Appellant was identified as the one offering to sell the material. The employees there declined to purchase the material because it appeared suspicious.

Appellant, Gipson, and Davis then drove the truck to Bodner Metal and Iron Corporation, also in Houston, and again attempted to sell the material. Coincidentally, while there, the manager of CMC in Lufkin called the owner of Bodner Metal to tell him about the theft so he could be watching for the material. The trio was arrested before they could leave Bodner Metal.

Appellant told police officers that he was given the material while working at a demolition job in Baton Rouge, Louisiana. Davis testified that she had lied when she told police that she had taken the truck to Baton Rouge to pick up Appellant and the material. She testified that Appellant told her to say that, they did not go to Baton Rouge, and she did not know where Appellant got the material. The record shows that the truck had traveled only 198 miles since Davis rented it on October 17. Therefore, it could not have been driven from Lufkin to Baton Rouge, back to Lufkin, and then to Houston.

The Angelina County jury found Appellant guilty of theft of the property taken from CMC Recycling but found him not guilty of burglary of a building as charged in count two of the indictment.

Venue

In his sole issue, Appellant asserts the trial court erred in denying his motion for directed verdict based on the State s failure to prove venue in Angelina County. He argues that none of the evidence places him at CMC Recycling at the time of the theft and the State failed to prove he committed the crime in Angelina County. Instead, he argues, the necessary elements of theft converge in Harris County and the State proved theft by receiving in Harris County.

Applicable Law

A person commits theft if he unlawfully appropriates property with intent to deprive the owner of the property. Tex. Penal Code Ann. 31.03(a) (Vernon Supp. 2007). In addition to the elements of theft, the State is required to prove that the prosecution is being brought in the proper venue pursuant to Chapter 13 of the Texas Code of Criminal Procedure. See Ex parte Watson, 601 S.W.2d 350, 352 (Tex. Crim. App. 1980). The general rule provides that if venue is not specifically stated, the proper county for the prosecution of offenses is that in which the offense was committed. Tex. Code Crim. Proc. Ann. art. 13.18 (Vernon 2005). The theft specific venue statute provides, Where property is stolen in one county and removed by the offender to another county, the offender may be prosecuted either in the county where he took the property or in any other county through or into which he may have removed the same. Tex. Code Crim. Proc. Ann. art. 13.08(a) (Vernon Supp. 2007). Article 13.08 applies to offenders who steal the property of another person and remove that property from one county to another. Stewart v. State, 44 S.W.3d 582, 587 (Tex. Crim. App. 2001). Article 13.08 attaches venue at the point where the accused takes control of the property with the requisite intent. Id.

Venue in a criminal case need only be proven by a preponderance of the evidence. Tex. Code Crim. Proc. Ann. art. 13.17 (Vernon 2005); Murphy v. State, 112 S.W.3d 592, 604 (Tex. Crim. App. 2003). Proof of venue may be established by direct or circumstantial evidence and the jury may draw reasonable inferences from the evidence. Black v. State, 645 S.W.2d 789, 790 (Tex. Crim. App. 1983); Edwards v. State, 97 S.W.3d 279, 285 (Tex. App. Houston [14th Dist.] 2003, pet. ref d). The evidence is sufficient if the jury may reasonably conclude that the offense was committed in the county alleged. Rippee v. State, 384 S.W.2d 717, 718 (Tex. Crim. App. 1964).

Discussion

The copper was originally taken from CMC Recycling in Angelina County. The truck left CMC at 4:58 and arrived at Davis s home, which is also in Angelina County, shortly thereafter. Based on the record, the jury could reasonably infer that the copper was in the truck at the time Appellant and Gipson picked up Davis. Even though the jury determined the evidence was insufficient to find Appellant guilty of burglary of the CMC building, it could reasonably conclude, based on the evidence, that Appellant exercised control over the stolen material by the time he got to Davis s house. See Hite v. State, 650 S.W.2d 778, 783-84 (Tex. Crim. App. 1983). Therefore, Appellant could properly be tried in Angelina County. See Tex. Code Crim. Proc. Ann. art. 13.08; Stewart, 44 S.W.3d at 586-87. The trial court did not err in denying Appellant s motion for directed verdict. We overrule Appellant s sole issue.

Disposition

Having overruled Appellant s sole issue, we affirm the trial court s judgment.

BRIAN HOYLE

Justice

Opinion delivered April 8, 2008.

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

(DO NOT PUBLISH)