Clark v. State

ROBERT L. CLARK, SR., Appellant v. THE STATE OF TEXAS, Appellee

No. 12-20-00193-CR

Court of Appeals of Texas, Twelfth District, Tyler

August 18, 2021

DO NOT PUBLISH

APPEAL FROM THE COUNTY COURT AT LAW SMITH COUNTY (Tr.Ct.No 001-80574-14), TEXAS

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

MEMORANDUM OPINION

GREG NEELEY JUSTICE

Robert L. Clark, Sr. appeals his conviction for theft of property with a value of between fifty and five hundred dollars. In three issues, he argues that the evidence is insufficient to support the trial court's judgment and that the trial court's assessment of costs for attorney's fees and a "time payment" fee are improper. We modify and affirm as modified.

Background

Appellant was charged by indictment with theft of property with a value of between fifty and five hundred dollars and pleaded "not guilty." The matter proceeded to a jury trial. A jury found Appellant "guilty" as charged and ultimately, assessed his punishment at confinement for ninety days. The trial court sentenced Appellant accordingly, and this appeal followed.^[1]

Evidentiary Sufficiency

In his first issue, Appellant argues that the evidence is legally insufficient to support his conviction for theft. Specifically, Appellant contends that there is no evidence that he acted as a party to the commission of the offense by his wife.

Standard of Review and Applicable Law

The Jackson v. Virginia^[2] legal sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the state is required to prove beyond a reasonable doubt. See Brooks v State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. See Jackson, 443 U.S. at 315-16, 99 S.Ct. at 2786-87; see also Escobedo v State, 6 S.W.3d 1, 6 (Tex. App.-San Antonio 1999, pet ref'd). The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 320, 99 S.Ct. at 2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined in the light most favorable to the verdict. See Jackson, 443 U.S. at 320, 99 S.Ct. at 2789; Johnson, 871 S.W.2d at 186. A jury is free to believe all or any part of a witness's testimony or disbelieve all or any part of that testimony. See Lee v. State, 176 S.W.3d 452, 458 (Tex. App.- Houston [1st Dist.] 2004), aff'd, 206 S.W.3d 620 (Tex. Crim. App. 2006). A successful legal sufficiency challenge will result in rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S.Ct. 2211, 2217-18, 72 L.Ed.2d 652 (1982).

Circumstantial evidence is as probative as direct evidence in establishing guilt, and circumstantial evidence alone can be sufficient to establish guilt. Rodriguez v. State, 521 S.W.3d 822, 827 (Tex. App.-Houston [1st Dist.] 2017, no pet.) (citing Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011)). Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. See Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Juries are permitted to draw multiple reasonable inferences as long as each inference is supported by the evidence presented at trial. Id. at 15. Juries are not permitted to come to conclusions based on mere speculation or factually unsupported inferences or presumptions. Id. An inference is a conclusion reached by considering other facts and deducing a logical consequence from them, while speculation is mere theorizing or guessing about the possible meaning of facts and evidence presented. Id. at 16.

The sufficiency of the evidence is measured against the offense as defined by a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge would include one that "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant is tried." Id.

Discussion

In order to prove that Appellant was "guilty" as charged as a party to theft, the State was required to demonstrate that Appellant unlawfully appropriated the property with the intent to deprive the owner of the property. See Tex. Penal Code Ann. § 31.03(a) (West 2019). An "owner" is a person who "has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor." Id. § 1.07(a)(35) (West 2021). "Possession" is defined as "actual care, custody, control, or management." Id. § 1.07(a)(39).

A person is criminally responsible as a party to an offense if the offense is committed by his conduct or by the conduct of another for which he is criminally responsible. Id. § 7.01(a) (West 2021). A person is criminally responsible for an offense committed by the conduct of another if, 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. Id. § 7.02(a)(2) (West 2021). We may look to events occurring before, during, and after the commission of the offense when determining whether a person participated as a party, and we may rely on actions of the defendant that show an understanding and common design to do the prohibited act. Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994) (op. on reh'g); Jackson v. State, 487 S.W.3d 648, 655 (Tex. App.-Texarkana 2016, pet. ref'd). Circumstantial evidence may be sufficient to show that a person is a party to an offense. Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987); Davison v. State, 602 S.W.3d 625, 633 (Tex. App.- Texarkana 2020, pet. ref'd).

Discussion

In the instant case, Jessica Gardner testified that, as of the date in question, she had been a Wal-Mart asset protection/loss prevention employee for three years. Gardner described her job duties to include walking around the store looking for suspicious activity, such as "people['s] stealing stuff by putting it in their purses and walking out the door with it, or [going] in the self-checkout and not ringing up everything that they have placed in the bags." Gardner identified Appellant as the person she detained along with his wife on January 29, 2014, for "stealing merchandise" at the Wal-Mart located on Highway 64 in Tyler, Smith County, Texas. According to Gardner, she first noticed the couple in the apparel department because Appellant's wife selected items while he "just kept looking around like he was watching out for her" and they both were behaving nervously. Gardner continued to observe the couple as they made their way through the store and placed twelve items in their cart before heading to the "self-checkout" aisle. Gardner stated that she watched Appellant scan "the three food items that they did pay for," and then, he and his wife changed positions so that Appellant was handing his wife the remaining "clothing items and shoes" from their cart, which she did not even attempt to scan before placing the items in bags.^[3] Gardner further stated that the couple did not have permission to take these items without scanning or paying for them. Gardner testified that after the couple paid for the items they did scan, they left the self-checkout area with all the items, both those purchased as well as those potentially purloined, stood in front of the in-store McDonald's restaurant for a moment, and then began to exit the store. According to Gardner, she stopped the couple in the vestibule as they were exiting the store and asked them to give her the merchandise for which they did not pay. In response, Appellant claimed to have "accidently" failed to scan the items or to have forgotten to do so. Gardner stated that the items Appellant did scan cost him less than $10. Thereafter, Gardner contacted the police, and Appellant and his wife both were arrested for theft.

On cross examination, Gardner testified that there was no video recording of the incident because the camera for that self-checkout station was inoperable at that time. She also conceded that the stolen items were primarily women's items of clothing and that Appellant's wife was positioned at the scanner when she placed the items in the bags without scanning them. She further testified that Appellant offered to pay for the items that he claimed accidently to have failed to scan. On redirect examination the State elicited testimony from Gardner that Appellant appeared to be acting as a "lookout" while the two were shopping in the apparel department. Moreover, Gardner testified that Appellant, while standing next to his wife at the scanner, "actually [was] bypassing the scanner" as he handed the items to his wife to be bagged. Lastly, she reiterated that Appellant paid less than ten dollars for a bag containing almost one hundred fifty dollars worth of apparel.

Based on our review of the record, there was ample evidence to permit a jury to find beyond a reasonable doubt that Appellant committed theft as a party to the offense. Such evidence includes testimony that (1) Appellant was observed as appearing to act as a "lookout" while his wife selected items, (2) Appellant switched places with his wife while handing her items in such a way as to bypass the scanner, which...