LARRY DWAYNE MORRISON v. THE STATE OF TEXAS (2010)

OPINION

Opinion By Justice Murphy

Larry Dwayne Morrison waived a jury and pleaded not guilty to theft of property.   After finding appellant guilty, the trial court assessed punishment at twelve months' confinement in a state jail facility.   In two issues, appellant contends the evidence is legally and factually insufficient to support the conviction.   We affirm.

Applicable Law

In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.   Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App.2005).   We review all the evidence in the light most favorable to the verdict, and assume the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict.   See Rollerson v. State, 227 S.W.3d 718, 724 (Tex.Crim.App.2007).

In a factual sufficiency review, we consider all of the evidence in a neutral light and determine whether (1) the evidence supporting the conviction is too weak to support the fact-finder's verdict or, (2) considering conflicting evidence, the fact-finder's verdict is against the great weight and preponderance of the evidence.  Laster v. State, 275 S.W.3d 512, 518 (Tex.Crim.App.2009).   We may only find the evidence factually insufficient when necessary to prevent manifest injustice.  Id.

To obtain a conviction, the State was required to prove that appellant unlawfully appropriated less than ten head of cattle, valued at less than $20,000 and stolen during a single transaction, with the intent to deprive the owner, Gabino Barrera, of the property.   See Tex. Penal Code Ann. §§ 31.03(a), (e)(4)(A) (Vernon Supp.2009).  “Appropriation” is unlawful if it is without the owner's effective consent.   Id. § 31.03(b)(1).

Evidence Presented

In 1988, appellant and his brothers, Brian and Terry Morrison, inherited livestock, bank accounts, and eighty-eight acres of land in Farmersville.   Brian was the executor of the uncle's estate, and he testified at trial that he and his brothers sold the livestock and distributed the proceeds among themselves.   In 2001, Terry leased the land to Gabino Barrera for grazing Barrera's cattle.   Brian, as executor of the uncle's estate, gave Terry permission to lease the land to Barrera, and Terry used the lease amounts to pay the annual property taxes.   Brian testified that he, Terry, and appellant knew the cattle on their land in June 2008 belonged to Barrera.

Terry's testimony confirmed that he and his brothers sold all of the inherited cattle by 1992 and that the proceeds were evenly distributed.   He testified the lease with Barrera was an oral agreement and that he gave Barrera a receipt each year for the rent.   Terry identified a receipt at trial as the one he gave Barrera for the period February 11, 2008 to February 11, 2009.

Terry also testified that appellant began living in a shed located on a one-acre fenced-off area of the land in the spring of 2004.   None of the brothers had previously lived on the land.   The house on the one-acre area had burned down, and the work shed, without electricity or water, was the only remaining structure.   After moving to the shed, appellant went with Terry on at least one occasion to collect Barrera's lease payment and was aware the cattle grazing on the Morrison land belonged to Barrera.   According to Terry, appellant tried to lease a pasture to someone else in the spring of 2007, but Terry intervened because of the existing lease with Barrera.

Barrera owned twelve adjacent acres at the south end of the Morrison land.   He testified that the Morrison land was vacant at the time he leased it from Terry in 2001 and began grazing his cattle.   About four years later, appellant began living in a shed at the north end of the Morrison land.   Appellant brought no cattle or other livestock to the land.

On the evening of June 28, 2008, Barrera noticed that seven of his twenty-three cattle were missing, including one bull, one steer, one bull calf, one cow, and three heifers.   Barrera testified that each day when the sun went down, his cattle made their way from the north end of the land to Barrera's twelve acres at the south to be fed with the other livestock Barrera owned, including goats, chickens, and sheep.   After investigating the missing cattle, Barrera notified the police the next day.   Collin County Sheriff's Deputy Jo Wright responded to the call.   After meeting with Barrera and following him onto the Morrison land, Wright talked with appellant.   Barrera overheard appellant tell Wright he wanted to “beat up” Barrera because Barrera had his cattle on appellant's land.   To prove his ownership, Barrera gave Wright a lease receipt, photographs of the missing cattle, and sales receipts for five of the cattle.   Barrera testified he photographed each cow at the time of purchase, but did not brand or tag them.   He could not find the receipt for two of the cows because the purchase was over five years ago.   Barrera testified appellant knew he leased the land for grazing his cattle because appellant instructed Barrera in 2006 to give him the rent money.   Barrera told appellant they would need to call Terry;  if Terry agreed, he would give appellant the rent money.

Tony Gonzales, a self-employed farmer, also worked for Emory Livestock Auction hauling cattle for sale.   He received a call from appellant in June 2008.   Appellant wanted him to pick up some cows and gave Gonzales directions.   Gonzales went to the Morrison land on Thursday, June 26, 2008, and loaded seven cows into his trailer.   Appellant watched him the entire time it took to corral and load the cattle.   Appellant initially told Gonzales to “take them all,” but later told him to “take what you can fit on the trailer.”   Appellant “requested to be able to come pick up the check” after the cattle were sold.   Gonzales took the cattle to Emory, where they were sold on Saturday, June 28, 2008.   A few days later, a sheriff's deputy contacted Emory about the cows.

Deputy Jo Wright testified that when he arrived on the Morrison land with Barrera on June 29, 2008, appellant walked up the driveway to meet him.   Appellant told Wright he knew nothing about any missing cattle, and he was not aware of anyone driving into the pasture to load cattle.   Appellant told Wright he had owned some cattle, but his older brother and Barrera had stolen them over the years.   When confronted with Barrera's receipt for leasing the land, appellant claimed the land belonged to appellant, his brother had no rights to the land, and the lease agreement was invalid.   Wright testified he made several calls on his cell phone and learned the cattle had been picked up and delivered to Emory on appellant's authorization.   When Wright told appellant he knew the cattle were delivered to Emory, appellant said, “[Y]es, that's true,” and indicated he had allowed someone to come pick up the cattle.   Wright asked appellant why he had lied initially, and appellant said “that he always had crooked cops coming up there” and that the cattle were the offspring from a larger herd his brother and Barrera had stolen from him over the past eight years.   A video recording of Wright's conversation with appellant made from a patrol car in-dash camera was admitted.   Appellant presented no evidence and did not testify at the trial.

Discussion

Appellant contends the evidence is legally and factually insufficient to sustain his conviction because (1) he believed the cattle that were on his land belonged to him at the time he sold them, (2) he had no intention of depriving anyone of cattle that was on his land, (3) Barrera's receipts for purchase of the cattle were issued years after the purchase, and a physical description of the cattle was added to the receipt by Barrera's wife or someone else, and (4) the cattle were not branded or tagged showing they belonged to Barrera.   The State responds that the evidence is legally and factually sufficient to support appellant's theft conviction.

The evidence presented to the trial court shows that Barrera provided documentation of ownership of the cattle by producing receipts and photographs, which were admitted into evidence.   Both of appellant's brothers testified Barrera's cattle were the only livestock on the land, and that no one except Barrera owned the cattle.   Terry testified appellant knew in 2004 that the cattle on the land belonged to Barrera.   Barrera testified appellant knew in 2006 that the cattle belonged to him because appellant tried to get Barrera to pay him the rent money for leasing the land to graze his cattle.

As the fact-finder in this case, it was the trial judge's role to reconcile any conflicts in the evidence.   See Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App.2003).   The trial judge was free to accept or reject any and all of the evidence presented by either side.   See Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999).   Moreover, the requisite specific intent to commit theft can be inferred from a defendant's conduct, his remarks, and from all surrounding circumstances.   See Robertson v. State, 871 S.W.2d 701, 705 (Tex.Crim.App.1993).   Evidence that appellant initially lied about the theft, also shows a “consciousness of guilt” that supports the trial court's verdict.

Viewing all of the evidence under the proper standards, we conclude it is legally and factually sufficient to support's appellant's conviction.   See Laster, 275 S.W.3d at 518;  Vodochodsky, 158 S.W.3d at 509.   We resolve appellant's two issues against him.

We affirm the trial court's judgment.

MARY MURPHY JUSTICE