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Court of Appeals of Texas, Dallas.


No. 05-09-00730-CR

Decided: October 28, 2010

Before Chief Justice Wright and Justices Francis and Fillmore


Opinion By Chief Justice Wright

A jury convicted appellant of attempted theft, and the trial court assessed punishment at ninety days' confinement in the county jail, probated for fifteen months.   In two points of error, appellant contends the evidence is legally and factually insufficient to support the verdict.   We affirm.


Micah Simpson testified he was walking his dog around 5:00 a.m. on December 29, 2008, when he heard “metal banging on metal” sounds.   He was in the parking lot of an apartment complex near a fenced area that stored construction equipment at the complex.   Simpson walked closer to the fenced area and saw a man with bolt cutters in his hands “messing with the lock on the fence.”   A large van with a ladder rack on top was parked next to the fence with its engine running and its headlights on.   Simpson stood about twenty yards away from the fenced area.   The van's headlights shined in Simpson's direction.   The man with the bolt cutters looked in Simpson's direction, then he turned toward the van and said, “[W]hat the f* * * do you want me to do?   I can't get the thing open.”   Simpson moved further away from the fenced area and went to a nearby walking trail.   Immediately, the van drove out of the complex.   Simpson assumed the man with the bolt cutters got into the van because he was no longer there.   Simpson walked in the direction the van had gone.   When he walked outside the complex gates, he saw the van parked across the street with its headlights off.   Simpson continued walking his dog down the street.   After Simpson passed by the parked van, its lights came back on, and it sped across the street and went back into the complex.   Simpson ran back to the apartment where he was staying and called the police.   Simpson testified he could not identify the man with the bolt cutters because it was dark and the van's headlights were shining in his face.   However, he could see that the person was “a man who wore a baseball cap, and he was not white-skinned.”

Richardson police officer Rajib Bhattacharjee was dispatched to the complex on a possible theft-in-progress call.   Bhattacharjee testified the dispatcher said there were two “Hispanic” male suspects at the scene, and a civilian witness said one was wearing a baseball cap.   Bhattacharjee arrived at the complex at about 5:23 a.m. He turned off his headlights so he could approach the suspects without being seen.   Bhattacharjee saw a van parked next to a chain-link fence surrounding a marked-off construction area.   Bhattacharjee did not recall if the van's engine and headlights were on or if there were keys in the ignition.   As he approached the van, Bhattacharjee saw only appellant inside.   Appellant moved from the front passenger seat to the driver's seat.   Appellant was not wearing a baseball cap.   Bhattacharjee handcuffed appellant for officer safety and placed him in the back seat of the patrol car.   Appellant said he was at the complex with a man named Jose Gato. Appellant had a Texas identification card but no driver's license.   Other officers who had arrived at the scene searched the area for Gato, but never found him.

Natividad Orellano testified he was a sub-contractor for THS Construction, and he supervised a roofing project at the complex in December 2008.   The fenced area contained “composition shingles and felt paper for underlay.”   According to Orellano, there were eighty-five pallets of shingles inside the fenced area, and each pallet cost about $1100.   Orellano testified he and his workers never started working before 8:00 a.m., and there would be no reason for anyone to be at the construction area at 5:00 a.m. Orellano kept the construction area locked at all times except when a worker obtained the key from him to get materials.   The workers always locked the gate and returned the key to Orellano after getting the materials because Orellano was the only person with a key to the padlocks.   Orellano testified he did not know appellant and appellant did not work for him.

Lonnette Kendoll, a fingerprint expert for the Richardson Police Department, testified that when she arrived at the scene, Bhattacharjee pointed out a van that was parked near a fenced construction area.   There were three gates with padlocks in the fence that surrounded the construction materials.   Kendoll testified she saw evidence that a tool had been used to attempt to break the chain links.   There were pry marks on the links at all three gates, and one of the padlocks had pry marks on it as well.   Kendoll photographed the van, padlocks, gates, and a pair of bolt cutters she retrieved from the front passenger floorboard inside the van.   Kendoll fingerprinted the van, padlocks, gates, and the bolt cutters, but was unable to develop any usable prints.   Photographs of the van, padlocks, gates, bolt cutters, and the fenced construction area were admitted into evidence and shown to the jury.

Officer Michael Cross testified he was the third officer to arrive at the complex.   The police dispatcher had said there was one suspect wearing a baseball cap, and a second suspect was described as a “Hispanic male.”   When Cross arrived at the scene, the van's engine was running.   Other officers had retrieved bolt cutters from the front passenger floorboard.   Cross searched the area for the second suspect, but he did not find anyone.   After the search was over, Cross impounded the van.   The vehicle had only the driver's seat and the front passenger seat;  the back seats had been removed and the van was empty except for “some loose trash.”   Cross testified that because there were no back seats in the van, a person could fit from one-half to a full pallet of the shingles inside the back of the van.   When Cross inventoried the van, he did not find a baseball cap.

Detective Brent Gibson testified he interviewed appellant the same day he was arrested.   Gibson determined appellant did not live at the complex where the offense had occurred, and he did not even live in the area of the complex.   Also, appellant was not the registered owner of the van.   Appellant did not present any evidence during the guilt-innocence phase of the trial.

Applicable Law

In two points of error, appellant challenges the legal and factual sufficiency of the evidence.   The Texas Court of Criminal Appeals has overruled Clewis v. State, holding that the Jackson v. Virginia standard is the only standard a reviewing court is to 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, No. PD-0210-09, 2010 WL 3894613, at *1 (Tex.Crim.App. Oct. 6, 2010) (plurality op.).   Therefore, we will address appellant's points of error under the Jackson v. Virginia standard.

In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.   Jackson v. Virginia, 443 U.S. 307, 319 (1979);  Brooks, 2010 WL 3894613, at *1. We are required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony.   See Jackson, 443 U.S. at 326 (“a court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution”).

The State was required to prove beyond a reasonable doubt that appellant (1) with specific intent to commit an offense, (2) did an act that amounted to more than mere preparation that tended, but failed, to effect the commission of the offense, (3) by attempting to appropriate roofing shingles, (4) without the owner's effective consent.   See Tex. Penal Code Ann. §§ 15.01(a), 31.03(a) (West 2003 & Supp.2010).   The jury was instructed it could find appellant guilty as a principal or as a party to attempted theft of property valued at $1500 or more but less than $20,000;  guilty as a principal or as a party to attempted theft of property valued at $500 or more but less than $1500;  or not guilty.

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 aids the other person in committing the offense.   See Tex. Penal Code Ann. § 7.02(a)(2) (West 2003).   In determining whether the accused is guilty as a party, the fact-finder may consider events occurring before, during, or after commission of the offense.   See Michel v. State, 834 S.W.2d 64, 67 (Tex.App.-Dallas 1992, no pet.).


Appellant contends the evidence is insufficient because no one saw him use the bolt cutters, and there is no evidence more than one person attempted the theft.   Appellant also contends the jury based its verdict on statements made by the prosecutor during closing arguments regarding testimony that was not presented to the jury during trial.   The State responds that the evidence is sufficient to prove appellant's connection to the offense either as a principal or as a party.

There was evidence presented that Simpson reported to police an attempted theft at a construction site, and he believed two individuals were involved.   Investigating officers found appellant near the fenced construction area in the early morning hours when the site was closed.   Appellant, who had been sitting in the front passenger seat of a van parked next to the fenced site, moved to the driver's seat when Bhattacharjee approached the van.   Officers found bolt cutters on the passenger-side floorboard where appellant had been sitting, and there were pry marks on the gates, padlocks, and chain-link fence that surrounded the construction site.   Appellant was the only individual found at the scene, but he told Bhattacharjee he was there with Jose Gato, and that Gato had the bolt cutters when officers arrived.

Appellant complains that the prosecutor repeated in closing argument some of Bhattacharjee's testimony that was given outside of the jury's presence.   Appellant asserts the jury “considered these arguments and based their verdict on evidence that was never introduced.”   Appellant did not object to the prosecutor's argument at trial and brings no related issue on appeal.   Moreover, in the charge, the trial court instructed the jury that the statements of the lawyers were not evidence.   We presume the jury followed the trial court's instruction.  Thrift v. State, 176 S.W.3d 221, 224 (Tex.Crim.App.2005);  Williams v. State, 937 S.W.2d 479, 490 (Tex.Crim.App.1996).   To rebut the presumption, appellant must point to evidence in the record that the jury failed to follow the instruction.   Thrift, 176 S.W.3d at 224.   Appellant has pointed to nothing in the record indicating the jury based its verdict on the statements by the prosecutor.

Viewing the evidence under the proper standard, we conclude a rational jury could find beyond a reasonable doubt that appellant attempted to appropriate another's property without the owner's effective consent.   See Michel, 834 S.W.2d at 67.   Thus, the evidence is sufficient to support the jury's verdict.   See Brooks, 2010 WL 3894613, at *1. We overrule appellant's points of error.

We affirm the trial court's judgment.


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