No. 05-03-01260-CR.
Opinion issued May 4, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-01234-TS. Affirmed.
Before Justices JAMES, WRIGHT, and BRIDGES.
Opinion By Justice JAMES.
Willie Fred Wilson appeals his conviction for theft of property under $1500 with two prior theft convictions and two prior felony convictions. The trial court found appellant guilty and the allegations of prior offenses true and sentenced appellant to two years' imprisonment and a $1000 fine. Appellant brings seven issues asserting the evidence is legally and factually insufficient to support his conviction. We affirm the trial court's judgment.
FACTUAL BACKGROUND
On the morning of April 14, 2003, Michael Mayo, the manager of a Minyard's supermarket, arrived at work at 6:00 a.m. Mayo walked through the store and did not see a trash can out of place or garbage on the floor. The store opened at 7:00 a.m. At about 7:30 a.m., Beverly Bryant, an employee of Minyards, was called to the front of the store to assist with checking. Bryant noticed appellant standing near the magazine rack and walking between the magazine rack and the service center. Cigarettes were stored in the service center, and a trash can was kept behind the counter in the service center. The entry to the service center was a swinging door anyone could use. Bryant, concerned there might be a robbery or theft in progress, called Mayo to the front of the store. Another man appeared to be trying to distract Bryant and the other checker's attention. Bryant saw appellant move a trash can from the service center toward the front entry to the store. She saw appellant move the trash can past the check-out stands. When appellant saw he was being watched, he moved the trash can back by the magazine rack. Mayo saw appellant standing near the trash can, which was beyond the check-out area. When appellant saw Mayo approaching, appellant walked away from the trash can. Mayo looked in the trash can and saw it was full of cigarette cartons. Mayo looked in the service center and noticed the trash can was missing and garbage was strewn about the floor. Mayo told appellant to follow him to the office, and appellant did so, speaking briefly to the man who had been distracting the checker. That man told the checker he had left his checkbook in the car, left the store, and did not return. Back in the office, Mayo called the police and, with the assistance of some Minyard employees blocking the door, held appellant there until the police arrived. Appellant told Mayo and the police he did not know anything about the cigarettes, and he denied moving the trash can. Appellant testified he went to Minyards at about 7:40 a.m. to see if the store would cash a Kroger money order. Appellant asked a manager when the customer-service center opened, the manager said it opened at eight o'clock, and appellant told the manager he would sit and wait. Appellant then testified he was leaving the store after speaking to the manager when a cashier approached him holding a trash can and told appellant he had forgotten something. Appellant asked what he had forgotten, and the cashier said, "This here." The manager asked appellant to follow him to the office to see whether the videotape showed appellant taking cigarettes. Appellant testified he did not take any cigarettes and never touched the trash can. Appellant saw a man standing by the magazine rack looking at books, and he saw a man standing over the trash can by the service center. Appellant testified he walked past the trash can, but he stated he did not look in the trash can, move it, or see any cigarettes in it. Bryant testified there were seventeen cigarette cartons in the trash can appellant moved. The cigarettes had a value of $584.97. Mayo testified that an inventory of the cigarettes is not kept, and he could not be certain if any cartons of cigarettes were missing from the service center. The State introduced evidence that appellant had two prior theft convictions. See Tex. Pen. Code Ann. § 31.03(4(D) (Vernon 2003). SUFFICIENCY OF THE EVIDENCE
When reviewing the legal sufficiency of the evidence, this Court must examine the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Herrin v. State, 125 S.W.3d 436, 439 (Tex.Crim.App. 2002). In making this determination, the reviewing court considers all the evidence admitted including improperly admitted evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001); Holberg v. State, 38 S.W.3d 137, 139 (Tex.Crim.App. 2000). Questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim. App. 1998); Whitaker v. State, 977 S.W.2d 595, 598 (Tex.Crim. App. 1998). The standard of review in a circumstantial evidence case is the same as in a direct evidence case. King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995). Under a factual sufficiency review, we view all the evidence in a neutral light to determine if the trier of fact was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, 2004 WL 840786, *7 (Tex.Crim.App. Apr. 21, 2004). Evidence is factually insufficient if the evidence of guilt, when viewed by itself, is to too weak to support the finding of guilt beyond a reasonable doubt. Id. When there is evidence both supporting and contrary to the verdict, "the contrary evidence may be so strong that the beyond-a-reasonable-doubt standard could not have been met." Id. Evidence supporting guilt can outweigh the contrary proof and yet be factually insufficient. Id. Under the indictment in this case, the State had to prove appellant intentionally and knowingly appropriated by exercising control over property, seventeen cartons of cigarettes with a value of less than $1500, without the effective consent of the owner, Beverly Bryant, with the intent to deprive the owner of the property. See Tex. Pen. Code Ann. § 31.03(a) (Vernon Supp. 2004). In his first and second points of error, appellant contends the evidence is legally and factually insufficient to prove Beverly Bryant is the owner of the cigarettes. The penal code defines "owner": "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(35)(A). Appellant concedes that Bryant was an "owner" of the store's property; however, appellant asserts the evidence does not show the cigarettes in the trash can were the store's property. Bryant and Mayo did not testify the cigarettes belonged to the store. Circumstantial evidence supports the trial court's finding that the cigarettes were store property. The evidence shows the cigarettes were kept in the service center, the service center was accessible through a swinging door, the cigarettes were found in a trash can, the trash can from the service center was missing, and trash was strewn about the service center. The trial court could reasonably conclude from these facts that the trash can in which the cigarettes were found was taken from the service center, and the cigarettes found in it were taken from the store's inventory kept in the service center. The trial court could conclude that the thief, to make room for the cigarettes in the trash can, emptied the trash can on the floor of the service center and then filled it with the store's cigarettes. Appellant argues this evidence does not overcome the possibility that another person or entity might have abandoned the cigarettes in the trash can: "The cigarettes could have been discarded in the trash can before the Appellant arrived by night-time personnel who were in the store, or by any of the other customers who were in the store that morning." (Footnotes omitted.) Even assuming this assertion is reasonable, it does not show Bryant was not the "owner" of the cigarettes. If the cigarettes were abandoned in the trash can belonging to the store, then the cigarettes were in the store's possession, which made the store, and thus Bryant, the "owner" of the cigarettes. See id. ("owner" defined as "a person who has . . . possession of the property"). Applying the standards of review set out above, we conclude the evidence is legally and factually sufficient to support the trial court's finding that Bryant was the owner of the cigarettes. We overrule appellant's first and second points of error. In his third and fourth points of error, appellant contends the evidence is legally and factually insufficient to prove appellant appropriated the cigarettes. The indictment charged appellant with appropriating the cigarettes by exercising control over them. See id. § 31.01(4)(B) (defining "appropriate" as "to acquire or otherwise exercise control over property other than real property"). Appellant argues the evidence is insufficient because no witness testified to seeing appellant take the cigarettes from the service center or put the cigarettes in the trash can. However, Bryant testified she saw appellant moving the trash can. Thus, the evidence shows appellant exercised control over the trash can and its contents, the cigarettes, by moving them. See Hill v. State, 633 S.W.2d 520, 521 (Tex.Crim.App. [Panel Op.] 1981); Baker v. State, 511 S.W.2d 272, 273 (Tex.Crim. App. 1974). Appellant argues, "the State has not proven that the Appellant did not just happen upon several cartons of cigarettes in a trash can, and that he only moved the trash can a small distance within the store after he saw what was discarded in the trash can." The trash can did not contain "several" cigarette cartons; it had seventeen cartons. Bryant testified the trash bag in the trash can was "loaded up" with cigarette cartons. The trial court could conclude from the evidence that appellant could tell the trash can contained cigarette cartons when he exercised control over the trash can and its contents by moving them. Even if appellant "only moved the trash can a small distance within the store" after noticing it contained cigarette cartons, he exercised control — and thus appropriated-the cigarettes by moving them. See Baker, 511 S.W.2d at 273. Appellant also argues the evidence does not exclude the possibility that someone other than appellant placed the cigarettes in the trash can. This possibility does not alter the fact that Bryant saw appellant exercise control over the trash can by moving it and the cigarettes inside it. Appellant also asserts his testimony shows he did not move the trash can. However, under both the legal and factual sufficiency standards, we must defer to the trier of fact's determination concerning the credibility of the witnesses. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003); Marvis v. State, 36 S.W.3d 878, 881 (Tex.Crim.App. 2001). In this case, the trial court gave Bryant's testimony greater credibility than appellant's. Applying the standards of review set out above, we conclude the evidence is legally and factually sufficient to support the trial court's finding that appellant appropriated the cigarettes. We overrule appellant's third and fourth points of error. In his fifth and sixth points of error, appellant contends the evidence is legally and factually insufficient to support the trial court's finding that appellant intended to deprive Bryant of the cigarettes. In determining the sufficiency of the evidence to support the trial court's finding of appellant's intent to deprive Bryant of the cigarettes, we consider appellant's words and acts as shown by the evidence. See Brown v. State, 122 S.W.3d 794, 803 (Tex.Crim.App. 2003), cert. denied, 124 So. Ct. 1678 (2004); Griffin v. State, 614 S.W.2d 155, 159 (Tex.Crim. App. [Panel Op.] 1981). Bryant testified appellant was moving the trash can from one point to another within the store. Mayo testified he saw the trash can had been moved beyond the checkout stands. The trial court could conclude from this evidence that appellant, while moving the trash can containing the cigarettes, was attempting to remove the cigarettes from the store. When he saw he was being observed by Bryant and Mayo, appellant set down the trash can and moved away from it. However, the trial court could rationally conclude from this evidence that while appellant was exercising control over the trash can and cigarettes by moving them, he intended to deprive Bryant of the cigarettes. Applying the standards of review set out above, we conclude the evidence is legally and factually sufficient to support the trial court's finding that appellant intended to deprive Bryant of the cigarettes. We overrule appellant's fifth and sixth points of error. In his seventh point of error, appellant contends the evidence failed to meet the required level when the State's case is based on circumstantial evidence. Appellant argues, "A conviction based on circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of guilt of the defendant." This doctrine is known as the reasonable alternative hypothesis construct, and it was abandoned in 1992 in Geesa v. State, 820 S.W.2d 154, 161 (Tex.Crim. App. 1991). Although Geesa was partially overruled in Paulson v. State, 28 S.W.3d 570, 573 (Tex.Crim.App. 2000), the reasonable alternative hypothesis construct has not been revived. The existence of a reasonable alternative hypothesis is relevant to a factual sufficiency determination, but it is not determinative. Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim. App. 1999); Herrero v. State, 124 S.W.3d 827, 834-35 (Tex. App.-Houston [14th Dist.] 2003, no pet.). Appellant argues, "The State did not exclude the reasonable hypothes[es] [1] that someone not connected with the appellant had placed those cigarettes in the garbage can, or [2] that the cigarettes did not belong to the store in the first place." The first hypothesis does not negate appellant's guilt because, regardless of who put the cigarettes in the garbage can, Bryant's and Mayo's testimony shows appellant exercised control over the cigarettes with the intent to deprive Bryant of the cigarettes. The second hypothesis was addressed under appellant's first and second points of error. Appellant's arguments do not show the evidence is legally or factually insufficient to support his conviction. We overrule appellant's seventh point of error. We affirm the trial court's judgment.