Opinion
No. 09-04-182 CR
Submitted on August 19, 2004.
Opinion Delivered August 25, 2004. DO NOT PUBLISH.
On Appeal from the 217th District Court, Angelina County, Texas, Trial Cause No. 23,874. Affirmed.
Before McKEITHEN, C.J., BURGESS, and GAULTNEY, JJ.
MEMORANDUM OPINION
A jury found Larry Shane Lahman guilty of felony theft and sentenced him to two years in a state jail facility. Lahman brings three issues. In the first two, he attacks the legal and factual sufficiency of the evidence, and in the third, he maintains the State's rebuttal argument improperly attacked defense counsel and prejudiced Lahman's right to a fair trial. Early one morning, between 12:00 and 2:00 a.m., Lahman entered Love's Country Store. Employees Cynthia Moore and Melba Franks were in the store's office and observed Lahman walk into the store dressed in shorts and a sleeveless tee shirt; he also was carrying a pair of blue jeans over his right shoulder. Moore watched Lahman walk in front of the office and down the last aisle of the store toward the restrooms. On his way to the restrooms, Moore saw Lahman bend over toward the shelves where trucking supplies were located; Lahman then continued to the restroom. Moore called the police; she had been asked by the police to call if Lahman entered the store again because he was suspected of shoplifting. When Lahman came out of the restroom, he was wearing the blue jeans. He purchased a package of cigarettes at the counter and left. In the process of leaving the store's parking lot on a bicycle, Lahman was stopped by police and questioned. Lahman denied taking anything from the store without paying for it. Officer Bradley conducted a "pat-down" of Lahman and found a "tire checker" under the left side of his pants tied to the shorts he was wearing under his jeans. Lahman told the officers he had the tire checker attached to his shorts to defend himself from dogs while he rode his bicycle. Officer Scott spoke with the store employees and viewed the store's video of the incident. According to Scott, the video showed that Lahman walked down the aisle where the tire checkers were located on the bottom shelf but did not show him taking any thing. Neither of the store employees saw Lahman take the tire checker. While Franks saw Lahman bend down and reach out, she did not see him pick anything up. Franks also testified Lahman did not have the checker attached to his shorts when he first entered the store and she thought concealing it would have been difficult. A UPC sticker (showing a merchandise price of $19.99) was still attached to the tire checker when police found it on Lahman. However, the State's witnesses conceded that removing such a sticker could be difficult and that some customers simply leave the sticker on the tire checker. The brand of tire checker sold at Love's is a common one and can be purchased at locations other than Love's. The officers did not take custody of the video tape (which was not offered into evidence); they returned the tire checker to the store clerks and took no photographs of it. Lahman did not have permission to take the tire checker from the store. When the officers returned to the station, they learned that Lahman had two prior convictions; thus, he was charged with a state jail felony instead of a misdemeanor. In issue two, Lahman attacks the legal sufficiency of the evidence. In reviewing legal sufficiency, we review the evidence in the light most favorable to the verdict and consider whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Rayford v. State, 125 S.W.3d 521, 526 (Tex.Crim.App. 2003), petition for cert. filed, ___ U.S.L.W. ___ (U.S. Apr. 26, 2004) (No. 03-10038) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). This standard is the same for both direct and circumstantial evidence cases. Burden v. State, 55 S.W.3d 608, 613 (Tex.Crim.App. 2001). Though the evidence here is primarily circumstantial, it is legally sufficient. The police found a tire checker tied to Lahman's shorts over which he was wearing jeans. The checker looked new, was the same brand as that carried by the store, and still had the UPC code attached. Franks says Lahman did not have the checker tied to his shorts when he entered the store. Both employees saw him bend over as he walked down the aisle where the checkers were located; Franks saw him reach out with his hand Considering the evidence in the light most favorable to the verdict, a rational trier of fact could have determined Lahman took a checker from the store, without consent and intended to keep it. Issue two is overruled. In his first issue, Lahman contests the factual sufficiency of the evidence. In reviewing factual sufficiency, we examine all of the evidence neutrally to determine whether it is so weak as to make the verdict clearly wrong and manifestly unjust or whether the adverse finding is against the great weight and preponderance of the available evidence. Sims v. State, 99 S.W.3d 600, 601 (Tex.Crim.App. 2003). The jury is entitled to resolve any conflicts in the evidence, to evaluate the credibility of witnesses, and to determine the weight of particular evidence. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). The evidence shows that no one saw Lahman actually take a tire checker from the store. No one testified that an inventory count showed the store was missing a tire checker. No one testified that the UPC code on the tire checker Lahman had was the same as that used by Love's. The tire checker was a common brand that could have been purchased elsewhere. And Lahman told police he used the tire checker for protection. However, Lahman had a tire checker tied to his shorts when the police searched him, one that was not there when he entered the store according to Franks, and her testimony is uncontradicted. Further, Lahman's conduct is a factor the jury could have considered. He walked in the store in shorts and with jeans over his shoulder. Both employees observed him bend over as he walked down the aisle where the tire checkers were located. Franks saw him reach out with his hand as he was bending. Minutes later Lahman emerged from the restroom dressed in jeans, which hid the tire checker. While the evidence is circumstantial, we cannot say it is so weak as to make the verdict clearly wrong or manifestly unjust or against the great weight and preponderance of the available evidence. Issue one is overruled. Issue three maintains the State's rebuttal argument improperly attacked defense counsel and prejudiced Lahman's right to a fair trial. The State argued as follows:
[Defense counsel] told you things that weren't even put into evidence through a witness's testimony. No one said Mr. Lahman left the thing out there on his bike. I jumped out in a leap of faith to tell you that I think that's what he's going to tell you. I think that's where he's going to make a leap of faith and say that's probably what happened because at least that might help us fit our story together. There's no evidence of that. No one heard that. No officer heard him say that.
At best he told the officers, "Well, yeah, I used this thing that I'm hiding under my jeans to beat off the dogs." He didn't even say he used it for that reason that night. Those facts are not in evidence. That's just [defense counsel's] telling you what might fit his story. Don't use that when you go back there to deliberate. It's not right. It's not proper, and it's not what you're instructed to do. You consider only the evidence and only what the officers told you. There is no evidence, not a shred of evidence. . . .Defense counsel objected and the trial court overruled his objection. Lahman maintains the prosecutor's argument cast doubt on defense counsel's truthfulness. Lahman further contends when the trial court overruled the objection, the jury may have thought the prosecutor's argument was proper and defense counsel was wrong in making the objection. Lahman argues the prosecuting attorney cast a "dark cloud over the head" of defense counsel and as a result also cast a "dark cloud" over appellant, prejudicing his ability to have a fair trial. The State counters that its rebuttal argument was only a response to opposing counsel's argument. In regard to the tire checker, Lahman's attorney had argued, "It was on him when he got back outside because he has it with his bike where he uses it to protect himself from the dogs." The State is correct that defense counsel's argument could be construed as a deduction that Lahman had the tire checker outside on his bicycle when he went into the store. And, as the State asserts, there is no testimony Lahman ever told anyone he had the tire checker on his bike when he went into the store. The State was properly answering an argument made by opposing counsel. See Smith v. State, 898 S.W.2d 838, 845 (Tex.Crim.App. 1995). Issue three is overruled. We overrule all three of appellant's issues and affirm the trial court's judgment.
A "tire checker" is used by truck drivers to check air pressure on their tires.
A person commits theft by unlawfully appropriating property with intent to deprive the owner of property; appropriation of property is unlawful if it occurs without the owner's effective consent. See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3636 (current version at TEX. PEN. CODE ANN. § 31.03(a),(b) (Vernon Supp. 2004)). The offense is a state jail felony if the value of the property stolen is less than $1,500 and the defendant has been previously convicted two or more times of any grade of theft. See Act of May 24, 1995, 74th Leg. R.S., ch. 734, 1995 Tex. Gen. Laws 3844 (current version at TEX. PEN. CODE ANN. § 31.03(e)(4)(D) (Vernon Supp. 2004)).
As we have previously explained:
"Circumstantial evidence" is direct proof of secondary facts which, by logical inference, demonstrates the ultimate fact to be proven. In the law of evidence, an inference is a fact or proposition drawn from an admitted or otherwise proven fact. It is a logical consequence flowing from a proven fact. If circumstantial evidence provides no more than a suspicion, the jury is not entitled to reach a speculative conclusion.
Brewer v. State, 126 S.W.3d 295, 297 (Tex. App.-Beaumont 2004, pet. ref'd) (citations omitted).