No. 05-07-01213-CR
Opinion Filed January 13, 2009. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 380th District Court Collin County, Texas, Trial Court Cause No. 380-80467-07.
Before Justices WRIGHT, O'NEILL, and LANG. Opinion By Justice O'NEILL.
MICHAEL J. O'NEILL, Justice.
Appellant Ethan Wynn was indicted for theft, enhanced to a state jail felony. A jury found him guilty and sentenced him to eighteen years in prison. In his first two issues, appellant claims the evidence is both legally and factually insufficient because the State failed to prove he exercised control over the merchandise. In his remaining two issues, he contends the trial court failed to properly instruct the jury on the definition of criminal attempt and improperly commented on the weight of the evidence in the charge. We affirm the trial court's judgment.
Factual Background
On December 22, 2006 around 10:30 p.m., Abay Ergate was working as a store clerk at a Shell station in Plano, Texas. Appellant entered the store, picked up a Red Bull and a cigar, and then requested several cartons of cigarettes from Ergate. Ergate bagged the items and then requested payment. Appellant said he would pay with a credit card after Ergate gave him the bag of merchandise. Ergate refused and said he would give him the bag after he received payment. Appellant then flashed a "credit card" that Ergate recognized as an apartment gate opener. When Ergate refused to turn over the bag without payment, appellant left the store. Ergate then placed the bag of merchandise under the counter so he could attend to the other waiting customers. Appellant returned to the store approximately a minute later. One witness testified a police officer was getting gas for his patrol car when appellant first left the store. It appeared to him appellant was waiting for the officer to leave so he could re-enter the store. Ergate testified appellant walked behind the counter, pushed him, and then grabbed the plastic bag with the cigarettes. Two other customers, along with Ergate, grabbed appellant and detained him until an officer arrived. A jury convicted appellant of theft, enhanced to a state jail felony. This appeal followed. Sufficiency of the Evidence
In his first two issues, appellant contends the evidence is both legally and factually insufficient to support his conviction because the State failed to prove he exercised control over the cigarettes because the witnesses provided contradictory testimony. The State responds it was within the province of the jury to consider such evidence and conclude appellant was guilty. In a legal sufficiency review, we examine the evidence in the light most favorable to the judgment and determine whether any 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); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004). The standard is the same for both direct and circumstantial evidence cases. Burden v. State, 55 S.W.3d 608, 613 (Tex.Crim.App. 2001); Bates v. State, 155 S.W.3d 212, 215 (Tex.App.-Dallas 2004, no pet.). In a factual sufficiency review, we view all of the evidence in a neutral light to determine whether the fact-finder's guilty verdict was rationally justified. Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007); Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given contradictory testimony. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). Under both standards of review, the fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). Texas Penal Code section 31.03 provides that a person commits the offense of theft if he unlawfully appropriates property with intent to deprive the owner of property. Tex. Penal Code Ann. § 31.03(a) (Vernon Supp. 2008). It further states appropriation of property is unlawful if it is without the owner's effective consent. Id. § 31.03(b). "Appropriate" is defined as "to acquire or otherwise exercise control over property other than real property." Id. § 31.01(4)(B) (Vernon Supp. 2008). Further, it is not necessary to establish the property was removed from the premises or kept for a specific length of time. See Hill v. State, 633 S.W.2d 520, 521 (Tex.Crim.App. 1981); Baker v. State, 511 S.W.2d 272, 272-73 (Tex.Crim.App. 1974). Here, appellant attacks the credibility of Ergate because he asserts he was the only person to testify that he "grabbed" the cigarettes. He further contends Ergate's testimony was inconsistent, and he had problems communicating with the jury because of a strong Ethiopian accent. Appellant's contentions are without merit. Despite his accent, the record indicates Ergate clearly testified that appellant walked behind the counter, pushed him, grabbed the cigarettes, and tried to leave the store without paying. He further testified he suspected appellant wanted to take the merchandise without paying because he kept looking around at the other customers and acting suspiciously. Nothing in the record indicates the jury had problems understanding his testimony because of his accent. Thus, the jury was free to believe his testimony and rely on it alone to support appellant's conviction. Harvey, 135 S.W.3d at 717 (holding fact-finder is exclusive judge of witness credibility and weight to be given testimony). Further, Ergate was not the only witness to testify that appellant grabbed the merchandise without first paying. Kendrick Davis entered the Shell station to pay for gas and observed appellant and Ergate arguing. Appellant left but upon his return, Kendrick testified "He kept on arguing with the cashier and he was getting closer and closer and he just started grabbing cigarettes and tried to make a run for it." After appellant grabbed the cigarettes, Kendrick grabbed him and detained him until an officer arrived. When asked during cross examination if it was possible appellant only attempted to grab the cigarettes, Kendrick testified "he grabbed it." We acknowledge that Kendrick later testified on cross examination that he was not one hundred percent sure if appellant grabbed the cigarettes and had control of them; however, the jury was free to consider his contradictory testimony and determine the weight it should be given. Likewise, on redirect examination, he clarified there was no doubt in his mind appellant was trying to steal the cigarettes. Carlo Lopez, who was also inside the Shell station during the incident and later gave a statement to police, acknowledged that he did not tell police he saw appellant in possession of the cigarettes. However, in his written statement, he state "The man wanted to leave with the merchandise but we detained him with the things." The jury could infer from his statement that the "things" referred to the cigarettes, which appellant had in his possession. Further, the jury heard testimony from Officer Jonathan Hay. As the first officer to arrive on the scene, he took witness statements and concluded a theft had occurred. He testified that Ergate told him appellant grabbed the cigarettes and tried to leave the store. Despite some contradictory testimony, the jury was free to consider such testimony, weigh it accordingly, and then believe Ergate's testimony as the individual who was closest to the scene and directly involved. Thus, after reviewing the evidence in the light most favorable to the judgment, a rational trier of fact could have found the evidence legally sufficient because appellant exercised control over the cigarettes, and therefore committed theft as defined under section 31.03 of the penal code. See Tex. Penal Code Ann. § 31.03(a); Jackson, 443 U.S. at 319; Lane, 151 S.W.3d at191-92. After reviewing the evidence in a neutral light, we likewise conclude the evidence is factually sufficient. Roberts, 220 S.W.3d at 524; Watson, 204 S.W.3d at 415. The record does not clearly reveal a different result is appropriate; therefore, we must defer to the fact-finder's determinations. Johnson, 23 S.W.3d at 8. We overrule appellant's first and second issues. Jury Charge Issues
In his third issue, appellant contends the trial court failed to instruct the jury as to the definition of criminal attempt in the abstract and application paragraph, which resulted in egregious harm. The State responds that even if the jury charge contains any error, appellant did not suffer egregious harm because any error was nullified by the jury's guilty verdict of the greater offense. We agree with the State. Because appellant failed to object to the charge at trial, the standard of review for error is whether the charge resulted in egregious harm to appellant. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984); In re A.E.B., 255 S.W.3d 338, 350 (Tex.App.-Dallas 2008, pet. dism'd). Assuming without deciding whether the trial court erred, any alleged error did not result in egregious harm. Where error occurs in the jury instruction for a lesser-included offense and the jury finds the defendant guilty of the greater offense, the verdict nullifies any possible harm from the defective instruction. See Saunders v. State, 913 S.W.2d 564, 569-572 (Tex.Crim.App. 1995); see also Clark v. State, 717 S.W.2d 910, 918 (Tex.Crim.App. 1986); Starks v. State, 127 S.W.3d 127, 133 (Tex.App.-Houston [1st Dist.] 2003, pet. dism'd) (noting that when jury convicted defendant on the greater offense of aggravated assault, it had no reason to consider whether appellant might be guilty of the lessor-included offense of assault; therefore, any charge error was harmless because the jury need not reach the issue). Here, the alleged error occurred in the instruction of the lesser-included offense of attempted theft. When the jury convicted appellant of the greater offense of theft, the verdict nullified any alleged error and harm in the lesser-included offense portion of the charge. As such, appellant did not suffer any egregious harm and has failed to provide any argument to distinguish this controlling authority. We overrule his third issue. In his fourth issue, appellant complains the trial court erred in commenting on the weight of the evidence in the lesser-included offense portion of the jury charge. Again, appellant failed to object to any alleged error; therefore, we conduct an egregious harm analysis. Almanza, 686 S.W.2d at 171; In re A.E.B., 255 S.W.3d at 350. As concluded above, because the alleged error occurred in the lesser-included offense portion of the charge, any harm was nullified when the jury convicted appellant of the greater offense. See Clark, 717 S.W.2d at 919; Starks, 127 S.W.3d at 133. Thus, appellant has failed to establish egregious harm. We overrule appellant's fourth issue. Having overruled appellant's issues, we affirm the trial court's judgment.