No. 05-05-00972-CR
Opinion Filed August 2, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-57015-PN. Affirmed.
Before Justices WRIGHT, MOSELEY, and LANG.
Opinion By Justice MOSELEY.
After a trial before the court, appellant Michael Etienne Grimmett was convicted of theft of a firearm, sentenced to confinement in a state jail for one year, and assessed a fine of $2,500. In two points of error, he challenges the legal and factual sufficiency of the evidence to support his conviction. For the reasons that follow, we overrule appellant's points of error and affirm the trial court's judgment.
I. FACTUAL BACKGROUND
There is evidence in the record that appellant entered a sporting goods store, Barber Boats and Motors, and indicated he desired to sell the store a rifle in his possession. After a short negotiation with Brian Chapman, the store's manager, and John Harris, the store's general manager, they agreed to buy the rifle from appellant for $200. Appellant also indicated his desire to purchase a different rifle from the store and another store employee began showing him various rifles. At some point during this time, one of the rifles that was being shown to appellant found its way into appellant's gun case, which he had also brought into the store. The manner in which the rifle ended up in appellant's gun case is a topic of dispute amongst the parties. Harris accused appellant of stealing the rifle, while appellant countered that he had accidentally closed the case with the rifle inside. The evidence shows the rifle in the case had the store's tag on it and that the serial number on the rifle matched that of one of the rifle bolts in the store's possession (the store's policy was to remove the bolts from their rifles for security purposes). II. APPLICABLE LAW
A person commits theft of a firearm if he unlawfully appropriates a firearm with the intent to deprive the owner of the firearm. Tex. Pen. Code Ann. §§ 31.03(a), (e)(4)(C) (Vernon Supp. 2005). A firearm is defined as: [A]ny device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use. Firearm does not include a firearm . . . that is:
(A) an antique or curio firearm manufactured before 1899; or
(B) a replica of an antique or curio firearm manufactured before 1899, but only if the replica does not use rim fire or center fire ammunition.
Tex. Pen. Code Ann. § 46.01(3) (Vernon 2003). "Appropriate" has been defined as: "to acquire or otherwise exercise control over property other than real property." Tex. Pen. Code Ann. § 31.01(4)(B) (Vernon Supp. 2005). It is not necessary for an actor to remove property from the premises in order to meet the element of appropriation. Hill v. State, 633 S.W.2d 520, 521 (Tex.Crim.App. 1981); Baker v. State, 511 S.W.2d 272, 273 (Tex.Crim.App. 1974). Intent to deprive is determined from the words and acts of the accused; it must exist at the time of taking. Griffin v. State, 614 S.W.2d 155, 159 (Tex.Crim.App. 1981). Proof of a mental state almost always depends upon circumstantial evidence. Sadler v. State, 728 S.W.2d 829, 831 (Tex.App.-Dallas 1987, no pet.). III. LEGAL SUFFICIENCY OF EVIDENCE
In his first point of error, appellant challenges the legal sufficiency of the evidence to support the finding that the rifle that appellant was accused of stealing met the statutory definition of a "firearm." The appellant also contends that the State bore the burden of showing the rifle did not fit into an exception to the statutory definition. A. Standard of Review
When reviewing the legal sufficiency of the evidence to support a criminal conviction, the critical inquiry is whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Chambers v. State, 866 S.W.2d 9, 15 (Tex.Crim.App. 1993). The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Mason v. State, 905 S.W.2d 570, 574 (Tex.Crim.App. 1995). We measure the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). B. Discussion
The record includes evidence that this particular rifle was a model 70 Winchester 300 WinMag, a rifle designed for hunting large game animals. There was testimony that the rifle was made to expel a projectile by striking a firing pin that discharges a bullet through a barrel. Appellant argues that the rifle cannot be a firearm because it was inoperable at the time due to the fact that the store had previously removed the bolt, which was necessary to the rifle's operation. The State correctly cites to Thomas v. State, 36 S.W.3d 709, 711 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd), where it was held that "46.01(3) of the Texas Penal Code does not require a firearm to be presently capable of firing; rather, a device ` designed, made, or adapted' to perform in the manner described is a firearm." Id. (emphasis added). Appellant attempts to distinguish Thomas on the grounds that the case involved a handgun and the opinion relied on cases involving pistols, handguns, and sawed-off shotguns. See Walker v. State, 543 S.W.2d 634, 637 (Tex.Crim.App. 1976) (pistol); Lewis v. State, 852 S.W.2d 667, 669 (Tex.App.-Houston [14th Dist.] 1993, no pet.) (sawed-off shotgun); Aikens v. State, 790 S.W.2d 66, 67-68 (Tex.App.-Houston [14th Dist.] 1990, no pet.) (handgun). However, appellant cites to no authority to support the argument that an inoperable rifle is somehow different from an inoperable pistol, handgun, or sawed-off shotgun. It is undisputed that the allegedly stolen rifle was designed and made to "expel a projectile through a barrel by using the energy generated by an explosion" and therefore fits the statutory definition of a "firearm." Appellant further argues the State bore the burden of proving the rifle did not fit into the antique or curio exceptions listed in the statutory definition of a "firearm." See Tex. Pen. Code Ann. § 46.01(3)(A), (B). Appellant recognizes the State is not required to prove that a weapon is not an antique or curio as part of its case in chief. Jackson v. State, 575 S.W.2d 567, 569 (Tex.Crim.App. 1979). However, appellant contends this Court has called that very principle into question in Freeman v. State, Nos. 05-01-01758-CR, 05-01-01759-CR, 2002 Tex. App. LEXIS 7361, at *5 (Tex.App.-Dallas Oct. 16, 2002, no pet.) (not designated for publication). Appellant's reliance on Freeman is misplaced. There the Court merely assumed for purposes of argument that the State bore the burden of proving that the exceptions did not apply, without actually deciding the issue. Accordingly, Freeman made no change to the existing law that was previously delineated in Jackson. The State does not have any burden of showing that the antique or curio exceptions do not apply in this case. Having considered the evidence in the record (including the above evidence) in the light most favorable to the verdict, we conclude a rational trier of fact could have found that the rifle in question was a "firearm" within the statutory definition. See Jackson, 443 U.S. at 319; Mason, 905 S.W.2d at 574. We conclude the evidence is legally sufficient to support the conviction. We overrule appellant's first point of error. IV. FACTUAL SUFFICIENCY OF EVIDENCE
In his second point of error, appellant challenges the factual sufficiency of the evidence to support the finding that the rifle in question was a "firearm." Appellant also challenges the factual sufficiency of the evidence to support the finding that he appropriated the rifle with the intent to deprive the owner of that rifle. Finally, the appellant argues that inconsistencies in the testimony of the witnesses for the State creates a reasonable doubt as to appellant's guilt. A. Standard of Review
In conducting a factual sufficiency review, we determine whether, considering all of the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). Evidence may be factually insufficient in two ways. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, weighing the evidence both supporting and contrary to the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. Id. Thus, even if the evidence of guilt predominates in favor of conviction, it may still be insufficient to prove the elements of the offense beyond a reasonably doubt. Id. See also Johnson v. State, 23 S.W.3d 1, 10-11 (Tex.Crim.App. 2000). The fact finder is the exclusive judge of the witnesses' credibility and the weight to be given their testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App. 1984); Dumas v. State, 812 S.W.2d 611, 615 (Tex.App.-Dallas 1991, pet. ref'd). Thus, the fact finder is free to accept or reject any or all of the evidence presented by either side. See Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). The reviewing court must give deference to the fact finder's findings and exercise its fact jurisdiction only to prevent a manifestly unjust result. See Zuniga, 144 S.W.3d at 481-82; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). B. Discussion
The record includes evidence that the rifle in question was found in appellant's gun case and that the case had been closed and locked by appellant. The record also indicates that appellant did not have permission to place the rifle in the gun case and close the case. The appellant points to the fact that, with the exception of the testimony from John Harris, the majority of the record indicates that he did not try to leave the store with the rifle. However, it was not necessary for appellant to remove or attempt to remove the rifle from the store in order to unlawfully appropriate the rifle. It was sufficient that appellant "exercised control" over the property by closing and locking the gun case with the rifle inside without the permission of the rifle's rightful owner. Appellant argues the evidence was factually insufficient to support a finding that he possessed the intent to deprive the store of the rifle. Appellant points to the evidence that the store still possessed appellant's license and money. Appellant claims that he had no intentions of leaving the store without those items in exchange for an inoperable rifle, whereas the State points out that if the store did not realize its rifle is missing, appellant would have received his license and money and left the store with the rifle inside his gun case. The record indicates that the rifle was in fact inside the gun case and that appellant initially refused to open the gun case for inspection by the store employees. Whether or not appellant intended to leave with or without his license and money is irrelevant because the actual outcome of that situation never happened and it is impossible to now determine whether or not appellant would have waited for his license and money to be returned. Appellant also challenges the factual sufficiency of the evidence to support the finding that the rifle in question was a "firearm" within the statutory definition. Appellant points to the testimony of John Harris and Brian Chapman, who both testified that the bolt had been removed from the rifle in question and that the rifle was worthless and inoperable without the bolt. As was previously stated, it is unnecessary for the rifle to be operational at the time of the theft. See Thomas, 36 S.W.3d at 711. It is sufficient that the rifle was designed or made "to expel a projectile through a barrel by using the energy generated by an explosion." Tex. Pen. Code Ann. § 46.01(3). There was testimony that the rifle in question was designed to expel a bullet through the barrel by striking a firing pin. Finally, appellant argues that the inconsistencies in the testimony of the State's witnesses were sufficient to create a reasonable doubt in the mind of the fact finder. In particular, appellant points to inconsistent testimony about the type of firearm that appellant was selling to the store, the value of the allegedly stolen rifle, the identity of the person who called attention to the missing rifle, the identity of the person who placed the gun case on the counter, and whether there was a struggle over the gun case. Here the trial judge is the exclusive judge of the witnesses' credibility and the weight to be given their testimony. Tex. Code Crim. Proc. Ann. art. 38.04. We must give deference to the trial judge's findings, absent a manifestly unjust result. Nothing in the record indicates that a manifestly unjust result has been reached in the determination of the witnesses' credibility and weight to be given to their testimony. Viewing all the evidence in a neutral light, we conclude the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484-85. We need not further detail the rest of the evidence. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). We conclude the evidence is factually sufficient to support the conviction. We overrule appellant's second point of error. V. CONCLUSION
Having overruled appellant's two points of error, we affirm the trial court's judgment.