Opinion
No. 05-09-00697-CR
Opinion issued July 13, 2011. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the County Court at Law No. 6 Collin County, Texas, Trial Court Cause No. 006-87498-08.
Before Justices O'NEILL, FRANCIS, and MYERS.
MEMORANDUM OPINION
A jury convicted Randall Keith Massey of misdemeanor theft, and the trial court assessed punishment at 180 days in the county jail probated for eighteen months and a $200 fine. In two issues, appellant argues the trial court erred in admitting an incomplete videotape and in not allowing him time and access to the full videotape. In a third issue, he challenges the legal sufficiency of the evidence to sustain his conviction. We affirm. The evidence showed that appellant went to a Wal-Mart store in Murphy, Texas and filled his shopping cart with items valued at $186.90. Appellant attracted the attention of the store's loss prevention officer, Wayman Gilley, because he was stacking items in his cart in a "fort style," by placing large bulk around the edges of the cart and placing smaller items in the center. Gilley watched Massey in the produce area at the front of the store. Two store employees were nearby. When the employees left the area, Massey pushed his basket out the door passed the last point of sale. Gilley then stopped Massey, who explained that a store associate told him that drink vending machines were located outside and he had gone out the doors with his cart to buy a drink. Gilley, however, testified several drink machines were located inside the store, specifically around the cashiers' lanes at the front of the store. Gilley also said shoppers regularly drank beverages they picked up inside the store and then paid for at checkout. Gilley called the police and told Massey that if he paid for the items in the cart, Wal-Mart would only press charges against him for criminal trespass, not theft. Massey attempted to pay for the items with a corporate credit card, but the card was rejected at the register. Wal-Mart refused to accept a check linked to the same account as the corporate card. Massey told the police he did not have any money. When they arrested him for theft, they found $11 in cash and at least seven credit cards in his wallet. After hearing all the evidence, the jury convicted appellant of theft. In his third issue, Gilley contends the evidence is legally insufficient to support his conviction because the State failed to establish beyond a reasonable doubt that he intended to deprive Wal-Mart of its property. On a legal sufficiency challenge, we examine the evidence in the light most favorable to the jury's verdict to 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). The standard is the same for both direct and circumstantial evidence cases. Bates v. State, 155 S.W.3d 212, 215 (Tex. App.-Dallas 2004, no pet.). The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all evidence presented by either side. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). To obtain a conviction for theft, the State must prove beyond a reasonable doubt that the defendant unlawfully appropriated property with the intent to deprive the owner of it without the owner's effective consent. See Tex. Penal Code Ann. § 31.02(a), (b)(1) (West Supp. 2010). Intent to deprive is determined from the words and acts of the accused and must exist at the time of the taking. Griffin v. State, 614 S.W.2d 155, 159 (Tex. Crim. App. [Panel Op.] 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.). Appellant asserts evidence of intent to deprive was insufficient because the evidence showed he only briefly left the store to buy a soft drink, after having been authorized by an employee, and he intended to return to the store once he had done so. Although appellant gave this explanation to Gilley and the police, the jury did not have to believe it. Other evidence established numerous coolers were located inside the store near the entrance and appellant could have gotten a drink from one of them. Moreover, appellant was offered the opportunity to pay for the goods in the basket, and he could not. Having reviewed the evidence in the light most favorable to the judgment, we conclude the jury could have rationally found beyond a reasonable doubt that appellant intended to deprive Wal-Mart of its property. We overrule the third issue. Appellant's first and second issues both involve the admission of a videotape put together by Gilley from Wal-Mart's numerous surveillance cameras. Gilley testified Wal-Mart used a "multiplexer" surveillance system, which recorded video from cameras throughout the store. Gilley said the store had four videocassette recorders; on each VCR was a "multiplex," and each multiplex had sixteen camera angles. To get a useable tape, Gilley explained he had to "dub" from the multiplexer system to a regular videotape by selecting the particular cameras and times to be dubbed. The Murphy Police Department did not have a multiplexer system to view any tape that was not first dubbed onto a regular video. The seven-minute tape dubbed by Gilley depicted appellant in the produce area before walking out the doors with a cart of groceries and coming back into the store with Gilley. Gilley said the tape is "boiled down" to angles relevant to the case. He said he followed standard operating procedures and did not do anything misleading or deceptive when creating the video. Finally, Gilley testified the tape was a correct and accurate reflection of the events he saw that day. In his first issue, appellant contends the trial court abused its discretion in admitting the video, over objection, because it was "an incomplete video of the time he was in the store." He asserts the video does not portray his "contact or possible conversation" with a Wal-Mart employee in the produce section shortly before he left the store. He contends this "absence of critical evidence" raises a question about the authenticity of the video. As support for his argument, he relies solely upon Texas Rule of Evidence 1003. We apply an abuse of discretion standard when reviewing a trial court's decision to admit or exclude evidence. See Ramos v. State, 245 S.W.3d 410, 417-18 (Tex. Crim. App. 2008). We uphold a trial court's evidentiary ruling so long as it is within the "zone of reasonable disagreement" and correct under any legal theory applicable to the case. Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). Rule 1003 authorizes the use of copies to the same extent as an original unless one questions the authenticity of the original or demonstrates it would be unfair to admit the duplicate. See Tex. R. Evid. 1003. Here, appellant is not complaining about the authenticity of the original recording; he is complaining that the videotape admitted has been "edited" from its original content. Thus, rule 1003 does not apply. The evidence at trial showed that the only videotape in the State's possession was the one shown at trial; the original recording was in Wal-Mart's possession. The record does not show appellant made any effort to obtain the original recording from Wal-Mart. Under these circumstances, we cannot say appellant has shown any error in the admission of the videotape. See Tex. R. Evid. 106 (providing that where only a portion of a recording is admitted, the other party may introduce "any other part . . . which ought in fairness to be considered contemporaneously with it"). We overrule the first issue. In his second issue, appellant complains the trial court erred in denying him access to the complete surveillance recordings once Gilley testified he could, if requested, produce a copy of even "60 minutes of all 70 cameras" in the store. Other than a citation to Brady v. Maryland, 373 U.S. 83 (1963), appellant has not set out the law or made an attempt to apply any law to the facts of this case. Moreover, he has not provided a record citation to support his assertion that the trial court denied his request for access to the video and instead "urged" that he could raise the issue with the jury. Under these circumstances, we conclude the issue is inadequately briefed. See Tex. R. App. P. 38.1(i). We overrule the second issue. We affirm the trial court's judgment.