No. 05-10-00553-CR
Opinion Filed January 31, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the County Court at Law No. 5, Collin County, Texas, Trial Court Cause No. 005-85183-09.
Before Justices FITZGERALD, LANG-MIERS, and FILLMORE.
Opinion By Justice FILLMORE.
Ian Alan Robertson waived a jury and pleaded not guilty to theft. After finding Robertson guilty, the trial court assessed punishment at 180 days in the county jail, probated for eighteen months, and a $250 fine. In a single point of error, Robertson contends the evidence is legally and factually insufficient to support the conviction. We affirm.
Evidence Presented
On June 17, 2009, Robertson drove Brandon San Miguel to a Tom Thumb store in Allen where San Miguel took over $900 in merchandise without paying for it. An off-duty Tom Thumb employee saw San Miguel come out of the grocery store with a cart "heapingly piled" with groceries. According to the employee, other than larger items, Tom Thumb places all of a customer's items in a bag. The employee noticed the items in San Miguel's cart were not in bags. The employee saw San Miguel push the cart behind a pillar and make a telephone call. The employee called Tom Thumb and asked to speak to the manager because she "had seen somebody outside with a basket full of groceries, no bags, and they were hiding behind the pillars out front." Less than five minutes later, the employee saw Robertson driving through the parking lot from the west. The employee testified Robertson was driving "pretty fast," ran over a curb, and "whipped" into a parking space in front of the store adjacent to the Tom Thumb. According to the employee, "he was in a hurry, you could tell." Robertson parked by the pillar where San Miguel was standing with the cart. As San Miguel began loading items into Robertson's vehicle's trunk, the employee notified a police officer at a nearby GameStop about a possible theft. Allen police officer Thomas Mulkey testified he was conducting a theft investigation at the nearby GameStop when a woman came to the store and said she saw two people at Tom Thumb stealing "beer and meats." Mulkey left the GameStop and approached a gray Taurus that was parked adjacent to Tom Thumb's front entrance. Mulkey saw San Miguel putting beer and meat into the Taurus's trunk while Robertson sat in the driver's seat. Although the vehicle was stopped, the engine was running. Mulkey asked San Miguel to provide a receipt for the groceries, but San Miguel was unable to do so. The store manager said no one had paid for the items. Sergeant Robert Hemmenway, a criminal investigation supervisor with the City of Allen, asked Robertson for his driver's license. Robertson fumbled with his driver's license and admitted he had been drinking alcohol and smoking marijuana that day. Hemmenway asked Robertson what was going on, and Robertson responded that he did not steal anything. Robertson said he gave San Miguel a ride to the store to buy some groceries. Robertson said he went inside the store with San Miguel to use the restroom and to "point out what he wanted"-Zebra Cakes and Nutty Bars-then went back to the car to wait for San Miguel. Robertson claimed his car was right in front of the Tom Thumb. Hemmenway pointed out that Robertson's car was not parked directly in front of the store. Robertson then said he moved the car "further down." Hemmenway asked why he moved the car from the front of the store, and Robertson responded he came from even further down and pointed to the east. This statement conflicted with both the Tom Thumb employee's statement that Robertson came from the west and with the angle of the car in the parking space. Hemmenway then asked Robertson if he had received a phone call from anyone or if anyone asked him to move the car. Robertson denied receiving a phone call. Hemmenway then dialed the last number called from San Miguel's cell phone, and Robertson's phone began to ring. Hemmenway testified that the time frame for the last call dialed from San Miguel's phone was "just prior to Officer Mulkey calling out" for backup officers. According to Hemmenway `[t]hat matched up with what the witness was saying that [San Miguel] pushed the cart out, hunkered down behind a pier, and called someone and the car came whipping up from the west in the rapid fashion." Hemmenway then arrested Robertson for theft. Based on his training and experience, Hemmenway believed, based on all the circumstances, that Robertson was the "getaway driver" and was involved in the theft. After Robertson was arrested, officers photographed the cart, the trunk, and the interior of the vehicle. The photographs show seven or eight DVD movies on the front passenger floorboard of Robertson's car and various food items in the cart, the trunk, and the car, including frozen pizzas, packages of shrimp, lobster, and steak, Zebra Cakes, Nutty Bars, and several cases of beer. The store manager scanned the items and determined the price of the items was $928.67. San Miguel testified on Robertson's behalf. According to San Miguel, he asked Robertson to drive him to the store to buy food for a cookout. San Miguel testified that, at some point, Robertson asked him to get some Zebra Cakes and Nutty Bars. San Miguel testified he told Robertson that he would pay for those items and that he did not discuss stealing the items with Robertson. San Miguel confirmed that both he and Robertson went inside the store. San Miguel had not intended to take the groceries without paying for them. But when he realized he did not have as much money as he had thought, he "made a poor decision" and walked out of the store with the cart without paying for the items. San Miguel did not see Robertson outside, so he called him on his cell phone and asked Robertson to pick him up. He had to wait "quite some time" for Robertson because Robertson was eating at a fast food restaurant. San Miguel testified he did not recall whether Robertson got out of the car and helped him load the items into the trunk. Robertson denied knowing anything about the theft, and testified he had no idea San Miguel was going to steal groceries. According to Robertson, San Miguel asked for a ride to the grocery store to buy food for the cookout. Robertson thought San Miguel was going to pay for the items and requested that San Miguel buy some Zebra Cakes and Nutty Bars. Robertson drove to the store, parked in front of the entrance, let San Miguel out of the car, and then drove to a fast food restaurant and ate in the parking lot. Robertson denied driving to the west of the Tom Thumb. After a short time, San Miguel called his cell phone and said, "[I]'m ready. I'm coming out." Robertson drove back to the store and parked "next to" the entrance. He waited for a few minutes before San Miguel approached the car, then he "popped the trunk" and waited inside the car while San Miguel put items into the trunk. Robertson testified he did not recall if San Miguel put anything inside the car because he was not paying attention to what San Miguel was doing. However, he admitted that photographs taken of the interior of his vehicle showed several DVDs laying loose on the front passenger floorboard. Robertson denied that he answered Hemmenway's question about whether he had received a telephone call from San Miguel. Robertson admitted he had previous convictions for criminal trespass, evading arrest, and assault. Applicable Law
In a single point of error, Robertson challenges the legal and factual sufficiency of the evidence. The Texas Court of Criminal Appeals has overruled Clewis v. State, holding that the Jackson v. Virginia standard is the only standard a reviewing court is to apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). Therefore, we will address Robertson's points under the Jackson v. Virginia standard. In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a 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); Brooks, 323 S.W.3d at 895. We are required to defer to the fact finder's credibility and weight determinations because the fact finder is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326 ("a court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution"). "Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); see also King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000). In a circumstantial-evidence case, it is unnecessary for every fact to point directly and independently to the defendant's guilt; rather, it is sufficient if the finding of guilt is supported by the cumulative force of all the incriminating evidence. Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006). The standard of review is the same for cases based on direct and circumstantial evidence. Hooper, 214 S.W.3d at 13; King, 29 S.W.3d at 565. The State was required to prove beyond a reasonable doubt that Robertson appropriated property, without the owner's effective consent, with the intent to deprive the owner of the property. Tex. Penal Code Ann. § 31.03(a), (b) (West Supp. 2010). "Appropriate" means to acquire or otherwise exercise control over property. Id. § 31.01(4)(B). A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he aids the other person in committing the offense. See Tex. Penal Code Ann. § 7.02(a)(2) (West 2003). In determining whether the accused is guilty as a party, the fact finder may consider events occurring before, during, or after commission of the offense. See Michel v. State, 834 S.W.2d 64, 67 (Tex. App.-Dallas 1992, no pet.). Participation in an enterprise may be inferred from the circumstances and need not be shown by direct evidence. Wygal v. State, 555 S.W.2d 465, 469 (Tex. Crim. App. 1977). Thus, circumstantial evidence may be sufficient to prove that a person is a party to an offense. Powell v. State, 194 S.W.3d at 506; Wygal, 555 S.W.2d at 469. Discussion
Robertson contends the evidence is insufficient to support his conviction. Specifically, Robertson argues the evidence is insufficient to prove he knew about the plan to steal the groceries, acted as a party to the theft, or had any part in committing the theft. The State responds that the evidence is sufficient to show Robertson was guilty as a party to the offense. From the evidence presented, the fact finder could reasonably infer Robertson intended to assist San Miguel in committing the theft. Robertson told Hemmenway, and San Miguel confirmed, that Robertson went into the grocery store with San Miguel. Robertson requested that San Miguel get Zebra Cakes and Nutty Bars. A witness saw San Miguel leave the Tom Thumb with groceries "heapingly piled" in a cart. Even though Tom Thumb places any item that will fit into a bag, none of the items in the cart were in bags. The witness saw San Miguel push the cart behind a pillar and make a telephone call. The witness then saw Robertson driving from the west through the parking lot at a fast rate of speed. Robertson ran over a curb and "whipped" into a parking space by the pillar that San Miguel was behind. Robertson sat inside the vehicle with the engine running while San Miguel loaded items from the cart to the trunk. The items included the Zebra Cakes and Nutty Bars requested by Robertson. When Hemmenway asked Robertson what was going on, Robertson responded that he did not steal anything. Robertson then gave inconsistent statements about where he parked his car and lied to Hemmenway about receiving a phone call from San Miguel. At trial, Robertson's testimony conflicted with the Tom Thumb employee's recollection of where Robertson parked and how quickly he arrived after receiving San Miguel's telephone call. Further, although Robertson claimed he did not know San Miguel had stolen anything from the grocery store, a number of loose DVDs were on the front passenger floorboard immediately beside Robertson. Hemmenway testified that, based on his experience and training, he believed Robertson was involved in the theft and was the "getaway" driver. As the fact finder in this case, it was the trial judge's role to reconcile any conflicts in the evidence. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003). The trial judge was free to accept or reject any and all of the evidence presented by either side. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Viewing the evidence under the proper standard, we conclude a rational trier of fact could find beyond a reasonable doubt that Robertson acted as a party to the theft. See Michel, 834 S.W.2d at 67. Thus, the evidence is sufficient to support the conviction. See Brooks, 323 S.W.3d at 895. We overrule Robertson's sole point of error. We affirm the trial court's judgment.