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Young v. State

STATE OF TEXAS IN THE TENTH COURT OF APPEALS
Nov 22, 2017
No. 10-17-00100-CR (Tex. App. Nov. 22, 2017)

Opinion

No. 10-17-00100-CR

11-22-2017

GERRYKE YOUNG, Appellant v. THE STATE OF TEXAS, Appellee


From the 443rd District Court Ellis County, Texas
Trial Court No. 40,006CR

MEMORANDUM OPINION

In one issue, appellant, Gerryke DeShawn Young, challenges the sufficiency of the evidence supporting his conviction for organized retail theft. See TEX. PENAL CODE ANN. § 31.16(b) (West 2016). Because we conclude that the evidence is sufficient to support appellant's conviction, we affirm.

I. SUFFICIENCY OF THE EVIDENCE

In his sole issue on appeal, appellant contends that the evidence is insufficient to support his conviction for organized retail theft. Specifically, appellant argues that the evidence fails to demonstrate that he participated in a scheme to steal merchandise. Or in other words, the evidence is insufficient to prove that he was aware the merchandise he returned was stolen. We disagree.

In his brief, appellant specifically argues that:

[T]he finding of guilt must be set aside because, when weighing all the evidence both supporting the guilty finding and contrary to the guilty finding under a balancing test in a neutral light, the "great weight and preponderance" of evidence contradicts the guilty finding to the extent that the trial court's finding is clearly wrong and manifestly unjust.
This argument calls for a factual-sufficiency review, which is no longer permitted in criminal cases. See Brooks v. State, 323 S.W.3d 893, 902, 912 (Tex. Crim. App. 2010) (concluding that there is "no meaningful distinction between the Jackson v. Virginia legal sufficiency standard and the . . . factual-sufficiency standard, and these two standards have become indistinguishable" and holding the following: "As the Court with final appellate jurisdiction in this State, we decide that the Jackson v. Virginia standard is the only standard that a reviewing court should 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. All other cases to the contrary, including Clewis, are overruled"). We will therefore analyze appellant's sufficiency argument within the context of the Jackson v. Virginia standard. See id.

A. Applicable Law

In reviewing the sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). This standard enables the fact finder to draw reasonable inferences from the evidence. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. In performing our sufficiency review, we may not re-evaluate the weight and credibility of the evidence or substitute our judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); see Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000) ("We resolve inconsistencies in the testimony in favor of the verdict."). Instead, we determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict. Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007).

B. Discussion

Here, appellant was charged by indictment with the offense of organized retail theft under section 31.16(b) of the Penal Code. See TEX. PENAL CODE ANN. § 31.16(b). Specifically, the indictment alleged that appellant "did then and there intentionally conduct or facilitate an activity in which the defendant received or possessed or disposed of stolen retail merchandise, by participating in a scheme and the total value of the merchandise involved in the activity was $20,000 or more but less than $100,000." See id.

Section 31.16(b) of the Penal Code provides that:

A person commits an offense if the person intentionally conducts, promotes, or facilitates an activity in which the person receives, possesses, conceals, stores, barters, sells, or disposes of:

(1) stolen retail merchandise; or

(2) merchandise explicitly represented to the person as being stolen retail merchandise.
TEX. PENAL CODE ANN. § 31.16(b) (West 2016).

The record evidence establishes that appellant, his brother Sebron, Britanie Gibson, Jasmine Stokes, and Briauna Bradley were involved in a scheme to steal merchandise from Walmart stores. Nicholas Selby, an investigator with the Midlothian Police Department, testified that the group would switch the universal product codes ("UPC") on similar products such that an expensive product would be purchased with a UPC corresponding with a much less expensive product. The group would then return the products at a different Walmart store without a receipt and with the original, more expensive UPC code. Because the return was without a receipt, Walmart would issue the group a gift card. Greg Mitchell, a global investigator for Walmart, explained that getting the refund and getting cash on the gift card is integral to the scheme because,

Investigator Selby indicated that the group perpetrated their scheme in 206 transactions at sixty-nine different Walmart stores.

that's how you're able to monetize the scheme by getting the gift card and then the gift card can be used to get whatever you need, whether it be through you're going to buy things you're going to resell or you're going to buy household goods, you're going to buy things for yourself.

Mitchell first learned about the scheme when he received a report from a Midlothian, Texas Walmart about the possible switching of a UPC based on "some sticky residue over the UPC" of an air purifier that was returned by appellant. Mitchell opined that:

So to me, that is an indication of a possible UPC switch. And UPC switching isn't just a single singularity crime, so people don't UPC switch for just one thing. They typically do it over and over and over and over again.

The other piece to it is when I ran my report on the air purifier, there's over a hundred thousand dollars' worth of air purifiers missing out of the Dallas-Fort Worth area.

So putting two and two together, it would be something that we would want to look into.

Further investigation revealed that appellant used two different forms of identification to make at least forty returns to various Walmart stores. Mitchell testified that appellant used his Arkansas driver's license and his passport to make the returns. The usage of a passport to make a return is considered to be unusual. Moreover, with regard to the usage of multiple forms of identification, Mitchell stated the following:

So Walmart system only allows you to do so many no-receipt refunds before your ID is blocked out. I believe in this—before—we've had a new system roll out, but during this time, it was three no-receipt refunds over a 90-day period. And after you do your third no-receipt refund, you can no longer do any. And then you have to wait another 90 days until those fall off until you can do more.

So if I have multiple IDs, a driver's license, a passport, anything that has a number on it, I can use that to complete more no-receipt refunds.

Mitchell also noticed that appellant returned items on dates that were close in time but to stores that were not close geographically. Furthermore, between January 2013 and December 2014, appellant's forty returns consisted of five air purifiers, four cutlery sets, nine vacuum cleaners, four blenders, and four Braun shavers. The returns occurred at stores throughout north Texas, a couple of stores in Oklahoma, and a store in Arkansas; however, none of the returns were made at the Walmart store closest to appellant's residence. Mitchell also indicated that "when we're doing multiple returns at different stores, that's an indication of fraud." Based on his investigation, Mitchell determined that the scheme in which appellant was involved was responsible for $54,484 in losses to Walmart.

The evidence also included surveillance videos showing appellant and Sebron buying and returning items, as well as the vehicle—"a maroon Mercury Grand Marquis with dealer tag Texas 71 George 5941"—used by the group during the course of the entire scheme. Additionally, the record contained a letter from appellant to the trial judge, wherein he admitted making a mistake and asked for probation. Investigator Selby interpreted appellant's letter as "he recognizes that he's committed crimes and he's sorry for it."

Investigator Selby also mentioned that the following was found inside the maroon Mercury Grand Marquis:

We—in—in the vehicle that was owned or that was—yeah, it was registered to Sebron Young, once that search was made, we also found a number of price display stickers which are UPC symbols. We found three RoseArt glue sticks, a Texas ID card belonging to Sebron Young, a Honeywell air—Honeywell Genius air purifier, and a coffeemaker and other Walmart bags. I don't know if I mentioned the scissors.
He further noted that Walmart surveillance videos showed appellant and Sebron getting in and out of this vehicle.

Viewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have inferred from the evidence that appellant was a knowing participant in the scheme and that he intentionally conducted or facilitated an activity in which he received or possessed or disposed of stolen retail merchandise, as alleged in the indictment. See TEX. PENAL CODE ANN. § 31.16(b); see also Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Brooks, 323 S.W.3d at 895; Clayton, 235 S.W.3d at 778; Hooper, 214 S.W.3d at 13. As such, we hold that the evidence is sufficient to support appellant's conviction. See TEX. PENAL CODE ANN. § 31.16(b); see also Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Brooks, 323 S.W.3d at 895; Clayton, 235 S.W.3d at 778; Hooper, 214 S.W.3d at 13. We overrule his sole issue on appeal.

II. CONCLUSION

Based on the foregoing, we affirm the judgment of the trial court.

AL SCOGGINS

Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins
Affirmed
Opinion delivered and filed November 22, 2017
Do not publish
[CR25]


Summaries of

Young v. State

STATE OF TEXAS IN THE TENTH COURT OF APPEALS
Nov 22, 2017
No. 10-17-00100-CR (Tex. App. Nov. 22, 2017)
Case details for

Young v. State

Case Details

Full title:GERRYKE YOUNG, Appellant v. THE STATE OF TEXAS, Appellee

Court:STATE OF TEXAS IN THE TENTH COURT OF APPEALS

Date published: Nov 22, 2017

Citations

No. 10-17-00100-CR (Tex. App. Nov. 22, 2017)