Charles Gilmore v. State of Texas

Opinion filed August 7, 2008 Opinion filed August 7, 2008 In The Eleventh Court of Appeals ____________ No. 11-07-00102-CR __________ CHARLES GILMORE, Appellant V. STATE OF TEXAS, Appellee On Appeal from the 142nd District Court Midland County, Texas Trial Court Cause No. CR32162 M E M O R A N D U M  O P I N I O N Following a bench trial, the trial court convicted Charles Gilmore, appellant, of the state jail felony offense of theft by repetition. See Tex. Penal Code Ann. ' 31.03(a), (b), (e)(4)(D) (Vernon Supp. 2007). The trial court assessed punishment at two years confinement in the Texas Department of Criminal Justice, State Jail Division. We affirm. The State charged appellant with the offense of theft by repetition under Section 31.03 of the Penal Code. Section 31.03(a) provides that A[a] person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property.@ Section 31.03(b)(1) provides that A[a]ppropriation of property is unlawful if it is without the owner=s effective consent.@ The indictment alleged that, on or about January 7, 2006, appellant Adid then and there unlawfully acquire and exercise control over property, to-wit: a welder of the value of less than $1,500 dollars without the consent of Charles Sprayberry, the owner thereof, and with the intent to deprive the said owner of the said property.@ The indictment also alleged that appellant had two prior theft convictions. Appellant does not dispute that the State proved the prior convictions at trial. In a single issue, appellant challenges the legal and factual sufficiency of the evidence to support his conviction. To determine if the evidence is legally sufficient, the appellate court reviews all of the evidence in the light most favorable to the verdict and determines 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 (1979); Jackson v. State, 17 S.W.3d 664, 667 (Tex. Crim. App. 2000). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11. In a bench trial, the trial court, as the finder of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App 1992); DeBolt v. State, 604 S.W.2d 164, 167 (Tex. Crim. App. 1980); Austin v. State, 794 S.W.2d 408, 412 (Tex. App.CAustin 1990, pet. ref=d). Charles Edward Sprayberry testified that he owned Sun Valley Affordable Homes and that Sun Valley bought and sold used mobile homes. Appellant testified that he was released from federal prison in 2002 after serving time on a bank fraud conviction. Appellant said that he was paroled to Midland and that he began working with Sprayberry about six months later. Sprayberry testified that appellant moved mobile homes for him. Sprayberry owned the equipment and tools including a truck, a trailer, and hydraulic jacks that appellant used in connection with this work. Sprayberry testified that he owned a Lincoln brand welder. He testified that the welder was kept in a supply and tool room at his business. Sprayberry knew that appellant used the welder from time to time, and on occasion, Sprayberry helped appellant load the welder into a pickup. Appellant testified that he used the welder in connection with moving mobile homes. Appellant testified that, upon his release from prison, he had filed a claim for social security benefits. He also testified that, at a hearing, he had prevailed on his claim for back pay benefits. Following the hearing, appellant had been told that he would receive his back pay benefits in about a year. Appellant testified that he and Sprayberry had reached the following Adeal@: when appellant received his social security back pay, he would purchase from Sprayberry the equipment and tools including the welder that were used in connection with moving the mobile homes. Sprayberry testified that appellant could not have a bank account because of his fraud conviction. Appellant and Sprayberry arranged for appellant=s social security checks to be direct-deposited into Sprayberry=s account. Sprayberry=s bank records showed that, on November 21, 2005, appellant=s social security back pay in the amount of $39,917 was deposited into Sprayberry=s account. At the time, Sprayberry claimed that appellant owed him in excess of $41,000. Sprayberry testified that he prepared a list showing that appellant owed him $41,600 in various expenses and that appellant agreed that he owed the listed expenses. Appellant introduced into evidence a copy of this list as Defendant=s Exhibit No. 6. The list included $2,000 for Atools.@ Sprayberry testified that Atools@ referred to tools that he believed appellant had taken from him. He said that Atools@ did not include the welder because he did not think that the welder was missing at the time. He also said that the amount for Atools@ would have been higher if the welder had been included. Appellant testified that he purchased the equipment and tools including the welder that were used in connection with moving mobile homes with the proceeds of his social security back pay benefits. He said that ownership of the welder changed hands on December 2, 2005. He testified that the word Atools@ on Defendant=s Exhibit No. 6 included the welder. Appellant testified that he pawned the welder on January 7, 2006. The pawn ticket showed that appellant pawned the welder for $300. Appellant said that he had gotten the welder two weeks earlier from Sprayberry=s shop and that AMr. Lonnie@ had opened the door of the shop to let him into the shop. Lonnie Seals testified that he had worked for Sprayberry in the past. Seals said that appellant asked him to open the shop at Sprayberry=s business so that appellant could get the welder. Seals also testified that Sprayberry owned the welder. Appellant told Seals that Sprayberry had given him permission to borrow it. Seals opened the shop, and appellant and a friend loaded the welder onto a pickup. According to Seals, appellant never told him that he owned the welder. Seals said that he and Sprayberry retrieved the welder from the pawn shop. Sprayberry testified that he did not give appellant permission to take the welder and sell it or pawn it. He said that he did not know appellant had taken the welder and pawned it. Applying the above standards of review, the evidence was legally and factually sufficient to support appellant=s conviction. Sprayberry testified that he owned the welder and that he had not given appellant permission to take it and pawn it. Appellant testified that he had purchased the welder from Sprayberry. As the sole judge of the credibility of the witnesses, the trial court was free to believe Sprayberry=s testimony and to disbelieve appellant=s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). On appeal, appellant claims that his belief that he owned the welder negated the intent element of the theft offense. However, appellant told Seals that Sprayberry had given him permission to borrow the welder. Appellant=s statement to Seals that he was borrowing the welder was inconsistent with a belief by appellant that he owned the welder. The evidence was legally and factually sufficient to establish that Sprayberry owned the welder, that appellant appropriated the welder without Sprayberry=s effective consent, and that appellant unlawfully appropriated the welder with the intent to deprive Sprayberry of the welder. We overrule appellant=s issue. We affirm the judgment of the trial court. JIM R. WRIGHT CHIEF JUSTICE August 7, 2008 Do not publish. See Tex. R. App. P. 47.2(b). Panel consists of: Wright, C.J., McCall, J., and Strange, J.