In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-01-00083-CR ______________________________
VICTORIA COLLIER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 202nd Judicial District Court Bowie County, Texas Trial Court No. 00F0598-202
Before Grant, Ross, and Cornelius,* JJ. Opinion by Justice Cornelius
_________________________________
*William J. Cornelius, Chief Justice, Retired, Sitting by Assignment
O P I N I O NVictoria Collier appeals her conviction for theft of property valued at more than $1,500.00 and less than $20,000.00, a state jail felony. The jury assessed Collier's punishment at eighteen months' confinement in a state jail facility. Collier challenges the legal and factual sufficiency of the evidence to support the jury's verdict. For the reasons set forth below, we affirm the trial court's judgment.
A. Factual Background
On March 23, 2000, Judith Bennett was working in the women's clothing department of the Dillard's clothing store in Texarkana. She saw three females enter her department. One, who had a baby stroller, approached one of Bennett's coworkers at the cash register for assistance. Seeing that the sales associate was distracted, the other two females stuffed apparel items into bags. Bennett saw what was happening and alerted Gary Brown, an off-duty Texarkana police officer working part-time security, that a theft was in progress. From this point forward, the State's witnesses gave conflicting testimony.
Bennett testified she saw Collier and a juvenile codefendant leave the store and jump into a getaway car. Brown testified that only one individual got in the car and that Brown exited the building before Collier, whereafter Brown made contact with, and subsequently arrested, Collier in the Dillard's parking lot.
B. Standard of Review
In our review of the legal sufficiency of the evidence, we employ the standards set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979). This requires us to view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). We must also evaluate all of the evidence in the record, both direct and circumstantial, whether admissible or inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). If there is evidence that could establish guilt beyond a reasonable doubt, we will not reverse for legal insufficiency. Cantrell v. State, 75 S.W.3d 503, 508 (Tex. App.-Texarkana 2002, pet. ref'd). When evidence both supports and conflicts with the verdict, we must assume that the fact-finder resolved the conflict in favor of the verdict. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). If we find the evidence to be legally insufficient, we must reverse the judgment and render a judgment of acquittal. Id.
In contrast, a factual sufficiency review requires us to review the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d at 7; see also Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). In determining the factual sufficiency of the evidence to establish the elements of the offense, we view all the evidence in a neutral light and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson v. State, 23 S.W.3d at 7; Clewis v. State, 922 S.W.2d at 129. We set aside the verdict for factual insufficiency if (1) the evidence in support of a vital fact, considered as standing alone, is factually too weak to support it, or (2) looking at all the evidence, some evidence supports a positive inference and some supports a negative inference, but the state's evidence is so weak as to make the finding against the great weight and preponderance of the available evidence. Goodman v. State, 66 S.W.3d 283 (Tex. Crim. App. 2001). Such a finding is described as being "manifestly unjust," or "shocks the conscience," or "clearly demonstrates bias." Id.
If we find the evidence factually insufficient, we must state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict and explain how the jury's verdict is factually insufficient. Id. Further, we can and should consider overwhelming evidence of guilt in our harm analysis. Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002). If we find factual insufficiency, we must vacate the conviction and remand the cause for a new trial. Cantrell v. State, 75 S.W.3d at 508; Jones v. State, 944 S.W.2d at 648; Clewis v. State, 922 S.W.2d at 133-35.
C. Application
In her first point of error, Collier contends the State "failed to present legally sufficient evidence to demonstrate that Defendant committed the charged offense." Collier does not contest the remaining elements of the offense-i.e., that clothing, valued at more than $1,500.00 but less than $20,000.00, and belonging to Dillard's or its employee Judith Bennett, was taken with intent to permanently deprive the owner of said property. See Tex. Pen. Code Ann. § 31.03 (Vernon Supp. 2002). The State contends there is strong evidence of Collier's guilt both as a primary actor and as a party.
"A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both." Tex. Pen. Code Ann. § 7.01(a) (Vernon 1994). A person may be held criminally responsible for another's conduct if, acting with intent to promote or assist in the commission of the offense, he or she "solicits, encourages, directs, aids, or attempts to aid the other person" in the commission of the offense. Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 1994).
The indictment in this case charged Collier as the primary actor rather than as a party. The law of parties may, however, be applied in a case where the indictment contains no such allegation. Jackson v. State, 898 S.W.2d 896, 898 (Tex. Crim. App. 1995); Montoya v. State, 810 S.W.2d 160, 165 (Tex. Crim. App. 1989).
1. Legal Sufficiency of Guilt as a Primary Actor.
Bennett testified that she saw Collier remove clothing from a rack in Dillard's while another lady with a baby stroller distracted a store employee. Collier then stuffed the clothing into a garbage bag and ran outside. Bennett followed Collier out of the store and saw Collier get inside a small black four-door car that sped off. Collier did not have the store's permission to take the clothing, and she did not pay Dillard's for it. Viewing the evidence in the light most favorable to the verdict, this evidence, standing alone, is legally sufficient to support the jury's finding that Collier took the clothing.
2. Legal Sufficiency of Guilt as a Party
Though we find Collier's guilt as a primary actor to be supported by legally sufficient evidence, out of an abundance of caution we shall examine the evidence of her guilt as a party to the offense. Brown, a nine-year veteran of the Texarkana Police Department, testified that he was working off-duty security for Dillard's on March 23, 2002. During that time, he was dispatched to the north entrance of the store regarding a theft. He went out of the store and saw a car speeding out of the parking lot. When the car returned, several females, including Collier, attempted to flag down the car in the parking lot. Brown headed toward the group. The driver of the car noticed Brown's approach, and the driver decided to speed off rather than continue toward the females. A patrol officer then pursued the vehicle. Brown then approached Collier's group and saw Collier drop a Dillard's shopping bag while she picked up her baby from a stroller. Inside the bag was a white shirt that had been taken from Dillard's. This stroller had been used by another woman to distract the Dillard's employee while other parties to the theft stole clothing and fled the store.
Danny Presley, also of the Texarkana Police Department, stopped the small black four-door car based on a dispatch notice that the car was wanted in connection with the Dillard's theft. Presley removed from the car a bag that contained clothing valued at over $1,500.00 taken from Dillard's. A representative of Dillard's verified that none of this clothing had been sold; instead, the clothing had been removed without the consent of Dillard's.
This testimony, when viewed in the light most favorable to the verdict, is legally sufficient to support Collier's conviction as a party. The evidence shows that Collier allowed another to use Collier's baby stroller in connection with the overall deception and removal of property.
3. Factual Sufficiency of Guilt
In her second point of error, Collier contends the evidence is factually insufficient to support the jury's finding that Collier took clothing from Dillard's. Collier does not dispute the State's proof as to any other element of the theft offense other than her identity as one of the thieves.
The State's primary witnesses conflict each other's testimony. Bennett testified she saw Collier stuff clothing into a bag, flee the store, and jump into the car. Brown testified that he saw Collier exit the store after he did, and Brown saw only the driver inside the vehicle. Brown also testified that he encountered Collier in the parking lot after the driver fled the scene.
Collier's contention of factual insufficiency might have merit if the State's case were limited to this conflicting testimony; she overlooks, however, other evidence linking her to the crime. She was found in possession of one of the stolen clothing items. Her baby stroller was used by a codefendant to distract the sales clerk, and the stroller was found in Collier's possession immediately following the theft. Also, the fact that Collier and the other females tried to flag down the juvenile codefendant driving the car further implicates Collier's involvement in the theft.
The applicable standard of review requires that, when there is conflicting evidence of guilt, we should not reverse unless the State's evidence is so weak as to make the verdict against the great weight and preponderance of the available evidence. Goodman v. State, 66 S.W.3d at 285. In this case, the evidence supporting the verdict is not that weak.
The judgment of the trial court is affirmed.
William J. Cornelius*
Justice
Date Submitted: August 30, 2002
Date Decided: November 8, 2002
Do Not Publish
*William J. Cornelius, Chief Justice, Retired, Sitting by Assignment
ority="63" SemiHidden="false" UnhideWhenUsed="false" Name="Medium Shading 1 Accent 4"/>
|
|
In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00181-CR
______________________________
DONALD WAYNE SPICER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 159th Judicial District Court
Angelina County, Texas
Trial Court No. 21,024
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Donald Wayne Spicer, Jr., was originally placed on deferred adjudication community supervision in Angelina County[1] in connection with the alleged offense of aggravated sexual assault of a child in 1999. See Tex. Penal Code Ann. § 22.021 (Vernon Supp. 2010). In 2007, Spicer was adjudicated guilty of the offense, but again placed on community supervision.
Now, in this proceeding, Spicers community supervision has been revoked, not based on any contention that he has committed any further offense, but for viewing pornography, cleaning the hard drive on his computer, having incidental contact with children under age seventeen, failing to pay six months of supervision fees, failing to be employed, and failing to attend counseling one month. After Spicer pled true to the allegations, the trial court found the allegations true and sentenced Spicer to ten years incarceration. Spicer appeals that revocation.
Spicers attorney on appeal[2] has filed a brief which discusses the record and reviews the proceedings in detail. He has set up several potential arguments and explained in detail why each fails to show a reversible error. Counsel has thus provided a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced. This meets the requirements of Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1981); and High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978).
Counsel mailed a copy of the brief to Spicer January 8, 2011, informing Spicer of his right to file a pro se response and to review the record. Counsel has also filed a motion with this Court seeking to withdraw as counsel in this appeal. Spicer has neither filed a pro se response, nor has he requested an extension of time in which to file such response.
We have determined that this appeal is wholly frivolous. We have independently reviewed the clerks record and the reporters record, and we agree that no arguable issues support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 82627 (Tex. Crim. App. 2005).
In a frivolous appeal situation, we are to determine whether the appeal is without merit and is frivolous, and if so, the appeal must be dismissed or affirmed. See Anders, 386 U.S. 738. We affirm the judgment of the trial court.[3]
Josh R. Morriss, III
Chief Justice
Date Submitted: March 21, 2011
Date Decided: March 22, 2011
Do Not Publish
[1]Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See Tex. Govt Code Ann. § 73.001 (Vernon 2005). We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue. See Tex. R. App. P. 41.3.
[2]In this proceeding, Spicer was represented by different appointed counsel at trial and on appeal.
[3]Since we agree this case presents no reversible error, we also, in accordance with Anders, grant counsels request to withdraw from further representation of appellant in this case. No substitute counsel will be appointed. Should appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, appellant must either retain an attorney to file a petition for discretionary review or appellant must file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing that was overruled by this Court. See Tex. R. App. P. 68.2. Any petition for discretionary review must be filed with this Court, after which it will be forwarded to the Texas Court of Criminal Appeals along with the rest of the filings in this case. See Tex. R. App. P. 68.3. Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 68.4.