Antonio Tyrone Tate v. State

• Court: Court of Appeals of Texas
• Decided: January 30, 2004
• Docket: 11-03-00122-CR
• Status: Published

Opinion

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Antonio Tyrone Tate

Appellant

Vs.                   No. 11-03-00122-CR B Appeal from Dallas County

State of Texas

Appellee

The trial court convicted Antonio Tyrone Tate of the offense of theft of a motor vehicle valued at $20,000.00 or more but less than $100,000.00.  The trial court assessed his punishment at confinement for 10 years.  We affirm.

                                                            Issues Raised on Appeal

In two issues, appellant contends that the evidence is both legally and factually insufficient to support the conviction.  Appellant argues that the conviction cannot stand because there was no evidence that anyone saw him steal the vehicle and because the only evidence the State had linking him to the stolen vehicle was fingerprint evidence.

                                                               Standard of Review

 In order to determine if the evidence is legally sufficient, we must review all of the 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.  Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000).  In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak as to render the conviction clearly wrong and manifestly unjust or whether the evidence supporting guilt, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust.  Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Goodman v. State, 66 S.W.3d 283 (Tex.Cr.App.2001); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App.2000); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996).  We review the fact finder=s weighing of the evidence and cannot substitute our judgment for that of the fact finder.  Cain v. State, supra; Clewis v. State, supra.  Due deference must be given to the fact finder=s determination, particularly concerning the weight and credibility of the evidence.  Johnson v. State, supra; Jones v. State, 944 S.W.2d 642 (Tex.Cr.App.1996), cert. den=d, 522 U.S. 832 (1997).  The trial court, as the finder of fact, was the sole judge of the weight and credibility of the testimony.  Adelman v. State, 828 S.W.2d 418 (Tex.Cr.App.1992); DeBolt v. State, 604 S.W.2d 164 (Tex.Cr.App.1980); Austin v. State, 794 S.W.2d 408 (Tex.App. - Austin 1990, pet=n ref=d). 

                                                         Evidence Presented At Trial

Susan Embree testified that she took her 1996 Chevrolet Impala SS car to Richardson Import Auto Center (the shop) in Richardson to have the fuel pump replaced and to have a few other repairs made.  The shop had to keep her car overnight.  At midnight, a police detective called and notified her that her car had been stolen from the shop.  Her car was recovered in Oklahoma, and she picked it up about a week after the theft. 

Embree testified that the car was a Acollectible@ and that, while she drove it as her means of transportation, she entered it in car shows.  She purchased the car in 1998 for $23,813.23.  At the time of the theft in 1999, her car was worth over $20,000.00. 

The car was not in Abad, bad shape@ when she recovered it in Oklahoma.  However, the car had Abroke down@ on the side of the road because it was stolen before the fuel pump had been replaced.  She had to have her car repainted because one of the bay garage doors had fallen on the car and scraped the paint.  Also, the shattered glass from the bay door had chipped the paint. 

Embree testified that she did not know appellant.  She also stated that she had not given appellant or anyone else permission to remove her car from the shop. 

Adolph Glatz testified that he owned the Richardson Import Auto Center.  In his opinion, Embree=s car was worth over $20,000.00 in 1999.  Glatz knew appellant.  Appellant would come into Glatz=s shop, walk through, and look around.  Appellant had even test driven a  Buick Grand National car about a month or two before the theft.  Glatz further testified that appellant was last seen in the shop about a month prior to the theft.

Shortly after 11:00 p.m., Glatz received a call that the alarm at his shop had been triggered. When he arrived, four or five  police cars were at the shop.  The electric meter had been removed; there was no power to the shop; and all but one of the eight bay doors were shut.  Embree=s car had been driven out of the shop through the one open bay door. 

Another bay door had the windows broken out.  Glatz testified that someone had climbed into the shop through the broken window and held onto a Buick Grand National car as he climbed in.   A hand print was recovered from the Grand National.  Glatz stated that the cars for sale in his shop were washed once or twice a week and that all the Grand Nationals had A[d]efinitely@ been washed since appellant had test driven one. 

Lonnett Kendall, a criminalist with the Richardson Police Department, was called to the shop that night.  She recovered a latent palm print from a black 1987 Buick Grand National parked by the bay door with the broken windows.  It appeared to Kendall that someone had come through the window and balanced themselves on the car as they climbed into the building.  The car was covered all over with a layer of dust except for the right rear panel where the palm print was found.  Kendall  identified the palm print as appellant=s and testified that the print was less than 24 - 36 hours old.

Embree=s car was found abandoned on the side of U.S. Highway 69, 15 miles North of Atoka, Oklahoma.   The car was not functioning, and its metal car  tag had been covered with a paper tag.  Several items were seized in an inventory search, including a piece of paper with a fingerprint that was later identified as appellant=s print. 

                                                          Sufficiency of the Evidence

We find that the evidence is both legally and factually sufficient.  The evidence was uncontroverted that appellant had test driven a Grand National at least a month before the theft, that all the cars for sale at the shop were washed once or twice a week, that appellant=s palm print recovered from a Grand National was less than 36 hours old, that Embree brought her car into the shop the day of the theft, and that appellant=s fingerprint was found on a piece of paper in Embree=s car when the car was recovered in Oklahoma.  The record does not support appellant=s arguments that his print on the Grand National could have been from his test drive more than a month before the theft or that his print on the piece of paper inside Embree=s car could have been from one of his prior visits to the shop.

A rational fact finder could have found all of the elements of theft^[1] beyond a reasonable doubt; therefore, the evidence is legally sufficient.  Likewise, the evidence supporting guilt is neither so weak as to render the conviction clearly wrong and manifestly unjust nor so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust.  The evidence is, therefore, factually sufficient to support the conviction.   Both issues are overruled.

                                                               This Court=s Holding

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

January 30, 2004

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

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^[1]TEX. PENAL CODE ANN. ' 31.02 (Vernon  2004) defines the offense of theft.