Armstrong, Joshua Paul v. State

• Court: Court of Appeals of Texas
• Decided: May 19, 2005
• Docket: 14-04-00306-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed May 19, 2005

Affirmed and Memorandum Opinion filed May 19, 2005.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-00306-CR

JOSHUA PAUL ARMSTRONG, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law No. 2 and Probate Court

Brazoria County, Texas

Trial Court Cause No. 128,929

M E M O R A N D U M   O P I N I O N

Appellant Joshua Paul Armstrong was convicted of attempted theft and sentenced to community supervision.  In two issues, appellant claims the evidence is legally and factually insufficient to support his conviction.  We affirm.

I.  Factual Background

With her wallet in hand, Jane Remington walked to the entrance of a Kroger store in Alvin, Texas.  As she approached the store, she noticed a young man wearing a white tee shirt and dark baseball cap and leaning against a post near the entrance.  He was the only person in the vicinity at that time.  As she passed him, nearing the entrance, Remington felt herself trip and, at the same time, felt a Atug@ at her wallet, as if someone was attempting to pull it from her grasp.  Regaining her balance, Remington glanced behind her and saw the young man running away.  Remington testified that the entrance to the store had no raised areas that might have caused her to lose her footing.  Remington entered the store and notified store personnel, who then called the police. 

Alvin Police Officer Alan Pearson responded to the call and obtained a description of the young man Remington observed.  A dispatcher informed Pearson the man was seen running toward an apartment complex adjacent to the Kroger store.  As Pearson explored the apartment complex, he observed a man fitting the description, wearing a white tee shirt and baseball cap, walking toward the complex=s swimming pool.  Pearson testified that when the man noticed the police car, he ran between two buildings and out of Pearson=s view.  Pearson pursued the man on foot and, after learning his whereabouts from a group of children, knocked on the door of appellant=s sister=s apartment. 

Appellant answered the door, dressed in a black tee shirt and a black stocking cap.  Pearson questioned appellant about the attempted theft, then took him to meet Remington and another officer for the purpose of having Remington identify him.  After meeting with the other officer and Remington, Pearson returned to the apartment and, with the permission of appellant=s sister, searched for and discovered a white tee shirt and baseball cap.  Pearson took the shirt and cap and returned to the other officer, Remington, and appellant, where he placed both items on appellant.  Remington positively identified him as the man in front of the Kroger store, and appellant was arrested.  After a bench trial, the court convicted appellant of attempted theft from a person and sentenced him to eighteen months= community supervision and a $500 fine.  This appeal followed.

II.  Issues on Appeal

In his first issue, appellant claims the evidence is legally insufficient to support his conviction because the State did not establish his specific intent to commit theft beyond a reasonable doubt.  Appellant argues in his second issue that the evidence is factually insufficient because proof of his presence at the scene of the crime coupled with flight cannot support a conviction. 

III.  Standards of Review

When reviewing the legal sufficiency of evidence, we view 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 crime beyond a reasonable doubt.  King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).  During this process, we do not reevaluate the credibility of witnesses or the weight of evidence, and we will not substitute our judgment for that of the fact-finder.  Johnson v. State, 967 S.W.2d 410, 412 (Tex. Crim. App. 1998).  We affirm the judgment if any rational trier of fact could have found the elements of the offense beyond a reasonable doubt.  McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

During a factual sufficiency review, we view the evidence neutrally, setting aside the verdict only if (1) the evidence supporting the verdict, if taken alone, is too weak to sustain the finding of guilt beyond a reasonable doubt; or (2) the contrary evidence is so strong that the State could not have met its burden of proof beyond a reasonable doubt.  Zuniga v. State, 144 S.W.3d 477, 484B85 (Tex. Crim. App. 2004).  In our review of the evidence, we must be deferential to the conclusions of the fact finder and resist intruding on the fact finder=s role as the sole judge of witness credibility and the weight to be given the evidence.  Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).  In a bench trial, the court acts as fact finder.  See Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995).  Our standards of review remain the same whether the evidence we consider is direct or circumstantial.  Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).

III.  Analysis  

A person commits the offense of theft from a person if he Aunlawfully appropriates property with intent to deprive the owner of property,@ and Athe property is stolen from the person of another.@  Tex. Pen. Code Ann. '' 31.03(a) & 31.03(e)(4)(B) (Vernon 2004).  Appropriation is unlawful if Ait is without the owner=s effective consent.@  Id. ' 31.03(b)(1).  A person commits attempted theft if, with the specific intent to commit theft, he Adoes an act amounting to more than mere preparation that tends but fails to effect the commission@ of the theft.  Id. ' 15.01(a); Maldonado v. State, 998 S.W.2d 239, 243 (Tex. Crim. App. 1999). Appellant argues the evidence is legally insufficient because the State failed to establish his specific intent to commit the theft.  

Specific intent in attempt cases need not be proven through direct evidence; rather, it may be shown by circumstantial evidence and appellant=s conduct.  Maldonado, 998 S.W.2d at 243; Inman v. State, 650 S.W.2d 417, 418 (Tex. Crim. App. 1983).  Circumstantial evidence is Adirect proof of a secondary fact which, by logical inference, demonstrates the ultimate fact to be proven.@  Taylor v. State, 684 S.W.2d 682, 684 (Tex. Crim. App. 1984).  Every fact and piece of evidence need not, however, point independently to the defendant=s guilt.  See Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001).  A conviction may rest on the cumulative strength of all incriminating circumstances.  Id.  In addition, the fact finder may also consider evidence of a defendant=s Aconsciousness of guilt@ as proof he committed the crime charged.  Torres v. State, 794 S.W.2d 596, 598 (Tex. App.CAustin 1990, no pet.).  Although appellant argues that mere presence at the crime scene and flight are insufficient to support his conviction, we conclude there is circumstantial evidence beyond his presence at and flight from the scene to support the finding that appellant attempted to steal Remington=s wallet. 

Remington testified appellant was the only person in the vicinity of the Kroger=s entrance, and that he ran away from Remington immediately after she tripped and felt someone pull on her wallet.  Remington described the man to police, and later identified appellant as that same man.  Also, Pearson testified that appellant fled after seeing Pearson searching the apartment complex.  Evidence of flight is probative of appellant=s guilt, whether it is from a crime scene, from the police, or as in this case, both.  See Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App. 1994); see also Cawley v. State, 166 Tex. Crim. 37, 40, 310 S.W.2d 340, 342 (Tex. Crim. App. 1957) (stating flight Aamounts in effect to a quasi admission of guilt of the offense charged@); Martin v. State, 151 S.W.3d 236, 245 n.8 (Tex. App.CTexarkana 2004, pet. ref=d) (noting no distinction has been made between flight from a crime scene and flight from police).  The evidence also showed that appellant changed his shirt and hat between the time Pearson first made contact with him in the complex=s parking lot and the time appellant answered the door, and that he hid the clothes he was previously wearing in a closet. 

Appellant testified that he had been to Kroger the morning the crime occurred, but was not there when Remington entered the store.  He further testified that he attempted to elude Pearson because he was under twenty-one and holding a can of beer at the time he saw Pearson.  He stated that he had changed his shirt because he spilled beer on it.  Viewing the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could find the elements of attempted theft beyond a reasonable doubt.  See McDuff, 939 S.W.2d at 614.  Appellant=s flight from both the scene of the crime and later from police, the fact that he was identified as the only person that could have pulled on Remington=s wallet, and the fact that he changed his clothes after being seen by Pearson is legally sufficient evidence to support his conviction.  Appellant=s first issue is overruled.  

Viewing the evidence neutrally, we conclude that the evidence of appellant=s guilt is not so weak that it cannot support the finding of guilt beyond a reasonable doubt, nor are we convinced the contrary evidence is so strong that the State was unable to meet its burden of proving guilt beyond a reasonable doubt.  Zuniga, 144 S.W.3d at 484B85.  Although appellant=s testimony gave reasons for his flight from Pearson and changing his clothes, the trial court was free to disbelieve this testimony and to believe the testimony of Remington and Pearson.  See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).  We hold appellant=s flight, the fact that he was the only person in the vicinity of the crime scene, and the fact that he changed his clothes after seeing police is factually sufficient evidence of his specific intent to commit theft and therefore sufficient to support his conviction.  Accordingly, we overrule appellant=s second issue, and the judgment of the trial court is affirmed.

/s/      Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed May 19, 2005.

Panel consists of Justices Edelman, Seymore, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).