Floyd Atkins v. State

• Court: Court of Appeals of Texas
• Decided: July 17, 2008
• Docket: 14-07-00051-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed July 17, 2008

Affirmed and Memorandum Opinion filed July 17, 2008.

In The

Fourteenth Court of Appeals

_______________

NO. 14-07-00051-CR

FLOYD ATKINS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 208th District Court

Harris County, Texas

Trial Court Cause No. 1060630

M E M O R A N D U M  O P I N I O N

A jury found appellant, Floyd Atkins, guilty of theft of property with a value over $20,000 and under $100,000.  After finding two enhancement paragraphs were true, the trial court sentenced appellant to thirty years= confinement.  In four issues, appellant contends the evidence is legally and factually insufficient to support the conviction.  All dispositive issues are settled in law.  Accordingly, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

Background

Atkins was accused of stealing twenty-four aluminum billets owned by Nolan Williamson, Vice President of Dressing Stevedoring and Company (ADressing@).^[1]  The billets were removed from the Port of Houston, and the police eventually found and seized them at Northside Welding in Harris County.

The Billets= Passage

In November 2005, Dressing received a shipment of aluminum billets at the Port of Houston.  The billets were unloaded and stored on City Dock 32A.  Each billet contained a pink color code and a heat number.  A gate surveillance video taken between12:06 p.m. and 2:06 p.m. on December 19, 2005 showed a Ared to maroon@ or Amaroonish . . . brown@ tractor trailer, loaded with billets leaving the Port.

Sometime in December 2005, Earl Grant and another man approached Sterling Newton, owner of Ster-Tech Welding, about cutting some aluminum billets.  Newton had known Grant who lived in the neighborhood for about ten years.  Before December 2005, Newton did not know Atkins by his actual name.  However, Newton knew Atkins as ABig Bo@ from seeing him in the neighborhood and subsequently identified Atkins=s photograph as that of the man he saw with Grant.

According to Newton, Atkins offered Newton $5,000 to cut the aluminum and presented a document he claimed to be a bill of sale for the billets.  The document listed the commodity as A24@ aluminum Abillads.@  The document also contained a ACooper/T. Smith Stevedoring@ heading and showed delivery to ACollman Trucking@ from SS AEndevor.@  It was date stamped A05 DEC 19 PM 1:06 GATE A.@

Atkins, Grant, and Asome old guy@ delivered the aluminum to Newton.  Atkins was driving the big truck, and Grant and the other man were in a pickup.  According to Newton, Atkins was Arunning the show@ with the aluminum.

Newton was unable to cut the billets himself, and the billets remained in his driveway for a week or week and a half.  While the billets were in Newton=s driveway, Atkins returned several times to determine whether Newton had finished cutting them.  Newton eventually subcontracted the work to Northside and delivered the billets there.

Charlie Marsh owned Northside Welding Supply, as well as a nearby fabrication shop and construction business.  In December 2005, Newton came to the fabrication shop and asked to have some billets cut.  When Charlie=s brother, Daniel, first saw the billets, he was concerned they might be stolen because of the configuration and number of billets.  Daniel told Newton to be sure he had a bill of sale for them, but Daniel never saw one.  According to Daniel, they succeeded in cutting two or three billets.

Sean McDaniel, son-in-law of Northside=s owners and a Northside Welding Supply employee, recalled some aluminum billets coming to the fabrication shop.  In mid-December 2005, a man McDaniel subsequently identified as Atkins came looking for his aluminum billets.  When McDaniel told Atkins that anything having to do with the aluminum was at the fabrication shop, Atkins, Ajust quoted to me, >Well, it best be down there or,= you know, >or else.=  I said, >What do you mean or else?  Is that a threat or what?= He said, >No, basically it=s a promise that I want my aluminum.=@

Linda Marsh, Charlie=s wife and co-owner of Northside Welding Supply, thought her husband had initially given Newton a price for cutting three billets.  When another truck brought the total to twenty-four, Linda did not feel comfortable cutting any more.  Additionally, a man had intimidated one of her employees at the fabrication shop.  Linda called the shop and informed her employees that, when Newton called again, she wanted to talk with him.  Newton came a little while later, and Linda told him, if he could not pick up the billets and show her a bill of sale, she intended to call the police, Abecause this is way too much stuff.@  According to Linda, Newton left and called the police.

On the day the police seized the billets, Kevin Shaw, an employee of Northside Welding Supply, saw a man he subsequently identified as Atkins talking with Newton in front of the welding supply shop.  According to Shaw, Newton called Shaw over and asked him to tell Atkins what the police were doing.  When Shaw told Atkins the police were loading the billets because they said they were stolen, Atkins did nothing.  However, according to McDaniel, on the night the police seized the billets, Atkins was Aasking about the stuff . . . was saying that Sterling [Newton] was taking it from him and we told him no, that it was down the street, that Officer Manning was down there and that the police was [sic] taking the billets.@  McDaniel and Shaw told Atkins, A>Well, if you have a bill of sale go down there. The officer=s down there, show him the bill of sale and tell him that it=s not stolen and there should be no problems.=  And he left.@

The Investigation

Shortly before the seizure of the aluminum billets, Officer Jeff Manning of the auto theft division of the Harris County Sheriff=s Department, had been investigating the theft of copper cathodes.  At one point, the copper had been delivered to Newton=s shop, and Manning questioned three men who were later found in possession of the copper and who Ahung out@ at Newton=s shop.  Manning gave them his business card and told them, if they were in contact with Newton, to instruct him to call Manning.  Newton called Manning that night, December 22, 2005, and subsequently gave a statement to police on December 27, 2005.  Newton did not mention the aluminum in that statement.

On December 30, 2005, Newton contacted Manning about the aluminum.  Initially, Manning showed Newton photographic spreads containing photographs of Earl Grant and Rodney Brooks, who was the registered owner of a truck Newton said belonged to ABig Bo.@ After Newton identified Grant=s, but not Brook=s, photo, Manning learned Atkins might be the man Newton called ABig Bo.@  He then put Atkins=s photo in a spread, and Newton identified Atkins as ABig Bo, the guy who brought me the aluminum.@

Shaw identified Atkins=s photo as that of the man who came by the welding shop asking about  the aluminum at the other shop (i.e., the fabrication shop).  McDaniel identified Atkins=s photograph as that of the man who questioned him about the aluminum pipe at the shop and who was at the welding supply shop the night the police seized the aluminum.

Newton gave Manning a pass-out slip, which Atkins previously told Newton was a Abill of sale@ to show the aluminum was not stolen.^[2]  The slip was date stamped A05 DEC 19 pm 1:06.@  The slip indicated the cargo was twenty-four aluminum Abillads.@^[3]

Manning spoke with several people who dealt with aluminum billets and eventually  spoke to Williamson.  After Manning sent Williamson photographs, the heat numbers, and the markings of the billets seized from Northside, Williamson identified the billets as belonging to his company.  The billets would have been unloaded at the port by November 23, 2005.

Manning also visited Atkins=s trucking company at 5228 Tidwell, the address Newton said he associated with the business owned by ABig Bo.@  While there, Manning spoke with Atkins and observed several tractors and trailers on the premises.  Two Peterbilt tractors had TKB Express insignia on them.  One was red; the other was brown.

Port of Houston Police Sergeant Cheryl Johnson searched the port=s pass-out slips from November 19, 2005 through December 19, 2005 and gave Manning all TKB Express slips generated during that period of time.  After reviewing the port=s logs, Manning concluded that two TKB Express trucks were at the port on December 19, 2005.  The Port of Houston police also contacted the trucking company and confirmed this information.  Johnson then obtained surveillance videos from one hour before to one hour after the time stamped on the pass-out slip Newton had given Manning.  One of the videos showed a truck  leaving with twenty-four aluminum billets.  The tractor trailer was Ared to maroon@ or Amaroonish . . . like a brown.@^[4]

Analysis

In his first and second issues, respectively, Atkins contends the evidence is legally and factually insufficient to support his conviction.  In his third and fourth issues, respectively, Atkins contends the evidence is legally and factually insufficient to support his conviction as a party to the offense.

In considering a legal-sufficiency challenge, we review all evidence in the light most favorable to the finding and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).  In examining a factual-sufficiency challenge, we view all evidence in a neutral light and set aside the verdict Aonly if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.@ Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997) (quoting Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996)).  Before we may reverse for factual insufficiency, we must first conclude with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury=s verdict.  Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006).  As the court of criminal appeals recently explained:

Both legal and factual sufficiency standards require the reviewing court to consider all of the evidence.  AThe difference between the two standards is that the former requires the reviewing court to defer to the jury=s credibility and weight determinations while the latter permits the reviewing court to substitute its judgment for the jury=s on these questions >albeit to a very limited degree.=@ In reality, a Afactual‑sufficiency review is >barely distinguishable= from a Jackson v. Virginia legal sufficiency review.@

Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007) (citations omitted).

A person commits the offense of theft Aif he unlawfully appropriates property with intent to deprive the owner of property.@  Tex. Pen. Code Ann. ' 31.03(a) (Vernon Supp. 2007).  AAppropriation of property is unlawful if:  (1) it is without the owner=s effective consent; [or] (2) the property is stolen and the actor appropriates the property knowing it was stolen by another . . . .@  Id. ' 31.03(b)(1), (2).  Atkins argues the evidence is insufficient to establish he committed the offense, either by his own conduct or as a party.

Although it is axiomatic the State must prove beyond a reasonable doubt that the accused is the person who committed the charged crime, the State may prove identity with direct or circumstantial evidence.  Smith v. State, 56 S.W.3d 739, 744 (Tex. App.C Houston [14th Dist.] 2001, pet. ref=d).  We do not subject proof of identity through circumstantial evidence to a more rigorous standard than we do proof by direct evidence.  Id.

AA 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 2003).  A person is criminally responsible for an offense committed by another=s conduct if Aacting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. . . .@  Id. ' 7.02(a)(2).

A>In determining whether the accused participated as a party, the court may look to events occurring before, during and after the commission of the offense, and may rely on actions of the defendant which show an understanding and common design to do the prohibited act.=@  Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994) (quoting Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985)).  The State may prove party status with circumstantial evidence.  Id.

Mere presence at the scene of the offense does not establish guilt as a party to the offense.  Porter v. State, 634 S.W.2d 846, 849 (Tex. Crim. App. [Panel Op.] 1982).  Presence at the scene, however, is a circumstance tending to prove guilt which, when combined with other facts, may suffice to show that the accused was a participant.  Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App. [Panel Op.] 1979).  However, although flight alone will not support a Aguilty@ verdict, evidence of flight from the scene of the offense is a circumstance from which an inference of guilt may be drawn.  Id.  Finally, evidence that a defendant had the personal, unexplained possession of recently stolen property is sufficient to raise a presumption or inference of guilt and to sustain his conviction for theft of that property.  Joseph v. State, 3 S.W.3d 627, 641 (Tex. App.CHouston [14th Dist.] 1999, no pet.).  A defendant=s actions, including his verbal assertions of exclusive ownership or right to stolen property, may show a conscious assertion of the right to the stolen property, thus proving exclusive personal possession of that property.   See Louis v. State, 159 S.W.3d 236, 247 (Tex. App.CBeaumont 2005, pet. ref=d).

The following evidence supports the conclusion that Atkins, by his own conduct, or by assisting Grant, or both,^[5] committed the theft of the aluminum billets:

$                   (a) Williamson=s testimony that someone who knew the Port of Houston system would be able to load a flatbed truck with material and drive it out of the port; and (b) Atkins=s sister=s testimony that Atkins knew how to get in and out of the port;

$                   (a) the surveillance video of the port gate showing a Ared to maroon@ or Amaroonish . . . brown@ truck with aluminum billets leaving December 19, 2005; (b) evidence that December 19, 2005 was the date stamped on the pass-out slip Atkins told Newton was a bill of sale for the billets; and (c) Manning=s observation of red and brown tractor trailer trucks at Atkins=s business after the theft;

$                   (a) Manning=s testimony that he observed two trucks, one red and one brown, with TKB Express insignia at Atkins=s business; and (b) Johnson=s testimony that invoices from TKB Express showed two trucks at the port on December 19, 2005;

$                   (a) Newton=s testimony that (i) a person he later identified as Atkins offered him $5,000 to cut the aluminum, (ii) Atkins returned several times to see whether Newton had finished cutting it, and (iii) after the billets sat outside his shop for a few days, Newton subcontracted with Northside Welding to cut the billets and took them to Northside; and (b) Williamson=s testimony that, based on color codes and heat markings, the billets at Northside were billets missing from his inventory;

$                   (a) Newton=s identification of Grant as the person with Atkins when Atkins brought Newton the billets; and (b) Grant=s plea of Aguilty@ to the theft of the billets;

$                   Newton=s testimony that Atkins had the aluminum and Newton was having it cut for Atkins; and

$                   McDaniel=s testimony that (a) a man he identified as Atkins asked where his aluminum was and, after being told, said, Ait best be down there or . . . else,@ (b) Atkins had claimed ownership of the aluminum, and (c) when McDaniel told Atkins to show the bill of sale to the officers seizing the aluminum, Atkins left.

We conclude this evidence is legally sufficient to establish Atkins committed the offense of theft of the aluminum billets, either acting alone or in combination with Grant.

Atkins, however, argues that Newton was the only witness to link him to the stolen billets and that Newton=s status as a parolee, the timing of Newton=s statement to Manning, and contradictions in  Newton=s  actions and testimony undercut his credibility as a witness.  Atkins also points to Shaw=s explanation of Atkins=s Ait best be down there@ statement and to Shaw=s testimony that, despite seeing Atkins speaking to Newton the night the police seized the billets, he never overheard Atkins claim ownership of the billets.  Atkins argues that his mere presence at the scene is weak evidence of any alleged intent to steal or possess the aluminum and contends the investigation is incomplete.  Finally, Atkins directs this court=s attention to Grant=s testimony that Atkins had no involvement in the incident.^[6]

Atkins=s complaints are directed at the jury=s weight and credibility determinations; and, in conducting a legal-sufficiency analysis, we defer to those determinations.  See Rollerson,  227 S.W.3d at 724.  Additionally, we may substitute our judgment for that of the jury only to a very limited degree when we conduct a factual-sufficiency review.  See id.  Given what we consider to be overwhelming circumstantial evidence linking Atkins to theft of the aluminum, we decline to overturn the jury=s verdict in this case.

We conclude the evidence is legally and factually sufficient to support the jury=s verdict.  Therefore, we overrule appellant=s four issues.

The judgment of the trial court is affirmed.

/s/        Charles Seymore

Justice

Judgment rendered and Memorandum Opinion filed July 17, 2008.

Panel consists of Justices Fowler, Frost, and Seymore.

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

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^[1]  A billet is a piece of metal, such as aluminum, in raw form, after scrap metal has been melted and ingredients added.  The billets in the present case were twenty to twenty-five feet long, and their total weight would have been around forty thousand pounds.

^[2]  A pass-out slip, or gate slip, is issued by the entity allowing cargo to be removed from the port by a specific transportation or trucking company or individual.  The pass-out slip contains the name of the company handling the cargo and a brief description of the cargo that should be on the truck when it leaves the port.

^[3] The pass-out slip was on a Cooper/T. Smith Stevedoring Company form.  Endeavor, the ship indicated on the pass-out slip, had been in port September 22, 2004 and had docked fourteen miles from where the aluminum billets were taken.  AEndeavor@ and Abillets@ were misspelled.  Williamson testified the only thing he knew was real on the pass-out slip was the date stamp.

^[4] From the video, the officers could not identify Atkins as the driver of truck or determine whether the TKB insignia was on the truck.

^[5]  The jury was charged in the disjunctive on the State=s two theories of how Atkins committed the theft, i.e., by his own conduct or by assisting Earl Grant and/or other persons.

^[6]  On appeal, Atkins presents the theory that Newton was the primary actor in the theft of the aluminum and implicated Atkins to avoid his own prosecution.  At trial, Atkins contended the other two key actors were McDaniel and Shaw.