NUMBER 13-14-00096-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
PATRICK SHERMAN GUILLORY, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 51st District Court of Tom Green County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Perkes Memorandum Opinion by Justice Perkes1 Appellant Patrick Sherman Guillory appeals his conviction of theft “less than
$1,500.00”, enhanced by two prior felony convictions to a second-degree felony. See
1 Pursuant to a docket-equalization order issued by the Supreme Court of Texas, the appeal has
been transferred to this Court from the Third Court of Appeals in Austin, Texas. See TEX. GOV'T CODE ANN. § 73.001 (West, Westlaw through 2015 R.S.). TEX. PENAL CODE ANN. § 31.03(a), (b), (e)(4)(D) (West, Westlaw through 2015 R.S.). A
jury found appellant guilty and assessed punishment at twenty years’ confinement in the
Texas Department of Criminal Justice, Institutional Division. By three issues, which we
consolidate into one, appellant argues the evidence was legally insufficient to sustain a
conviction for theft. We affirm.
I. BACKGROUND
Appellant was indicted, as follows, for stealing steaks from a Lowe’s Food Basket
in San Angelo, Texas:
DEFENDANT, on or about the 20th day of May, AD. 2013, and before the making and filing of this complaint, in Tom Green County, State of Texas, did then and there intentionally and knowingly appropriate, by acquiring and otherwise exercising control over tangible property to-wit: meat, from the owner Lowe's Grocery Store, without the effective consent of the owner, and with intent to deprive the said owner of said property.
The indictment also alleged two prior felony convictions, which appellant pleaded true. 2
During the trial, Howard Miller, a certified peace officer with the San Angelo Police
Department, testified that hewas working off-duty security at Lowe’s when he observed
appellant pick up “a couple” packages of meat and begin walking quickly towards the front
of the store. As Miller approached appellant, the meat was no longer visible, but
appellant had a large bulge under his t-shirt, as if something was under his shirt. When
appellant saw Miller, he turned, went back into the store behind a Coca-Cola display, and
made movements which appeared as if he were getting rid of something.
2 During the trial, the State presented evidence of twelve prior convictions, two of which were the felony convictions used for enhancement. 2 Miller testified that appellant was close to the front doors and that when he
approached, appellant went down a different aisle. Miller explained “this was a tactic
that is commonly used. It’s a swift: conceal the meat, and get out the doors.” When
Miller confronted appellant, appellant claimed he put the meat back. Miller thereafter
noticed two packages of steaks stuck in the Coca-Cola display.
Lynn Hess, the store manager of Lowe’s Food Basket, testified that he did not
know appellant, did not recognize appellant, and did not give him permission to take
anything from the store. Hess testified that the meat had to be destroyed due to possible
contamination, as per store policy.
II. SUFFICIENCY OF EVIDENCE
Appellant contends the evidence was insufficient to prove that he had the requisite
intent to commit a theft. Specifically, appellant argues that because he abandoned the
theft, the State did not show that he committed theft. Instead, appellant claims that the
evidence shows, at most, an attempted theft. We disagree.
A. Standard of Review
“The standard for determining whether the evidence is legally sufficient to support
a conviction is ‘whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.’” Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim.
App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307 (1979); see Brooks v. State, 323
S.W.3d 893, 898–99 (Tex. Crim. App. 2010) (plurality op.). The fact-finder is the
exclusive judge of the credibility of witnesses and of the weight to be given to their
3 testimony. Anderson v. State, 322 S.W.3d 401, 405 (Tex. App.—Houston [14th Dist.]
2010, pet. ref'd) (citing Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008)).
Reconciliation of conflicts in the evidence is within the fact-finder's exclusive province.
Id. (citing Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000)). We must resolve
any inconsistencies in the testimony in favor of the verdict. Id. (citing Curry v. State, 30
S.W.3d 394, 406 (Tex. Crim. App. 2000)).
We measure the sufficiency of the evidence by the elements of the offense as
defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327
(Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997)). Such a charge is one that accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State's burden of proof or unnecessarily
restrict the State's theories of liability, and adequately describes the particular offense for
which the defendant was tried. Id.
In reviewing the sufficiency of the evidence, we look at “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.” Guevara v.
State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004) (citations omitted). Each fact need not
point directly and independently to the guilt of the appellant, as long as the cumulative
effect of all the incriminating facts are sufficient to support the conviction. Id. (citing
Alexander v. State, 740 S.W.2d 749, 758 (Tex. Crim. App. 1987) (en banc)). The
evidence is sufficient if the conclusion of guilt is warranted by the combined and
cumulative force of all the incriminating circumstances. Russell v. State, 665 S.W.2d
4 771, 776 (Tex. Crim. App. 1983).
B. Applicable Law
A person commits theft if he unlawfully appropriates property with the intent to
deprive the owner of the property. TEX. PENAL CODE ANN. § 31.03(a). A person acts
with intent when it is his conscious objective or desire to engage in the conduct or cause
the result. Id. § 6.03(a) (West, Westlaw through 2015 R.S.). Deprivation is not an
element of intent to deprive; therefore, the State need not prove actual deprivation in order
to prove intent to deprive. Rowland v. State, 744 S.W.2d 610, 612 (Tex. Crim. App.
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NUMBER 13-14-00096-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
PATRICK SHERMAN GUILLORY, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 51st District Court of Tom Green County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Perkes Memorandum Opinion by Justice Perkes1 Appellant Patrick Sherman Guillory appeals his conviction of theft “less than
$1,500.00”, enhanced by two prior felony convictions to a second-degree felony. See
1 Pursuant to a docket-equalization order issued by the Supreme Court of Texas, the appeal has
been transferred to this Court from the Third Court of Appeals in Austin, Texas. See TEX. GOV'T CODE ANN. § 73.001 (West, Westlaw through 2015 R.S.). TEX. PENAL CODE ANN. § 31.03(a), (b), (e)(4)(D) (West, Westlaw through 2015 R.S.). A
jury found appellant guilty and assessed punishment at twenty years’ confinement in the
Texas Department of Criminal Justice, Institutional Division. By three issues, which we
consolidate into one, appellant argues the evidence was legally insufficient to sustain a
conviction for theft. We affirm.
I. BACKGROUND
Appellant was indicted, as follows, for stealing steaks from a Lowe’s Food Basket
in San Angelo, Texas:
DEFENDANT, on or about the 20th day of May, AD. 2013, and before the making and filing of this complaint, in Tom Green County, State of Texas, did then and there intentionally and knowingly appropriate, by acquiring and otherwise exercising control over tangible property to-wit: meat, from the owner Lowe's Grocery Store, without the effective consent of the owner, and with intent to deprive the said owner of said property.
The indictment also alleged two prior felony convictions, which appellant pleaded true. 2
During the trial, Howard Miller, a certified peace officer with the San Angelo Police
Department, testified that hewas working off-duty security at Lowe’s when he observed
appellant pick up “a couple” packages of meat and begin walking quickly towards the front
of the store. As Miller approached appellant, the meat was no longer visible, but
appellant had a large bulge under his t-shirt, as if something was under his shirt. When
appellant saw Miller, he turned, went back into the store behind a Coca-Cola display, and
made movements which appeared as if he were getting rid of something.
2 During the trial, the State presented evidence of twelve prior convictions, two of which were the felony convictions used for enhancement. 2 Miller testified that appellant was close to the front doors and that when he
approached, appellant went down a different aisle. Miller explained “this was a tactic
that is commonly used. It’s a swift: conceal the meat, and get out the doors.” When
Miller confronted appellant, appellant claimed he put the meat back. Miller thereafter
noticed two packages of steaks stuck in the Coca-Cola display.
Lynn Hess, the store manager of Lowe’s Food Basket, testified that he did not
know appellant, did not recognize appellant, and did not give him permission to take
anything from the store. Hess testified that the meat had to be destroyed due to possible
contamination, as per store policy.
II. SUFFICIENCY OF EVIDENCE
Appellant contends the evidence was insufficient to prove that he had the requisite
intent to commit a theft. Specifically, appellant argues that because he abandoned the
theft, the State did not show that he committed theft. Instead, appellant claims that the
evidence shows, at most, an attempted theft. We disagree.
A. Standard of Review
“The standard for determining whether the evidence is legally sufficient to support
a conviction is ‘whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.’” Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim.
App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307 (1979); see Brooks v. State, 323
S.W.3d 893, 898–99 (Tex. Crim. App. 2010) (plurality op.). The fact-finder is the
exclusive judge of the credibility of witnesses and of the weight to be given to their
3 testimony. Anderson v. State, 322 S.W.3d 401, 405 (Tex. App.—Houston [14th Dist.]
2010, pet. ref'd) (citing Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008)).
Reconciliation of conflicts in the evidence is within the fact-finder's exclusive province.
Id. (citing Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000)). We must resolve
any inconsistencies in the testimony in favor of the verdict. Id. (citing Curry v. State, 30
S.W.3d 394, 406 (Tex. Crim. App. 2000)).
We measure the sufficiency of the evidence by the elements of the offense as
defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327
(Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997)). Such a charge is one that accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State's burden of proof or unnecessarily
restrict the State's theories of liability, and adequately describes the particular offense for
which the defendant was tried. Id.
In reviewing the sufficiency of the evidence, we look at “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.” Guevara v.
State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004) (citations omitted). Each fact need not
point directly and independently to the guilt of the appellant, as long as the cumulative
effect of all the incriminating facts are sufficient to support the conviction. Id. (citing
Alexander v. State, 740 S.W.2d 749, 758 (Tex. Crim. App. 1987) (en banc)). The
evidence is sufficient if the conclusion of guilt is warranted by the combined and
cumulative force of all the incriminating circumstances. Russell v. State, 665 S.W.2d
4 771, 776 (Tex. Crim. App. 1983).
B. Applicable Law
A person commits theft if he unlawfully appropriates property with the intent to
deprive the owner of the property. TEX. PENAL CODE ANN. § 31.03(a). A person acts
with intent when it is his conscious objective or desire to engage in the conduct or cause
the result. Id. § 6.03(a) (West, Westlaw through 2015 R.S.). Deprivation is not an
element of intent to deprive; therefore, the State need not prove actual deprivation in order
to prove intent to deprive. Rowland v. State, 744 S.W.2d 610, 612 (Tex. Crim. App.
1988). While evidence of actual deprivation may be evidence of intent to deprive, other
evidence may also indicate whether intent to deprive exists. Id. The intent to deprive is
determined from the words and acts of the accused. Roberson v. State, 821 S.W.2d
446, 447 (Tex. App.—Corpus Christi 1991, pet. ref’d). Criminal intent is necessary to
establish theft. See Ellis v. State, 877 S.W.2d 380, 383 (Tex. App.—Houston [1st Dist.]
1994, pet. ref'd). Therefore, as applied in this case, appellant committed the offense of
theft as authorized by the indictment if he appropriated the steaks “without the owner's
effective consent” and “with intent to deprive the owner of the property.” TEX. PENAL
CODE ANN. § 31.03(a), (b)(1).
C. Discussion
During the trial, the jury heard testimony that appellant acted in a suspicious
manner, picked up the steaks, and hid them under his pants and shirt. Appellant headed
for the store’s exit and when Miller approached, went in a different direction and
purportedly hid the steaks in a store display. The jury also heard testimony that
5 appellant, when detained, was evasive and nervous.
The record clearly reflects that appellant committed theft, rather than attempted
theft.3 The State was required to prove that appellant intended to deprive the owner of
the property. A jury could reasonably infer appellant’s intent to deprive from the manner
in which appellant concealed the steaks under his shirt or pants and attempted to leave
the store. Furthermore, the manner in which he attempted to conceal his act by hiding
the steaks in the display shows an intent to deprive. When questioned by Miller,
appellant falsely claimed that he “put the steaks back” but instead, hid them in the store
display. See Roberson, 821 S.W.2d at 448 (concluding evidence sufficient to show
intent to deprive where defendant concealed a shirt in a shopping bag, took the shopping
bag into the restroom, and removed an electronic tag from the shirt).
We conclude that the cumulative force of the evidence is sufficient to lead a rational
trier of fact to believe that appellant committed the offense of theft. See Coronado v.
State, 508 S.W.2d 373, 374 (Tex. Crim. App. 1974) (explaining that specific intent can be
inferred from the surrounding circumstances); Rowland, 744 S.W.2d at 612. We reject
appellant’s arguments that he abandoned the theft, or alternatively, that he could only
guilty of attempted theft. See Barnes v. State, 513 S.W.2d 850, 851 (Tex. Crim. App.
1974) (holding defendant who took possession and control of car by entering it and
starting motor, with his hands on steering wheel with obvious intent to drive it away, was
guilty of felony theft of car although he was interrupted before he had time to abscond
3 The Texas Code of Criminal Procedure defines the offense of criminal attempt: “[a] person
commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.” TEX. CODE CRIM. PROC. ANN. Art. 15.01(a) (West, Westlaw through 2015 R.S.). 6 with it); Hawkins v. State, 214 S.W.3d 668, 670 (Tex. App.—Waco 2007, no pet.) (holding
evidence sufficient to prove theft when appellant climbed over hardware store fence,
picked up roll of barbed wire, but dropped it when startled by employee). We overrule
appellant’s issue.
III. CONCLUSION
We affirm the trial court’s judgment.
GREGORY T. PERKES Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 29th day of October, 2015.