Troykisian Anton Wingate v. State

• Court: Court of Appeals of Texas
• Decided: February 27, 2007
• Docket: 14-06-00110-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed February 27, 2007

Affirmed and Memorandum Opinion filed February 27, 2007.

In The

Fourteenth Court of Appeals

____________

NO. 14-06-00110-CR

TROYKISIAN ANTON WINGATE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 1035659

M E M O R A N D U M   O P I N I O N

Appellant, Troykisian Anton Wingate, was charged by indictment with unlawful labeling.^[1]  The indictment also contained two enhancement paragraphs that alleged previous convictions for possession of a controlled substance.  A jury convicted appellant as charged in the indictment.  Appellant entered a plea of Atrue@ to the enhancement allegations, and he was subsequently sentenced to confinement in the state penitentiary for a term of three years and a fine of $2,000.  In his sole point of error, appellant contends the evidence is legally insufficient to support the jury=s verdict.  We affirm.

On July 29, 2005, Houston police officer Jimmy Williams was patrolling the area around the 3400 block of West Little York.  He decided to check a convenience store where numerous complaints had been made by the manager about loitering and trespassing.  Three men caught Williams= attention as he drove up.  Appellant was seated on the sidewalk outside the store, surrounded by numerous, hand-labeled, compact disc recordings, Aas if to sell them.@  Williams had observed appellant at the store before, and had warned him he could not hang out there and could not sell CDs there.  Tired of appellant=s ignoring his warnings, Williams arrested him.  Williams gathered all the CDs.  The CDs were not ones produced with a commercial label.  Rather, the CDs were recordable discs with handwritten labels showing only the names of different popular performers.  The labels did not include the name and the address of the manufacturer.

Appellant contends the evidence is legally insufficient because Williams admitted he never saw appellant sell a CD on the day of his arrest.  Moreover, appellant claims there is little or no circumstantial evidence of sales because Williams acknowledged he did not see a price list, signs, or receipts of sale.

In assessing the legal sufficiency of the evidence, the reviewing court considers all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Threadgill v. State, 146 S.W.3d 654, 663 (Tex. Crim. App. 2004) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).  The Jackson standard of review A>gives full play to the jury's responsibility fairly to resolve conflicts in the evidence, to weigh the evidence, and to draw reasonable inferences from the evidence.=@ Id. (quoting Garcia v. State, 57 S.W.3d 436, 441 (Tex. Crim. App. 2001)).  The jury is the exclusive judge of the credibility of witnesses and of the weight to be given testimony, and it is also the exclusive province of the jury to reconcile conflicts in the evidence.  Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).  When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party.  Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).  Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm.  McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

Section 35.94 of the Business and Commerce Code provides:

a) A person commits an offense if, for commercial advantage or private financial gain, the person knowingly advertises, offers for sale, sells, rents, or transports, causes the sale, resale, rental, or transportation of, or possesses for any of these purposes a recording if the outside cover, box, or jacket of the recording does not clearly and conspicuously disclose the actual name and address of the manufacturer and the name of the performer or group.

Tex. Bus. & Com. Code Ann. ' 35.94(a) (Vernon 2002).  As charged in the indictment, the State was required to prove appellant either sold the CDs at issue or possessed them for sale.

While the State offered no direct evidence that appellant was selling the CDs at the time of his arrest, it offered substantial circumstantial evidence that he possessed them for that purpose at the time of his arrest.  See Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004) (holding intent may be inferred from circumstantial evidence such as acts, words, and the conduct of the actor).

Appellant was in possession of 126 CDs which were spread on the sidewalk in what appeared to be a display.  Each CD was contained in a blank jacket or Asleeve@ that was hand-labeled with a marker.  The label contained only the name of a popular performer, and did not include the actual name and address of the manufacturer as required by the statute.  When appellant was arrested, he spontaneously said to Williams Athat he sells CDs instead of crack.@  Williams further testified he had seen appellant make a sales transaction on at least one other occasion, at which time he warned appellant about selling CDs outside the convenience store.

The sole defense witness, Zachary Payne, testified he believed appellant had been warned before by law enforcement.  Payne explained that he and appellant Apromoted@ the CDs in question by giving them away for free to whomever wanted them.  Payne admitted that they had been doing this for about a year.  Payne stated they promoted the CDs at the convenience store approximately four times a week, and twice a week at a local pool hall.  Payne and appellant were friends with the rappers who created the CDs.  Payne stated their rapper friends formed Big Body Click Entertainment.  Big Body Click rappers would take popular performers= songs, change them, and add their own rap.^[2]  Payne testified he and appellant did these promotions and gave the CDs away so Ahopefully they land in the right person=s hands so we can get a break one day, make it in the entertainment industry.@  They hoped to get a break, make their rapper friends rich, and enjoy the trickle down benefits.  Payne further testified on cross-examination:

Q.   What does Big Body Click do once they=ve altered this prerecorded music?

A.   They sell it and they give us something to sell it and basically that=s it.

Q.   So, they give y=all some to sell.  What do you do when you get the stuff from them?

A.   Issue it out.

Q.   What does that mean?

A.   Pass it out.

When asked if Big Body Click had an agreement with Missy Elliott or Ludacris to use their licensed music, Payne replied AI=m not sure.  Not to my knowledge.@

After reviewing the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Accordingly, we overrule appellant=s sole point of error and affirm the judgment of the trial court.

/s/      J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed February 27, 2007.

Panel consists of Justices Yates, Anderson, and Hudson.

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

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^[1]  Tex. Bus. & Com. Code Ann. ' 35.94 (Vernon 2002).

^[2]  After Payne testified the CDs were recordings of their friends, Payne admitted he and appellant were not friends with Missy Elliott, Ludacris, B.B. King, or Mariah Carey, whose names were hand-labeled on the sleeves and who were among the performers= music used by Big Body Click Entertainment.