Robert L. Clark, Sr. v. the State of Texas ( 2021 )

NO. 12-20-00193-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
ROBERT L. CLARK, SR., § APPEAL FROM THE
APPELLANT
V. § COUNTY COURT AT LAW
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Robert L. Clark, Sr. appeals his conviction for theft of property with a value of between
fifty and five hundred dollars. In three issues, he argues that the evidence is insufficient to
support the trial court’s judgment and that the trial court’s assessment of costs for attorney’s fees
and a “time payment” fee are improper. We modify and affirm as modified.
BACKGROUND
Appellant was charged by indictment with theft of property with a value of between fifty
and five hundred dollars and pleaded “not guilty.” The matter proceeded to a jury trial. A jury
found Appellant “guilty” as charged and, ultimately, assessed his punishment at confinement for
ninety days. The trial court sentenced Appellant accordingly, and this appeal followed. 1
1
Appellant timely filed his notice of appeal on July 29, 2014. On July 29, 2014, the docketing statement
was due to be filed. See TEX. R. APP. P. 32.2. We did not receive the notice of appeal until August 11, 2020. On
August 11, this court notified Appellant that a docketing statement was to be filed and gave him until August 24, to
file it. Thereafter, when no docketing statement was filed, this court again notified Appellant on September 25, that
the docketing statement was past due and gave him until October 5, to file it. On October 7, this Court remanded the
case to the trial court so that it could make findings regarding Appellant’s indigent status and his desire for
appointment of counsel.
EVIDENTIARY SUFFICIENCY
In his first issue, Appellant argues that the evidence is legally insufficient to support his
conviction for theft. Specifically, Appellant contends that there is no evidence that he acted as a
party to the commission of the offense by his wife.
Standard of Review and Applicable Law
The Jackson v. Virginia 2 legal sufficiency standard is the only standard that a reviewing
court should apply in determining whether the evidence is sufficient to support each element of a
criminal offense that the state is required to prove beyond a reasonable doubt. See Brooks v.
State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Legal sufficiency is the constitutional
minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal
conviction. See Jackson, 443 U.S. at 315–16, 99 S. Ct. at 2786–87; see also Escobedo v. State, 6
S.W.3d 1, 6 (Tex. App.–San Antonio 1999, pet. ref’d). The standard for reviewing a legal
sufficiency challenge is whether any rational trier of fact could have found the essential elements
of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; see
also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined
in the light most favorable to the verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789;
Johnson, 871 S.W.2d at 186. A jury is free to believe all or any part of a witness’s testimony or
disbelieve all or any part of that testimony. See Lee v. State, 176 S.W.3d 452, 458 (Tex. App.–
Houston [1st Dist.] 2004), aff’d, 206 S.W.3d 620 (Tex. Crim. App. 2006). A successful legal
sufficiency challenge will result in rendition of an acquittal by the reviewing court. See Tibbs v.
Florida, 457 U.S. 31, 41–42, 102 S. Ct. 2211, 2217–18, 72 L. Ed. 2d 652 (1982).
Circumstantial evidence is as probative as direct evidence in establishing guilt, and
circumstantial evidence alone can be sufficient to establish guilt. Rodriguez v. State, 521 S.W.3d
822, 827 (Tex. App.–Houston [1st Dist.] 2017, no pet.) (citing Sorrells v. State, 343 S.W.3d 152,
155 (Tex. Crim. App. 2011)). Each fact need not point directly and independently to the guilt of
the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to
support the conviction. See Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Juries
are permitted to draw multiple reasonable inferences as long as each inference is supported by the
evidence presented at trial. Id. at 15. Juries are not permitted to come to conclusions based on
mere speculation or factually unsupported inferences or presumptions. Id. An inference is a
2
443 U.S. 307, 315–16, 99 S. Ct. 2781, 2786–87, 61 L. Ed. 2d 560 (1979).
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conclusion reached by considering other facts and deducing a logical consequence from them,
while speculation is mere theorizing or guessing about the possible meaning of facts and evidence
presented. Id. at 16.
The sufficiency of the evidence is measured against the offense as defined by a
hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). Such a charge would include 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 is tried.” Id.Discussion
In order to prove that Appellant was “guilty” as charged as a party to theft, the State was
required to demonstrate that Appellant unlawfully appropriated the property with the intent to
deprive the owner of the property. See TEX. PENAL CODE ANN. § 31.03(a) (West 2019). An
“owner” is a person who “has title to the property, possession of the property, whether lawful or
not, or a greater right to possession of the property than the actor.” Id. § 1.07(a)(35) (West 2021).
“Possession” is defined as “actual care, custody, control, or management.” Id. § 1.07(a)(39).
A person is criminally responsible as a party to an offense if the offense is committed by
his conduct or by the conduct of another for which he is criminally responsible. Id. § 7.01(a)
(West 2021). A person is criminally responsible for an offense committed by the conduct of
another if, acting 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) (West 2021). We may look to events occurring before, during, and after the
commission of the offense when determining whether a person participated as a party, and we
may rely on actions of the defendant that show an understanding and common design to do the
prohibited act. Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994) (op. on reh’g);
Jackson v. State, 487 S.W.3d 648, 655 (Tex. App.–Texarkana 2016, pet. ref’d). Circumstantial
evidence may be sufficient to show that a person is a party to an offense. Beardsley v. State, 738
S.W.2d 681, 684 (Tex. Crim. App. 1987); Davison v. State, 602 S.W.3d 625, 633 (Tex. App.–
Texarkana 2020, pet. ref’d).
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Discussion
In the instant case, Jessica Gardner testified that, as of the date in question, she had been a
Wal-Mart asset protection/loss prevention employee for three years. Gardner described her job
duties to include walking around the store looking for suspicious activity, such as “people[’s]
stealing stuff by putting it in their purses and walking out the door with it, or [going] in the self-
checkout and not ringing up everything that they have placed in the bags.” Gardner identified
Appellant as the person she detained along with his wife on January 29, 2014, for “stealing
merchandise” at the Wal-Mart located on Highway 64 in Tyler, Smith County, Texas. According
to Gardner, she first noticed the couple in the apparel department because Appellant’s wife
selected items while he “just kept looking around like he was watching out for her” and they both
were behaving nervously. Gardner continued to observe the couple as they made their way
through the store and placed twelve items in their cart before heading to the “self-checkout” aisle.
Gardner stated that she watched Appellant scan “the three food items that they did pay for,” and
then, he and his wife changed positions so that Appellant was handing his wife the remaining
“clothing items and shoes” from their cart, which she did not even attempt to scan before placing
the items in bags. 3 Gardner further stated that the couple did not have permission to take these
items without scanning or paying for them. Gardner testified that after the couple paid for the
items they did scan, they left the self-checkout area with all the items, both those purchased as
well as those potentially purloined, stood in front of the in-store McDonald’s restaurant for a
moment, and then began to exit the store. According to Gardner, she stopped the couple in the
vestibule as they were exiting the store and asked them to give her the merchandise for which they
did not pay. In response, Appellant claimed to have “accidently” failed to scan the items or to
have forgotten to do so. Gardner stated that the items Appellant did scan cost him less than $10.
Thereafter, Gardner contacted the police, and Appellant and his wife both were arrested for theft.
On cross examination, Gardner testified that there was no video recording of the incident
because the camera for that self-checkout station was inoperable at that time. She also conceded
that the stolen items were primarily women’s items of clothing and that Appellant’s wife was
positioned at the scanner when she placed the items in the bags without scanning them. She
further testified that Appellant offered to pay for the items that he claimed accidently to have
3
The jury was shown a picture of the items the couple failed to scan, which included, “three dresses, a
sweater, some cherry mixed fruit cups, two pairs of shoes, and a pair of socks.” The value of the unscanned items
was $143.53 excluding sales tax.
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failed to scan. On redirect examination, the State elicited testimony from Gardner that Appellant
appeared to be acting as a “lookout” while the two were shopping in the apparel department.
Moreover, Gardner testified that Appellant, while standing next to his wife at the scanner,
“actually [was] bypassing the scanner” as he handed the items to his wife to be bagged. Lastly,
she reiterated that Appellant paid less than ten dollars for a bag containing almost one hundred
fifty dollars worth of apparel.
Based on our review of the record, there was ample evidence to permit a jury to find
beyond a reasonable doubt that Appellant committed theft as a party to the offense. Such
evidence includes testimony that (1) Appellant was observed as appearing to act as a “lookout”
while his wife selected items, (2) Appellant switched places with his wife, while handing her
items in such a way as to bypass the scanner, which items she placed in grocery bags, (3)
Appellant paid less than ten dollars for items valued at nearly one hundred fifty dollars, and (4)
Appellant claimed accidentally to have failed to scan a comparatively large number of items
compared to the few items he did scan. Because a jury reasonably could find beyond a reasonable
doubt that Appellant acted with intent either to aid or attempt to aid his wife to commit theft, we
hold that the evidence is legally sufficient to support the finding that Appellant is criminally
responsible as a party to that theft. See TEX. PENAL CODE ANN. §§ 7.01(a), 7.02(a)(2).
Appellant’s first issue is overruled.
COURT COSTS - ATTORNEY’S FEES
In his second issue, Appellant argues that the trial court erred in assessing attorney’s fees
against him as court costs because the evidence is legally insufficient to support the costs
assessed.
Standard of Review and Applicable Law
A challenge to the sufficiency of the evidence supporting court costs is reviewable on
direct appeal in a criminal case. See Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App.
2011). We measure sufficiency by reviewing the record in the light most favorable to the award.
See Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010); Cardenas v. State, 403 S.W.3d
377, 388 (Tex.–Houston [1st Dist.] 2013, no pet.). Requiring a convicted defendant to pay court
costs does not alter the range of punishment, is authorized by statute, and generally is not
conditioned on a defendant’s ability to pay. See TEX. CODE CRIM. PROC. ANN. art. 42.16 (West
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2018); Armstrong, 340 S.W.3d at 767; see also Johnson v. State, 405 S.W.3d 350, 354 (Tex.
App.–Tyler 2013, no pet.).
Some court costs, such as attorney’s fees, may not be assessed against a defendant if he
was found indigent because his indigence is presumed to continue throughout the remainder of the
proceedings “unless a material change in [his] financial circumstances occurs.” See TEX. CODE
CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2020). If a trial court does not make a determination
that a defendant’s financial circumstances materially changed, which determination also is
supported by some factual basis in the record, the evidence will be insufficient to impose
attorney’s fees as court costs. See TEX. CODE CRIM. PROC. ANN. arts. 26.04(p), 26.05(g) (West
Supp. 2020); Mayer, 309 S.W.3d at 553; Wolfe v. State, 377 S.W.3d 141, 144, 146 (Tex. App.–
Amarillo 2012, no pet.).
In the instant case, the trial court’s judgment reflects that it ordered Appellant to pay court
costs. A certified bill of costs appears in the record itemizing the balance of the court costs
imposed, which total $874.00. That bill of costs includes an item listed as “attorney’s fees” in the
amount of $600.00.
The State concedes that the attorney’s fees set forth in the bill of costs is improper. We
agree. Although the record does not contain an affidavit or other explicit finding of indigency
made at the outset of Appellant’s trial proceedings, it does indicate that Appellant’s trial attorney
was appointed by the trial court. Moreover, Appellant’s attorney on appeal was appointed by the
trial court after it made a finding that Appellant is indigent. There is no evidence in the record to
rebut the presumption that Appellant’s indigence continued throughout the proceedings in the trial
court, as well as during the pendency of this appeal. See TEX. CODE CRIM. PROC. ANN. art.
26.04(p); Wolfe, 377 S.W.3d at 144. As a result, we hold that the evidence is insufficient to
support the imposition of attorney’s fees as court costs. See TEX. CODE CRIM. PROC. ANN. art.
26.04(p), 26.05(g); Mayer, 309 S.W.3d at 553; Wolfe, 377 S.W.3d at 146. Appellant’s second
issue is sustained.
TIME PAYMENT FEE
In his third issue, Appellant argues that costs attributable to the time payment fee, as set
forth in the trial court’s bill of costs, is unconstitutional.
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As set forth previously, the trial court’s judgment sets forth that Appellant is obligated to
pay court costs in the amount of $874.00. The bill of costs itemizes the court costs imposed,
which total $874.00. The bill of costs also includes a $25.00 “time payment” fee. Furthermore, it
includes a statement that if the balance of court costs is paid “within thirty days from the court
date of 7/22/14,” the time payment fee of $25.00 will be deducted. But see TEX. LOC. GOV’T
CODE ANN. § 133.103(c), redesignated as TEX. CODE CRIM. PROC. ANN. art. 102.030 (West Supp.
2020) (treasurer shall deposit ten percent of fees collected under this section in general fund of
county or municipality for purpose of improving efficiency of administration of justice in county
or municipality).
The court of criminal appeals recently has held that the pendency of an appeal “stops the
clock” for the purposes of the time payment fee. Dulin v. State, 620 S.W.3d 129, 133 (Tex. Crim.
2021). Consequently, the assessment of the time payment fee in Appellant’s case is premature
and should be struck in its entirety, without prejudice to its being assessed later if, more than thirty
days after the issuance of the appellate mandate, the defendant has failed completely to pay any
fine, court costs, or restitution that he owes. Id. 4
DISPOSITION
Having sustained Appellant’s second issue and based on our discussion related to his third
issue, we modify the trial court’s judgment to reflect that Appellant’s court costs are $249.00 by
deleting the $600.00 in attorney’s fees, as well as the $25.00 time payment fee, without prejudice
to the time payment fee’s being assessed later, if more than thirty days after the issuance of our
mandate, Appellant fails to completely pay the fine, court costs, or restitution he owes. Having
overruled Appellant’s first issue, we affirm the trial court’s judgment as modified.
GREG NEELEY
Justice
Opinion delivered August 18, 2021.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
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Because the fee assessment Appellant challenges in his first issue is premature, we do not consider the
constitutionality of the fee. See TEX. R. APP. P. 47.1.
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
AUGUST 18, 2021
NO. 12-20-00193-CR
ROBERT L. CLARK, SR.,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the County Court at Law
of Smith County, Texas (Tr.Ct.No. 001-80574-14)
THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, because it is the opinion of this court that the judgment of
the court below should be modified and as modified, affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be modified to reflect that Appellant’s court costs are $249.00 by deleting the
$600.00 in attorney’s fees, as well as the $25.00 time payment fee, without prejudice to the time
payment fee’s being assessed later, if more than thirty days after the issuance of our mandate,
Appellant fails to completely pay the fine, court costs, or restitution he owes; in all other respects
the judgment of the trial court is affirmed; and that this decision be certified to the court below
for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.