Michael Roy Short v. State ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00425-CR
MICHAEL ROY SHORT APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1343102D
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MEMORANDUM OPINION 1
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In a single issue in this appeal from a robbery 2 conviction, appellant
Michael Roy Short contends that the evidence is insufficient to show that the
special owner from whom the State alleges he appropriated property had a
greater right to possession of the property than he did. We affirm.
1
See Tex. R. App. P. 47.4.
2
See Tex. Penal Code Ann. § 29.02(a)(1) (West 2011).
Background Facts
One day in September 2013, appellant went to the automotive department
of a Wal-Mart store, selected some headlights, and walked into a bathroom.
Cole Brock, an asset protection specialist for Wal-Mart, 3 noticed appellant
walking briskly and began to monitor him. Appellant left the bathroom, walked
through the store, passed the cash registers, and exited. Brock did not approach
appellant because at that time, he was not sure that appellant had any of the
store’s merchandise.
Once outside, appellant pulled the headlights out from beneath the front of
his pants. After spending approximately one minute outside, appellant reentered
the store and exchanged the headlights, which looked like they had been
tampered with, for a gift card with a value of $51.83, which could be treated like
cash inside Wal-Mart. He eventually attempted to exit the store a second time
when Brock and an off-duty police officer, Robert San Filipo, confronted him.
Appellant immediately attempted to run away but was caught by Officer San
Filipo, whom appellant punched in the jaw. Officer San Filipo tackled appellant
and eventually used a Taser to subdue him.
A grand jury indicted appellant with robbery. The indictment included a
paragraph alleging that appellant had been previously convicted of burglary.
Appellant received appointed counsel and pled not guilty.
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Brock testified that he had been employed by Wal-Mart as an asset
protection specialist for several years.
2
After the parties completed their presentation of evidence and arguments
in the guilt-innocence phase of the trial, a jury convicted appellant of robbery.
The trial court heard evidence related to appellant’s punishment (including his
criminal history), found the indictment’s enhancement allegation to be true
(based on appellant’s plea of true), and sentenced him to twenty years’
confinement. Appellant brought this appeal.
Alleged Insufficiency of Evidence
In his sole issue, appellant challenges the sufficiency of the evidence to
support his conviction. In our due-process review of the sufficiency of the
evidence to support a conviction, we view 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 crime beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State, 434
S.W.3d 166, 170 (Tex. Crim. App. 2014). This standard gives full play to the
responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Dobbs, 434 S.W.3d at 170.
Appellant contends that the State “failed to adduce evidence that [Brock]
had a greater right of possession of either the Sylvania headlights or the Wal-
Mart gift card than [he did]. The State’s evidence is therefore insufficient to
support the judgment so [appellant] is entitled to an acquittal.” A person commits
robbery if he intentionally, knowingly, or recklessly causes bodily injury to another
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“in the course of committing theft . . . and with intent to obtain or maintain control
of the property.” Tex. Penal Code Ann. § 29.02(a)(1). Theft occurs when a
person “unlawfully appropriates property with intent to deprive the owner of
property.” Id. § 31.03(a) (West Supp. 2014); see Byrd v. State, 336 S.W.3d 242,
250–51 (Tex. Crim. App. 2011) (explaining that the “gravamen of theft is two-
pronged—taking certain specified property away from its rightful owner or
depriving that owner of its use or enjoyment”). An “owner” of property includes
someone with a greater right to possession of the property than the defendant.
Tex. Penal Code Ann. § 1.07(a)(35)(A) (West Supp. 2014); see Sandone v.
State, 394 S.W.3d 788, 791 (Tex. App.—Fort Worth 2013, no pet.). “Possession”
of property includes control or management of it. Tex. Penal Code Ann.
§ 1.07(a)(39).
When property is owned by a corporation, proof of a “special owner” is
sufficient to satisfy the ownership requirement. Martinez v. State, No. 02-14-
00423-CR, 2015 WL 1967442, at *2 (Tex. App.—Fort Worth Apr. 30, 2015, no
pet.) (mem. op., not designated for publication); Jackson v. State, 270 S.W.3d
649, 657 (Tex. App.—Fort Worth 2008, pet. ref’d) (explaining that a special
owner “is an individual, such as an employee, who is in care, custody, or control
of the property belonging to another person or a corporation” and holding that an
auto dealership’s finance director qualified as a special owner of a car).
The facts in this case closely resemble those in Martinez. There, we held
that an employee’s testimony that she was a “security asset protection person” at
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Wal-Mart was sufficient to establish her position as a special owner that had a
greater right to possession of Wal-Mart’s property than the defendant. Martinez,
2015 WL 1967442, at *2. Similarly, here, Brock testified that he is an “Asset
Protection Specialist” employed by Wal-Mart to prevent the loss of stolen
merchandise. He said that he attempts to prevent thefts from the store by
“walking the store and observing certain elements enabling [him] to make
apprehensions.” He also testified that he uses multiple cameras and a
“Pan/Tilt/Zoom” system to catch shoplifters. He referred to Wal-Mart’s property
as “my product.”
Appellant relies on the court of criminal appeals’s decision in Freeman v.
State, 707 S.W.2d 597 (Tex. Crim. App. 1986). There, the court decided the
question of “whether . . . Marsha F. Bourke, a security guard employed by Sears
. . . had the greater right to possession of property owned by that company than
did Gwendolyn Elaine Freeman, . . . a fellow employee of Bourke’s who worked
as a cashier-clerk at the same store.” Id. at 600. While the court ultimately
affirmed the theft conviction, it noted that before the commission of the offense,
by Bourke’s and Freeman’s common positions as employees of the store, they
had “equal competing possessory interests in [the] property.” Id. at 603–04, 606.
No such evidence exists to show that appellant and Brock ever had equal and
competing interests in the property that appellant stole.
Viewing the evidence and reasonable inferences in the light most favorable
to the jury’s verdict, we affirm the jury’s implicit finding that Brock was a special
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owner and had a greater right to possession of the property than appellant. See
Martinez, 2015 WL 1967442, at *2; see also Smallwood v. State, 607 S.W.2d
911, 914 (Tex. Crim. App. 1979) (op. on reh’g) (holding that an employee of a
department store, by virtue of the employment, had a greater right of possession
of stolen slacks than the defendant); Gonzalez v. State, No. 13-11-00599-CR,
2013 WL 6834798, at *5 (Tex. App.—Corpus Christi July 29, 2013, pet. ref’d)
(mem. op., not designated for publication) (holding that when a loss prevention
officer is the employee of the title owner, the evidence is sufficient to show that
the employee has a greater right of possession to the property than the
defendant); Liggens v. State, 50 S.W.3d 657, 660 (Tex. App.—Fort Worth 2001,
pet. ref’d) (“Hammack had worked for Albertson’s eighteen years . . . . This was
sufficient evidence . . . from which a rational trier of fact could have found beyond
a reasonable doubt that Hammack had a greater right to the actual care, custody,
control, or management over the merchandise than appellant.”); Tucker v. State,
No. 14-97-00261-CR, 1999 WL 33634, at *2 (Tex. App.—Houston [14th Dist.]
Jan. 28, 1999, no pet.) (not designated for publication) (“Security guards or ‘loss
prevention agents’ are hired to protect a company’s property and keep it from
being stolen. By virtue of this employment, these guards and agents have a
greater right to possession of stolen property than do those charged with
unlawfully appropriating it.”); Castle v. State, 718 S.W.2d 86, 88 (Tex. App.—Fort
Worth 1986, no pet.) (“[E]vidence that Bunche was an employee of J.C. Penney
is sufficient to show a greater right of possession in her than in appellant and to
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establish her as special owner of the property.”). We overrule appellant’s sole
issue.
Conclusion
Having overruled appellant’s only issue, we affirm the trial court’s
judgment.
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; WALKER and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 30, 2015
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