Jeffrey Todd Blackburn v. State ( 2015 )

IN THE
TENTH COURT OF APPEALS
No. 10-14-00124-CR
JEFFREY TODD BLACKBURN,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the County Court at Law
Walker County, Texas
Trial Court No. 13-0194
MEMORANDUM OPINION
Jeffery Blackburn appeals from a conviction for the offense of theft of $50 or more
but less than $500. TEX. PEN. CODE ANN. § 31.03 (West 2011). Blackburn complains that
the trial court erred in the admission of a video recording because it was not properly
authenticated, erred in allowing evidence of extraneous offenses in the punishment
phase of the trial, and erred by denying his motion for directed verdict. Because we
find no reversible error, we affirm the judgment of the trial court.
Admission of Evidence
In his first issue, Blackburn complains that the trial court abused its discretion by
admitting a DVD video recording of Blackburn in a Target store from which a flat iron
and an iPod docking station with speakers (the "speakers") were shoplifted. Woeckner,
a former employee who was a loss prevention officer at that Target location at the time
of the theft, testified that he had prepared the DVD by reviewing the security camera
footage at Target and downloading it onto a DVD which he provided to law
enforcement. Woeckner also testified that he had seen the recording which was made
on a device that made accurate recordings and that it was a true and correct copy of the
recording from the day of the offense. Target's surveillance system consisted of twelve
security cameras, and Woeckner had compiled the footage showing Blackburn in and
departing from Target and copied it onto the DVD.
Blackburn objected to the admission of the DVD because Woeckner was not the
operator of the recorder and because he did not personally observe the events which
had been recorded. Because of this, Blackburn argued that Woeckner could not
properly state that the recording was accurate.
A trial court's admission of evidence is reviewed for an abuse of discretion.
Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). Authentication is a
condition precedent to admissibility that may be satisfied by "evidence sufficient to
support a finding that the matter in question is what its proponent claims." TEX. R.
Blackburn v. State Page 2
EVID. 901(a). Evidence may be authenticated in a number of ways, including by direct
testimony from a witness with personal knowledge, by comparison with other
authenticated evidence, or by circumstantial evidence. Tienda, 358 S.W.3d at 638. If the
trial court's ruling that a jury could reasonably find proffered evidence authentic is at
least "within the zone of reasonable disagreement," we will not interfere with that
determination. Id.
Woeckner testified that the security system continuously recorded from the
security cameras and that he had reviewed the footage personally and copied only the
camera angles which showed Blackburn walking around in Target with the packaging
containing the speakers in his hands and thereafter departing from the Target with the
flat iron still in its packaging. Woeckner testified that the DVD was the one he had
provided to law enforcement and it was an accurate recording. We hold that the trial
court's finding that the DVD was adequately authenticated did not constitute an abuse
of discretion.
Later, after the DVD had been played to the jury and the State had passed the
witness, on cross-examination, Blackburn made a motion to have the DVD stricken
because Woeckner had edited the DVD to only show that footage of Blackburn in the
Target rather than copying the entire security footage from all twelve cameras from the
date in question. However, in order to preserve error, an objection to the admission of
evidence must be timely made. TEX. R. APP. P. 33.1(a); Pena v. State, 353 S.W.3d 797, 807
Blackburn v. State Page 3
(Tex. Crim. App. 2011). "A complaint is timely if it is made 'as soon as the ground of
objection becomes apparent.'" Pena, 353 S.W.3d at 807. At a minimum, the latest the
alleged error would have become apparent was during the playing of the DVD to the
jury. Blackburn's complaint regarding any editing or alteration of the DVD was not
timely, and was therefore not preserved for our review. We overrule issue one.
Extraneous Offenses
In his second issue, Blackburn complains that the trial court erred by allowing
evidence of three extraneous offenses during the punishment phase of his trial. The
State presented three video recordings, one from Walmart from the same day as the
instant offense, and two from Target within the next month of the instant offense. The
Walmart recording showed Blackburn leaving Walmart with two Toshiba laptops. The
first Target recording showed Blackburn walking out with a Dyson vacuum cleaner and
the second showed Blackburn attempting to leave Target with some luggage and other
items. In the second Target recording, Blackburn was confronted at the front door by
the Target manager and was prevented from leaving with the luggage and other items.
Additionally, an audio recording that had been made by law enforcement when they
questioned Blackburn prior to his arrest was also admitted into evidence during which
Blackburn was confronted about three recent thefts from Target and two from Walmart.
On that recording, Blackburn admitted that he had committed the offenses and claimed
that he had given away the items he had taken.
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Article 37.07, section 3(a) of the Texas Code of Criminal Procedure provides that
evidence as to any matter may be offered during the punishment phase of a trial if the
trial court deems it relevant to sentencing. TEX. CODE CRIM. PROC. ANN. art. 37.07 § 3(a)
(West 2006). Evidence of extraneous crimes or bad acts is admissible if they are shown
beyond a reasonable doubt by evidence to have been committed by the defendant or if
he could be held criminally responsible for them, regardless of whether he was
previously charged with or finally convicted of the crime or act. Id.
The three recordings that depict Blackburn taking items from Target and
Walmart, the testimony from Woeckner and Walmart's loss prevention officer
explaining how the recordings were made, and Blackburn's confession, are sufficient for
the trial court to have found that Blackburn committed the offenses beyond a
reasonable doubt. We overrule issue two.
Sufficiency of the Evidence
In his third issue, Blackburn complains that the evidence was insufficient for the
jury to have found beyond a reasonable doubt that he committed theft as to the
speakers. The information and jury charge alleged that Blackburn committed theft of a
flat iron and electronic speakers with a value of $50 or more but less than $500.
Blackburn argues that there was no evidence that Blackburn left Target with the
speakers.
Blackburn v. State Page 5
Standard of Review
A challenge to the trial court's denial of a motion for an instructed verdict or a
motion for a directed verdict is treated as a challenge to the sufficiency of the evidence.
Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). The Court of Criminal
Appeals has expressed our standard of review of a sufficiency issue as follows:
In determining whether the evidence is legally sufficient to support a
conviction, a reviewing court must consider all of the evidence in the light
most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences therefrom, a rational fact finder could
have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
13 (Tex. Crim. App. 2007). This “familiar standard gives full play to the
responsibility of the trier of fact fairly 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. “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.” Hooper, 214 S.W.3d at 13.
Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).
The Court of Criminal Appeals has also explained that our review of “all of the
evidence” includes evidence that was properly and improperly admitted. Conner v.
State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting
inferences, we must presume that the factfinder resolved the conflicts in favor of the
prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. at
326. Further, direct and circumstantial evidence are treated equally: “Circumstantial
evidence is as probative as direct evidence in establishing the guilt of an actor, and
Blackburn v. State Page 6
circumstantial evidence alone can be sufficient to establish guilt.” Hooper v. State, 214
S.W.3d at 13. Finally, it is well established that the factfinder is entitled to judge the
credibility of witnesses and can choose to believe all, some, or none of the testimony
presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
Theft is defined in the penal code as "unlawfully appropriat[ing] property with
intent to deprive the owner of property." TEX. PEN. CODE ANN. § 31.03(a). In defining
the various theft offenses, the word "appropriate" means "to acquire or otherwise exercise
control over property other than real property." TEX. PENAL CODE ANN. § 31.01(4)(B)
(emphasis added). "Any removal of the property, no matter how slight, from its
customary location is sufficient to show control over the property for purposes of theft."
Nautilus Ins. Co. v. Steinberg, 316 S.W.3d 752, 756 (Tex. App.—Dallas 2010, no pet.) (citing
Baker v. State, 511 S.W.2d 272 (Tex. Crim. App. 1974)). Even if we were to assume that
the evidence was insufficient to show that Blackburn actually removed the speakers
from Target, we note that in order "[t]o show theft under Texas law, it is not necessary
to establish that the property was removed or carried away from the premises." Id. at
755-56 (citing Hill v. State, 633 S.W.2d 520, 521 (Tex. Crim. App. 1981)); see Senter v. State,
411 S.W.2d 742, 744-45 (Tex. Crim. App. 1967); Hawkins v. State, 214 S.W.3d 668, 670
(Tex. App.—Waco 2007, no pet.) ("[A]sportation—the act of carrying away or removing
property—is not an element of statutory theft."). Here, the evidence showed that
Blackburn was in possession of the speakers while walking through Target, Woeckner
Blackburn v. State Page 7
found the empty packaging from the speakers in the store shortly thereafter, and
Woeckner testified that he had verified that none of that type of speakers had been sold
at Target that day. We find that the evidence is sufficient to show that Blackburn
exercised control over the speakers while in Target and for the jury to have inferred that
Blackburn was the person who removed them from the packaging, constituting an
unlawful appropriation of the property.1 We overrule issue three.
Conclusion
Having found no reversible error, we affirm the judgment of the trial court.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed April 23, 2015
Do not publish
[CR25]
1 Blackburn does not challenge the sufficiency of the evidence relating to the flat iron.
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