Albert Butler Burns v. State ( 2012 )

IN THE
TENTH COURT OF APPEALS
No. 10-11-00315-CR
ALBERT BUTLER BURNS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 77th District Court
Limestone County, Texas
Trial Court No. 12424-A
MEMORANDUM OPINION
Albert Burns was convicted of the state jail offense of theft of property under
$1,500 with two prior theft convictions, which was then enhanced to a second degree
felony due to two enhancement allegations. TEX. PEN. CODE ANN. § 31.03(e)(4)(D) (West
Supp. 2011). Burns was sentenced to 15 years in prison and a $10,000 fine. Burns
complains that the evidence was insufficient for the jury to have found that he
appropriated property. Because we find that the evidence was sufficient, we affirm the
judgment of the trial court.
Sufficiency of the Evidence
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
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
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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).
The Facts
An individual wearing baggy pants and a gray hoodie sweatshirt with the
number "17" on the front was observed attempting to leave a Family Dollar store
carrying a box he did not have when he entered the store. This individual was later
identified as Burns. Burns told the store manager and another employee that the box
was empty. When asked to return to the checkout counter, four large bottles of laundry
detergent were located inside the box. Burns stated that he did not have enough money
to pay for the detergent and left to go home to get some more money.
After Burns departed, the employee informed the manager that Burns also had
merchandise in his pants. The manager went outside to ask Burns to return the
merchandise in his pants but Burns continued walking away, although in an unusual
manner described by the manager as "kind of weird," "a waddle," and "awkward." The
manager called 9-1-1 as she watched Burns walk away and she saw Burns throw some
things out of his pants. This incident occurred after dark but the manager testified that
there was adequate lighting from the Family Dollar parking lot and a business across
the street for her to observe Burns throw something away from his pants while walking
down the side of a road fairly close to the store. The manager observed the police
detain Burns a short distance up that road.
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Burns was detained by the police because he matched the description of the
suspect. An officer walked along that road and discovered three bottles of laundry
detergent on the side of the road. The officer believed Burns could have hidden the
bottles in the groin area of his pants because they were baggy. The bottles of laundry
detergent found were consistent with those sold at Family Dollar and appeared to be
new. Burns was returned to the store and the manager identified him as the person she
saw throw away the items from his pants in the approximate area where the laundry
detergent was found. Burns was wearing a gray hoodie sweatshirt with the number
"17" on it when he was detained, and matched the individual shown on the security
video from the store. However, Burns denied ever being in the Family Dollar store that
evening even after he was told he was seen on the security video.
Analysis
Burns argues that the evidence was insufficient because he was not seen placing
laundry detergent in his pants and the store's security video does not show him hiding
anything in his pants. The security video is comprised of still images taken each second
and the images are fuzzy in quality. It is not clear from the video whether Burns has
items in his pants or not because the angle is not good. Burns' pants do appear to be
fairly baggy from the video from the store and the in-car videos depicting Burns' arrest
from the officers' cars and his sweatshirt was baggy as well. The jury, as factfinders,
were able to observe the demeanor of the manager of the store and the officers who
Burns v. State Page 4
testified as well as the videos from the store and the officers' vehicles and could
reasonably have believed the events as described by the manager. The fact that bottles
of laundry detergent of a type sold by Family Dollar that looked new were located in
the approximate location where the manager stated that Burns threw them away creates
a strong inference that Burns appropriated the bottles.
Burns denied ever being in the store that evening even though the store security
video shows the contrary when he attempted to leave the store with other laundry
detergent. A factfinder can consider a defendant's untruthful statement as affirmative
evidence of guilt. See Gear v. State, 340 S.W.3d 743, 747 (Tex. Crim. App. 2011) (rational
fact finder can consider a defendant's untruthful statements, in connection with the
other circumstances of the case, as affirmative evidence of the defendant's guilt); Padilla
v. State, 326 S.W.3d 195, 201 (Tex. Crim. App. 2010) (same).
Viewing the evidence in a light most favorable to the prosecution and affording
the required deference to the jury as factfinders, we find that the evidence was sufficient
for the jury to have found that Burns appropriated the bottles of laundry detergent. We
overrule Burns' sole issue.
Conclusion
Having found the evidence sufficient, we affirm the judgment of the trial court.
TOM GRAY
Chief Justice
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Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed August 9, 2012
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