Dorian Shane Thomas v. State ( 2003 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Dorian Shane Thomas

Appellant

Vs.                   No. 11-03-00116-CR -- Appeal from Grayson County

State of Texas

Appellee

The jury convicted Dorian Shane Thomas of the offense of theft, a state jail felony under TEX. PENAL CODE ANN. ' 31.03(e)(4)(D) (Vernon 2003).  After appellant pleaded true to the enhancement allegations, the trial court assessed his punishment at confinement for 15 years.^[1]  We modify and affirm. 

In his two points of error, appellant challenges the legal and factual sufficiency of the evidence in support of his theft conviction.  Appellant specifically contends that the evidence fails to show that he appropriated the property in question by acquiring or otherwise exercising control over it.  In order to determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and 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 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000).  In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak as to render the conviction clearly wrong and manifestly unjust or whether the evidence supporting guilt, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust.  Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Goodman v. State, 66 S.W.3d 283 (Tex.Cr.App.2001); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App.2000); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996).

The record shows that appellant committed refund fraud at a Super Kmart store.  According to Kmart=s loss prevention associate, Jason Robinson, appellant entered the store with nothing but a receipt in his hand and walked to the electronics department.  Robinson watched appellant on the surveillance cameras.  Appellant walked directly over to the DVD players, looked at the receipt, matched UPC numbers on the receipt with those of the merchandise on the shelf, took a DVD player off the shelf, carried it to the counter, placed it on the counter where the AEAS@ security tag deactivator was located, and turned the box so that all sides were deactivated.  Appellant then stood in the aisle and waited for a Kmart employee to help him.  An employee subsequently directed appellant to the customer service desk to return merchandise.  At the customer service desk, appellant presented the receipt showing that he had previously purchased a DVD player and his credit card, the same card which he had previously used to purchase a DVD player.  In addition to Robinson=s testimony, the surveillance videotape was introduced into evidence. 

A customer service associate, Betty Shaw, completed the refund transaction and entered a credit Ain the machine@ to appellant=s credit card account.  Appellant was detained by Kmart personnel after the transaction was completed.  Both Shaw and Robinson testified that appellant had returned merchandise at the store before and that he was familiar with the return process.  According to the testimony of both Shaw and the store director, the refund transaction was completed; and the $248.39 left the store=s account and was credited to the account of the credit card that appellant had presented. 

Appellant testified that he purchased the DVD player with his Visa credit card for his daughter=s birthday but that he subsequently learned that she already had one.  Upon attempting to return the player to where he had purchased it, he entered the store carrying the DVD player and walked to the electronics department.  However, he realized that he had left the receipt in his car, so he panicked and set the DVD player back on the shelf while he went back to the car to get his receipt.  Appellant subsequently returned to the store carrying the receipt; walked back to electronics; grabbed the box he had left earlier; took it to the counter; set it down; and, to make sure he had grabbed the correct one, turned the box over to compare the numbers on the box with the numbers on the receipt. Appellant testified that he had never returned merchandise at Kmart, that he was not familiar with credit-card purchases, and that he was directed to the customer service desk to return the DVD player.  Finally, appellant testified that he never got credit on his account for the refund.             We hold that the evidence is both legally and factually sufficient to support appellant=s conviction.  The evidence showed that appellant appropriated and exercised control over the money when he tendered his credit card for a refund and received a credit on his credit card account.  See Bailey v. State, 885 S.W.2d 193, 198-99 (Tex.App. - Dallas 1994, pet=n ref=d); Salazar v. State, 711 S.W.2d 720 (Tex.App. - Corpus Christi 1986, pet=n ref=d); see also Stewart v. State, 44 S.W.3d 582, 587-89 (Tex.Cr.App.2001)(dealing with a venue issue involving the location of the appropriation). Although appellant testified that he never received credit for the refund, Kmart employees testified that the transaction was completed.  A refund receipt establishing that the transaction had been completed was also introduced into evidence.  Appellant=s points of error are overruled.

We note that the judgment reflects that the offense appellant was convicted of was a second degree felony.  However, pursuant to Section 31.03(e)(4)(D), the offense is actually a state jail felony. Consequently, the judgment should be modified to reflect the correct offense degree.  Also, the judgment does not reflect that appellant pleaded true to the enhancement allegations or that a finding of true was made by the trial court.

The judgment of the trial court is modified to reflect that the offense was a state jail felony, that appellant entered a plea of true to the enhancement allegations, and that the trial court found the allegations to be true.  As modified, the judgment is affirmed.

TERRY McCALL

JUSTICE

November 26, 2003

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of:  Arnot, C.J., and

Wright, J., and McCall, J.

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^[1]See TEX. PENAL CODE ANN. ' 12.42(a)(2) (Vernon 2003).