Christopher Michael Lindgren v. State ( 2013 )

Opinion issued March 12, 2013.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00083-CR
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CHRISTOPHER MICHAEL LINDGREN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 85th District Court
Brazos County, Texas
Trial Court Case No. 10-1703-CRF-85
MEMORANDUM OPINION
The State charged Christopher Lindgren with theft of property valued at less
than $1,500, with two or more prior convictions, a state jail felony. See TEX.
PENAL CODE ANN. § 31.03(e)(4)(D) (West Supp. 2012). A jury heard the case
against Lindgren and found him guilty of the offense. Lindgren and the State
reached a plea deal as to punishment: two years’ incarceration, to be probated for
five years, contingent on Lindgren’s payment of a $500 fine, completion of anger
management classes, and service of 90 days’ detention in the Brazos County Jail.
On appeal, Lindgren contends that (1) the evidence is insufficient to support his
conviction, and (2) the trial court erred in admitting evidence of Lindgren’s two
prior theft convictions. We affirm.
Background
I. Facts
One afternoon in January 2010, Lindgren entered an H.E.B. Supermarket in
Brazos County, Texas, and headed to the aisle containing DVDs for sale. Jonathan
Carrizales, the store’s Loss Prevention Manager, was on duty that day. Lindgren
caught Carrizales’s attention when he entered the store. Carrizales followed
Lindgren and saw him select a DVD, then head for the baby care products aisle.
The store has apprehended many shoplifters in that area because that aisle has no
surveillance camera. Carrizales continued to observe Lindgren as he unwrapped
the DVD and put it inside the front of his pants. Then, Lindgren grabbed packages
of baby wipes and diapers headed out of the baby care products aisle. When
Lindgren left, Carrizales retrieved the discarded DVD wrapper and followed
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Lindgren to the front of the store. Lindgren purchased the baby care products, but
not the DVD, which was concealed in his pants.
Lindgren left the store through the side doors near the pharmacy. No
security alarm sounded; Lindgren had removed the DVD’s sensor when he took off
its clear plastic wrapper. When Lindgren exited the store, Carrizales caught up
with him and confronted him. Carrizales asked Lindgren to return inside and
asked him where the DVD was. He accompanied Lindgren to a register, where
Lindgren pulled the DVD from his pants, placed it on the register belt, and said, “I
want to pay for that.”
From the back office, Store Manager Neil Krebs saw Lindgren remove the
DVD from his pants and place it on the counter. Carrizales notified Krebs that he
had apprehended Lindgren and called the police. According to H.E.B. policy,
Krebs waited in the office with Carrizales and Lindgren for the police to arrive. As
they waited, Lindgren became belligerent; he threatened Krebs and Carrizales that
he would assault them if he encountered them in the street, and he also insulted a
supervisor who stopped by the office.
Lindgren testified in his own defense. He denied stealing the DVD and
explained that he had stopped by the DVD section to select a Wall-E DVD for his
girlfriend’s three-month-old son, but then decided it was too expensive. Lindgren
explained that would not have stolen a DVD; he carried approximately ninety
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dollars, enough to cover his purchases and the DVD. According to Lindgren, the
H.E.B. employees framed him because of something that happened while he was
working at another H.E.B. in the area. Lindgren testified that, shortly after he
completed some construction work on the home of an H.E.B. co-worker’s brother,
the police searched the home and found drugs. Lindgren believed that his co-
workers thought he had reported the brother to the police and considered Lindgren
a “snitch.” Carrizales testified that he had not met Lindgren before apprehending
him, but Lindgren told the jury that Carrizales was an acquaintance he met while
playing darts.
II. Proceedings below
Lindgren’s trial counsel moved to exclude evidence of Lindgren’s two prior
convictions before the guilt-innocence phase of trial. The motion declares that
“[t]he Defendant is willing to stipulate outside the presence of the jury that he has
twice before been convicted of theft.” As relief, the motion requests that the trial
court “order and instruct the District Attorney and the District Attorney’s
representatives and witnesses, not to elicit or give testimony respecting, alluding to
. . . his prior convictions until a hearing has been held outside the presence of the
jury, at which time this Court can determine the admissibility of such matters.” In
arguing the motion, trial counsel presented the proposed stipulation as follows:
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DEFENSE COUNSEL: And, Judge, also for the sake of a complete
record I would like to ask my client if he’s willing to stipulate
that he’s twice before been convicted of theft offenses. And . . .
would like to ask him that on the record . . . in support of my
argument on his motion to exclude.
Counsel then turned to Lindgren and asked:
DEFENSE COUNSEL: And have I expressed to you that if the court
were of a mind to grant the motion to exclude, it would be to
your advantage to actually stipulate to the prior theft
convictions?
APPELLANT: Yes, sir.
DEFENSE COUNSEL: And have — are you acknowledging for the
limited purpose of this hearing that you’ve twice before been
convicted of theft?
APPELLANT: Yes, sir.
The trial court heard further arguments from counsel and denied Lindgren’s motion
to exclude.
Discussion
I. Evidentiary Sufficiency
A. Standard of review
Under the sufficiency-of-the-evidence standard of review applicable to
criminal cases, evidence is insufficient to support a conviction if, considering all
the record evidence in the light most favorable to the verdict, no rational factfinder
could have found that each essential element of the charged offense was proven
beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.
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2781, 2789 (1979); In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071 (1970);
Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State,
235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Viewed in the light most favorable
to the verdict, the evidence is insufficient in two circumstances: (1) when the
record contains no evidence, or merely a “modicum” of evidence, probative of an
element of the offense; or (2) when the evidence conclusively establishes a
reasonable doubt. See Jackson, 443 U.S. at 314, 318 n.11, 320, 99 S. Ct. at 2786,
2789 n.11; Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750. Additionally,
the evidence is insufficient as a matter of law if the acts alleged do not constitute
the criminal offense charged. Williams, 235 S.W.3d at 750.
An appellate court determines “whether the necessary inferences are
reasonable based upon the combined and cumulative force of all the evidence
when viewed in the light most favorable to the verdict.” Hooper v. State, 214
S.W.3d 9, 16–17 (Tex. Crim. App. 2007). 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. Id. An appellate court presumes that the
factfinder resolved any conflicting inferences in favor of the verdict and defers to
that resolution. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235
S.W.3d at 778. An appellate court also defers to the factfinder’s evaluation of the
evidence’s credibility and weight. See Williams, 235 S.W.3d at 750.
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B. Theft of less than $1,500
The legal sufficiency of the evidence is measured by the elements of the
offense, as defined by a hypothetically correct jury charge. Malik v. State, 953
S.W.2d 234, 240 (Tex. Crim. App. 1997). The indictment charged that Lindgren
“unlawfully appropriate[d], by acquiring or otherwise exercising control over
property, to wit: A DVD, of the value of less than $1,500, from . . . H.E.B., the
owner thereof, with intent to deprive the owner of the property,” and that, before
committing that offense, Lindgren had been twice convicted of theft, and identified
those prior convictions. Under the applicable statute, a person commits theft if he
unlawfully appropriates property with intent to deprive the owner of it without the
owner’s effective consent. TEX. PENAL CODE ANN. § 31.03(a) (West 2012).
C. Analysis
Carrizales testified that he watched Lindgren remove the wrapper from a
DVD and stuff it down his pants, pick up some baby products, head to the front of
the store, pay for the baby products, and then leave the store. The jury reasonably
could have inferred from this testimony that Lindgren tore off the wrapper and
concealed the DVD in his pants to avoid detection when he removed it from the
store. Lindgren’s attempt to conceal the DVD is probative of his awareness that he
was engaging in wrongful conduct. See Guevara v. State, 152 S.W.3d 45, 50 (Tex.
Crim. App. 2004); Tezino v. State, 765 S.W.2d 482, 485 (Tex. App.—Houston [1st
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Dist.] 1988, pet. ref’d). The jury was also entitled to reject Lindgren’s explanation
of the events as implausible. See id.
Lindgren observes that the State failed to corroborate many of the disputed
facts, and its witnesses proffered inconsistent testimony about factual details, such
as the placement of the price tag on the DVD and the precise manner in which
Lindgren concealed the DVD on his person. He claims that Carrizales’s
eyewitness testimony should have been supplemented with video recordings from
the store’s security cameras and the jury should have had the opportunity to view
the plastic wrap that, according to Carrizales’s testimony, Lindgren had removed
from the DVD case. But neither claim renders the conviction legally infirm.
These observations instead challenge the credibility of the witnesses and the
weight of the evidence, considerations that, out of deference to the fact-finder, do
not play a part in our appellate review. See Brooks v. State, 323 S.W.3d 893, 899–
90 (Tex. Crim. App. 2010). As the sole judge of a witness’s credibility and the
weight of the testimony, the jury was free to resolve conflicts in testimony. See
Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). We hold that a
rational trier of fact reasonably could have found that Lindgren appropriated the
DVD—H.E.B.’s property—by acquiring or exercising control over it with the
intent to deprive H.E.B. of it.
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II. Admissibility of prior convictions
Lindgren relies on Tamez v. State, 11 S.W.3d 198 (Tex. Crim. App. 2000),
in asserting that the trial court caused harmful error in admitting the judgments
reflecting his two prior convictions. In Tamez, the defendant was charged with
driving while intoxicated, a third-degree felony if the State proves the defendant
had two prior DWI convictions. Id. at 199. The indictment alleged that the
defendant had six prior convictions. Id. The defendant offered to stipulate to two
if the trial court excluded any evidence of the prior convictions at trial. Id. The
trial court refused the offer, and, at the start of trial, over the defendant’s objection,
allowed the prosecutor to read the entire indictment to the jury. Id. The trial court
also admitted into evidence, over the defendant’s objection, the prior judgments
against him. Id.
The Court of Criminal Appeals concluded that article 36.01 of the Texas
Code of Criminal Procedure, which requires the indictment to be read to the jury,
applies to allegations of prior convictions recited in the indictment, if they serve to
establish jurisdiction and are elements of the charged offense, not merely for the
purpose of enhancement in sentencing. Id. at 203. It reasoned:
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In cases where the defendant agrees to stipulate to the two prior . . .
convictions, we find that the proper balance is struck when the State
reads the indictment at the beginning of trial, mentioning only the two
jurisdictional prior convictions, but is foreclosed from presenting
evidence of the convictions during the case-in-chief. This allows the
jury to be informed of the precise terms of the charge against the
accused, thereby meeting the rationale for reading the indictment,
without subjecting the defendant to substantially prejudicial and
improper evidence during the guilt/innocence phase of the trial.
11 S.W.3d at 202–03. But the Court held that the trial court had abused its
discretion in admitting evidence beyond the two prior convictions that constitute an
element of the crime.
Lindgren’s case differs from Tamez in two significant respects: Lindgren did
not make an unconditional offer to stipulate to his prior convictions, as the
defendant did in Tamez, and the trial court did not admit any evidence of any
conviction beyond the two necessary to prove the charged offense. Lindgren’s
stipulation to the prior theft convictions, which was conditioned on the trial court’s
ruling in his favor, had no effect outside of the pretrial hearing on his motion to
exclude. Lindgren asked the trial court to prevent the State from making any
mention of the fact of Lindgren’s prior convictions during trial and that the
stipulation be mentioned only “outside the presence of the jury.” Even when the
defendant stipulates to his prior convictions, however, they remain a legitimate
subject of voir dire, opening statements, closing arguments, the reading of the
indictment, and jury instructions. See Hollen v. State, 117 S.W.3d 798, 802 (Tex.
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Crim. App. 2003) (declaring that “the jury should be informed of the stipulation, as
the two prior convictions are elements of the offense that must be proven to the
factfinder”); Flowers v. State, 124 S.W.3d 801, 803–04 (Tex. App.—Houston [1st
Dist.] 2003, pet. ref’d) (relying on Hollen to reject claim of ineffective assistance
based on trial counsel’s failure to object to State’s publication to jury of
defendant’s stipulation to prior convictions because, “even if counsel had objected,
the trial court would not have erred in admitting the testimony or evidence”); see
also Herring v. State, 147 S.W.3d 390, 395–96 & n.19 (Tex. Crim. App. 2004)
(explaining that trial court correctly concluded that, even assuming that trial court
erred in admitting State’s further references during trial to defendant’s prior
offense, any error was harmless because “[t]he jury would, of course, have been
informed of the stipulation,” and therefore, would have known the identity of the
prior offense). In asking that the trial court prohibit the state from making any
reference to the two prior convictions—even though they are elements of the
charged offense—Lindgren’s request goes beyond the bounds of a simple offer to
stipulate, which would have been error to deny. See Hollen, 97 S.W.3d at 154
(citing Robles v. State, 85 S.W.3d 211, 213 (Tex. Crim. App. 2002), and Tamez, 11
S.W.3d at 201). The trial court’s denial of the motion to exclude meant that the
State could not use Lindgren’s conditional stipulation before the jury; it needed to
present evidence in its case-in-chief to prove Lindgren’s two prior convictions.
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See Gibson v. State, 995 S.W.2d 693, 696 (Tex. Crim. App. 1999) (observing, in
DWI case, that “[t]he prior intoxication-related offenses are elements of the
offense of driving while intoxicated [defined under section 49.09(b) of the Texas
Penal Code]. They define the offense as a felony and are admitted into evidence as
part of the State’s proof of its case in chief during the guilt-innocence stage of the
trial.”).1
“To establish that a defendant has been convicted of a prior offense, the
State must prove beyond a reasonable doubt that (1) a prior conviction exists, and
(2) the defendant is linked to that conviction.” Flowers v. State, 220 S.W.3d 919,
921 (Tex. Crim. App. 2007). While not the only way to prove a prior conviction,
evidence of a certified copy of the final judgment and sentence is generally a
“preferred and convenient means” of proof, id. at 921–22, which is what happened
here. We hold that the trial court did not abuse its discretion in admitting the
certified copies of the prior convictions.
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Lindgren does not appeal the trial court’s ruling on his motion to exclude.
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Conclusion
We hold that legally sufficient evidence supports the judgment and that the
trial court did not err in admitting evidence of Lindgren’s two prior theft
convictions. We therefore affirm the judgment of the trial court. All pending
motions are dismissed as moot.
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b)
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