                             NUMBER 13-14-00096-CR

                                 COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG



PATRICK SHERMAN GUILLORY,                                                             Appellant,

                                                 v.

THE STATE OF TEXAS,                                                                   Appellee.


                       On appeal from the 51st District Court
                           of Tom Green County, Texas.


                             MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Rodriguez and Perkes
              Memorandum Opinion by Justice Perkes1
       Appellant Patrick Sherman Guillory appeals his conviction of theft “less than

$1,500.00”, enhanced by two prior felony convictions to a second-degree felony. See


        1 Pursuant to a docket-equalization order issued by the Supreme Court of Texas, the appeal has

been transferred to this Court from the Third Court of Appeals in Austin, Texas. See TEX. GOV'T CODE
ANN. § 73.001 (West, Westlaw through 2015 R.S.).
TEX. PENAL CODE ANN. § 31.03(a), (b), (e)(4)(D) (West, Westlaw through 2015 R.S.). A

jury found appellant guilty and assessed punishment at twenty years’ confinement in the

Texas Department of Criminal Justice, Institutional Division. By three issues, which we

consolidate into one, appellant argues the evidence was legally insufficient to sustain a

conviction for theft. We affirm.

                                         I.      BACKGROUND

        Appellant was indicted, as follows, for stealing steaks from a Lowe’s Food Basket

in San Angelo, Texas:

               DEFENDANT, on or about the 20th day of May, AD. 2013, and
        before the making and filing of this complaint, in Tom Green County, State
        of Texas, did then and there intentionally and knowingly appropriate, by
        acquiring and otherwise exercising control over tangible property to-wit:
        meat, from the owner Lowe's Grocery Store, without the effective consent
        of the owner, and with intent to deprive the said owner of said property.

The indictment also alleged two prior felony convictions, which appellant pleaded true. 2

        During the trial, Howard Miller, a certified peace officer with the San Angelo Police

Department, testified that hewas working off-duty security at Lowe’s when he observed

appellant pick up “a couple” packages of meat and begin walking quickly towards the front

of the store.     As Miller approached appellant, the meat was no longer visible, but

appellant had a large bulge under his t-shirt, as if something was under his shirt. When

appellant saw Miller, he turned, went back into the store behind a Coca-Cola display, and

made movements which appeared as if he were getting rid of something.




        2 During the trial, the State presented evidence of twelve prior convictions, two of which were the
felony convictions used for enhancement.
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       Miller testified that appellant was close to the front doors and that when he

approached, appellant went down a different aisle. Miller explained “this was a tactic

that is commonly used. It’s a swift: conceal the meat, and get out the doors.” When

Miller confronted appellant, appellant claimed he put the meat back. Miller thereafter

noticed two packages of steaks stuck in the Coca-Cola display.

       Lynn Hess, the store manager of Lowe’s Food Basket, testified that he did not

know appellant, did not recognize appellant, and did not give him permission to take

anything from the store. Hess testified that the meat had to be destroyed due to possible

contamination, as per store policy.

                             II.      SUFFICIENCY OF EVIDENCE

       Appellant contends the evidence was insufficient to prove that he had the requisite

intent to commit a theft. Specifically, appellant argues that because he abandoned the

theft, the State did not show that he committed theft. Instead, appellant claims that the

evidence shows, at most, an attempted theft. We disagree.

A.     Standard of Review

       “The standard for determining whether the evidence is legally sufficient to support

a conviction is ‘whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.’” Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim.

App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307 (1979); see Brooks v. State, 323

S.W.3d 893, 898–99 (Tex. Crim. App. 2010) (plurality op.).          The fact-finder is the

exclusive judge of the credibility of witnesses and of the weight to be given to their


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testimony. Anderson v. State, 322 S.W.3d 401, 405 (Tex. App.—Houston [14th Dist.]

2010, pet. ref'd) (citing Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008)).

Reconciliation of conflicts in the evidence is within the fact-finder's exclusive province.

Id. (citing Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000)). We must resolve

any inconsistencies in the testimony in favor of the verdict. Id. (citing Curry v. State, 30

S.W.3d 394, 406 (Tex. Crim. App. 2000)).

       We measure the sufficiency of the evidence by the elements of the offense as

defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327

(Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997)). Such a charge is one that accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State's burden of proof or unnecessarily

restrict the State's theories of liability, and adequately describes the particular offense for

which the defendant was tried. Id.

       In reviewing the sufficiency of the evidence, we look at “events occurring before,

during and after the commission of the offense and may rely on actions of the defendant

which show an understanding and common design to do the prohibited act.” Guevara v.

State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004) (citations omitted). Each fact need not

point directly and independently to the guilt of the appellant, as long as the cumulative

effect of all the incriminating facts are sufficient to support the conviction. Id. (citing

Alexander v. State, 740 S.W.2d 749, 758 (Tex. Crim. App. 1987) (en banc)).                The

evidence is sufficient if the conclusion of guilt is warranted by the combined and

cumulative force of all the incriminating circumstances. Russell v. State, 665 S.W.2d


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771, 776 (Tex. Crim. App. 1983).

B.     Applicable Law

       A person commits theft if he unlawfully appropriates property with the intent to

deprive the owner of the property. TEX. PENAL CODE ANN. § 31.03(a). A person acts

with intent when it is his conscious objective or desire to engage in the conduct or cause

the result. Id. § 6.03(a) (West, Westlaw through 2015 R.S.). Deprivation is not an

element of intent to deprive; therefore, the State need not prove actual deprivation in order

to prove intent to deprive. Rowland v. State, 744 S.W.2d 610, 612 (Tex. Crim. App.

1988). While evidence of actual deprivation may be evidence of intent to deprive, other

evidence may also indicate whether intent to deprive exists. Id. The intent to deprive is

determined from the words and acts of the accused. Roberson v. State, 821 S.W.2d

446, 447 (Tex. App.—Corpus Christi 1991, pet. ref’d). Criminal intent is necessary to

establish theft. See Ellis v. State, 877 S.W.2d 380, 383 (Tex. App.—Houston [1st Dist.]

1994, pet. ref'd). Therefore, as applied in this case, appellant committed the offense of

theft as authorized by the indictment if he appropriated the steaks “without the owner's

effective consent” and “with intent to deprive the owner of the property.” TEX. PENAL

CODE ANN. § 31.03(a), (b)(1).

C.     Discussion

       During the trial, the jury heard testimony that appellant acted in a suspicious

manner, picked up the steaks, and hid them under his pants and shirt. Appellant headed

for the store’s exit and when Miller approached, went in a different direction and

purportedly hid the steaks in a store display.       The jury also heard testimony that


                                             5
appellant, when detained, was evasive and nervous.

       The record clearly reflects that appellant committed theft, rather than attempted

theft.3 The State was required to prove that appellant intended to deprive the owner of

the property. A jury could reasonably infer appellant’s intent to deprive from the manner

in which appellant concealed the steaks under his shirt or pants and attempted to leave

the store. Furthermore, the manner in which he attempted to conceal his act by hiding

the steaks in the display shows an intent to deprive.                When questioned by Miller,

appellant falsely claimed that he “put the steaks back” but instead, hid them in the store

display. See Roberson, 821 S.W.2d at 448 (concluding evidence sufficient to show

intent to deprive where defendant concealed a shirt in a shopping bag, took the shopping

bag into the restroom, and removed an electronic tag from the shirt).

       We conclude that the cumulative force of the evidence is sufficient to lead a rational

trier of fact to believe that appellant committed the offense of theft. See Coronado v.

State, 508 S.W.2d 373, 374 (Tex. Crim. App. 1974) (explaining that specific intent can be

inferred from the surrounding circumstances); Rowland, 744 S.W.2d at 612. We reject

appellant’s arguments that he abandoned the theft, or alternatively, that he could only

guilty of attempted theft. See Barnes v. State, 513 S.W.2d 850, 851 (Tex. Crim. App.

1974) (holding defendant who took possession and control of car by entering it and

starting motor, with his hands on steering wheel with obvious intent to drive it away, was

guilty of felony theft of car although he was interrupted before he had time to abscond


       3 The Texas Code of Criminal Procedure defines the offense of criminal attempt: “[a] person

commits an offense if, with specific intent to commit an offense, he does an act amounting to more than
mere preparation that tends but fails to effect the commission of the offense intended.” TEX. CODE CRIM.
PROC. ANN. Art. 15.01(a) (West, Westlaw through 2015 R.S.).
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with it); Hawkins v. State, 214 S.W.3d 668, 670 (Tex. App.—Waco 2007, no pet.) (holding

evidence sufficient to prove theft when appellant climbed over hardware store fence,

picked up roll of barbed wire, but dropped it when startled by employee). We overrule

appellant’s issue.

                                   III.   CONCLUSION

       We affirm the trial court’s judgment.


                                                   GREGORY T. PERKES
                                                   Justice

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

Delivered and filed the
29th day of October, 2015.




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