Opinion filed May 16, 2013




                                       In The


        Eleventh Court of Appeals
                                      __________


                                No. 11-11-00136-CR
                                      _________

                 JAMES ALBERT EDWARDS, Appellant
                                          V.
                     THE STATE OF TEXAS, Appellee


                    On Appeal from the 106th District Court
                                Dawson County, Texas
                             Trial Court Cause No. 10-7030



                     MEMORANDUM OPINION
      The jury convicted James Albert Edwards of the state jail felony offense of
theft. See TEX. PENAL CODE ANN. § 31.03(a), (b)(1), (e)(4)(D) (West Supp. 2012).
Appellant elected to have the trial court assess his punishment. Appellant pleaded
true to two enhancement allegations.       The trial court found the enhancement
allegations to be true, and it sentenced Appellant to confinement for a term of ten
years and a $2,000 fine. We affirm.
                                     Background
      A theft offense is a state jail felony if the value of the property stolen is less
than $1,500 and if the defendant has been previously convicted two or more times
of any grade of theft. PENAL § 31.03(e)(4)(D). In this case, the indictment alleged
that Appellant unlawfully appropriated, by acquiring and otherwise exercising
control over, six joints of steel tubing, of the value of $50 or more but less than
$500, from the owner of the property, Dominga Hernandez, without her effective
consent and with the intent to deprive her of the property. The indictment also
alleged that Appellant had two prior theft convictions. At trial, the State presented
evidence of Appellant’s two prior theft convictions, and Appellant admitted that he
had the prior convictions.
      At trial, Appellant admitted that he took the six joints of steel tubing, which
were also referred to as “pipe” during testimony. However, Appellant testified that
he believed the pipe belonged to a man named Lupe Ramierez and that Lupe
Ramirez asked him to move the pipe. Therefore, Appellant raised the defense of
mistake of fact as to the owner of the property. See PENAL § 8.02 (West 2011).
The trial court submitted mistake-of-fact instructions to the jury, including an
instruction that “it is a defense to prosecution that a person through mistake formed
a reasonable belief about a matter of fact if his mistaken belief negated the kind of
culpability required for the commission of the offense.” See id. § 8.02(a).
                                   Issue on Appeal
      In his sole appellate issue, Appellant challenges the sufficiency of the
evidence to support his conviction.        Specifically, Appellant argues that the
evidence was insufficient to establish that he intended to deprive the owner,
Hernandez, of the pipe.




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                            Sufficiency of the Evidence
      We review the sufficiency of the evidence under the standard of review set
forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d
893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex.
App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we examine all of
the evidence in the light most favorable to the verdict and determine whether,
based on that evidence and any reasonable inferences from it, any rational trier of
fact could have found the essential elements of the offense beyond a reasonable
doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim.
App. 2010).
      Mistake of fact is a defense to prosecution under the Penal Code. PENAL
§§ 2.03, 8.02 (West 2011). It is not an affirmative defense upon which the
defendant bears the burden of proof. See id. § 2.04; see also Saxton v. State, 804
S.W.2d 910, 913–14 (Tex. Crim. App. 1991) (distinguishing defensive claims up-
on which the State bears the burden of persuasion and affirmative defenses upon
which the defendant bears the burden of proof); see also Matlock v. State, 392
S.W.3d 662 (Tex. Crim. App. 2013) (explaining legal and factual sufficiency
standards of review that apply to a jury’s rejection of an affirmative defense).
Once a defendant produces some evidence that supports a mistake-of-fact defense,
the State has the burden of persuasion to disprove the defense. Zuliani v. State, 97
S.W.3d 589, 594 (Tex. Crim. App. 2003); Saxton, 804 S.W.2d at 913–14; see
PENAL § 2.03. The burden of persuasion does not require production of evidence.
Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 913. Rather, the burden of
persuasion requires only that the State prove its case beyond a reasonable doubt.
Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 914; Smith v. State, 355 S.W.3d
138, 144 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). A jury’s finding of
guilty is an implicit finding against the defensive theory. Zuliani, 97 S.W.3d at
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594. When an appellant’s sufficiency claim involves the defense of mistake of
fact, we must view all of the evidence in the light most favorable to the verdict and
determine whether any rational trier of fact could have found against the appellant
on the mistake-of-fact issue beyond a reasonable doubt. Saxton, 804 S.W.2d at
914.
       In conducting a sufficiency review, we are required to defer to the jury’s
credibility and weight determinations because the jury is the sole judge of the
witnesses’ credibility and the weight to be given their testimony. Merritt v. State,
368 S.W.3d 516, 525 (Tex. Crim. App. 2012); Brooks, 323 S.W.3d at 899.
       Hernandez was employed by the Dawson County Adult Probation Office.
On August 12, 2010, she went home during her lunch break from her job. As she
drove by the alley that was behind her house, she saw a man loading pipe onto a
trailer that was attached to a blue SUV. Hernandez testified that her husband had
purchased the pipe from his employer. The pipe was located next to Hernandez’s
backyard fence, on the alley side of the fence. The pipe consisted of six joints of
2 7/8 inch steel tubing, each of which was about fifty feet long. Hernandez and her
husband had agreed to give the pipe to their friend, Angel Acosta, in exchange for
concrete work that he had done at their house.
       Hernandez drove her car into her garage. She then made some phone calls
in an effort to determine whether Acosta had arranged for the man in the alley to
pick up the pipe for him. Acosta’s sister-in-law told Hernandez that she did not
believe that Acosta had made such an arrangement. Hernandez went into her
backyard.   At that time, the man who had been loading the pipe was gone.
Hernandez knew that two local businesses purchased pipe. She first went to Brock
Steel but did not see the blue SUV and trailer there. She then went to Goolsby
Brothers Pipe & Steel Company, where she saw the blue SUV and trailer.
Hernandez knew Appellant and saw that he was driving the SUV. Appellant
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waved at Hernandez and then drove off. Hernandez testified that she did not give
Appellant permission to take the pipe.
      Hernandez talked with Royce Goolsby. She told him that Appellant had just
taken the pipe from her house without her permission. Goolsby told Hernandez
that he was going to find Appellant so that he could get his money back.
Hernandez said that the pipe had a value of between $50 and $500. After talking
with Goolsby, Hernandez went home and then called the police.
      Later that afternoon, Hernandez went back to work. She testified that
Appellant came to see her about ten minutes after she returned to work. Hernandez
testified that Appellant told her that, “if [he] would have known that was [her]
pipe, [he] never would have taken it.” Appellant also told Hernandez that “Lupe
Ramirez told [him he] could have it.” Hernandez said that she told Appellant,
“Well, Lupe Ramirez doesn’t live there.”
      Goolsby testified that his business paid Appellant $102 for the pipe.
Goolsby said that Hernandez came into his business and asked him whether
Appellant had sold him some pipe. He told Hernandez that Appellant had sold
some pipe. Goolsby testified that Hernandez told him that the pipe belonged to
her. Goolsby got his money back from Appellant and held onto the pipe for
Hernandez. Later, Acosta picked up the pipe from Goolsby’s business.
      Hernandez made a theft report to Lamesa Police Officer Adrian Casias.
Officer Casias prepared an initial report and then turned the case over to Lamesa
Police Detective Ariel Rodriguez for investigation. Detective Rodriguez testified
that Hernandez told him that Appellant took the pipe without her permission. On
August 13, 2010, Appellant gave Detective Rodriguez a written statement.
Appellant stated in the statement that Lupe Ramirez told him that he had “some
pipe that needed to be removed,” that Lupe Ramirez told him the pipe was located
“behind the alley outside of a fence beside the Rodriguez Store off of South 3rd
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Street,” and that “[he] removed them for [Lupe Ramirez].” Appellant also stated
that he later found out that the pipe was stolen. Appellant told Detective Rodriguez
that Lupe Ramirez was Hispanic. Detective Rodriguez testified that there were
several Lupe Ramirezes in the area.        Detective Rodriguez said that he asked
Appellant for more identifying information about Lupe Ramirez but that Appellant
never provided him any additional information.
      Detective Rodriguez testified that Goolsby told him that the resale value of
the pipe was $40 to $45 per joint. Detective Rodriguez took pictures of the pipe,
and those pictures were admitted into evidence.
      Appellant testified that he did not intend to steal property from anybody. He
testified that he did volunteer work at the senior citizens center in Lamesa. He said
that he met Lupe Ramirez at the center. Appellant described Ramirez as being “a
little bit taller than [Appellant], kind of an older guy, probably about 61, 62 years
old, dark-complected.” According to Appellant, Lupe Ramirez asked Appellant if
he would move some pipe for him. Appellant said that Lupe Ramirez told him that
the pipe belonged to him, that the pipe was on his property, and that he needed the
pipe moved so that he could mow in the alley. Appellant drove into the alley. He
said that he found the pipe in the location that Lupe Ramirez had described.
Appellant said that the pipe was outside the fence of a backyard. He testified that
each pipe was a “good 60-foot” long and that he loaded the pipe onto a trailer. He
said that he saw Hernandez drive by when he was in the alley. Appellant said that
he knew Hernandez because he was on probation. Appellant testified that he was
in the alley for forty-five minutes to an hour loading the pipe.
      Appellant said that he went to Goolsby’s business after he loaded the pipe.
He said that he had known Goolsby for about twenty years. Appellant said that
Goolsby paid him $102 for the pipe and that he intended to give $78 of that money
to Lupe Ramirez. Appellant testified that he saw Hernandez when he was at
                                          6
Goolsby’s business. He said that he waved at her and that he did not try to run or
to hide from her. He testified that, later that day, Goolsby found him and told him
the pipe was stolen. Appellant said that he gave Goolsby his money back.
      Appellant testified that he did not know Acosta. Appellant said that he took
the pipe because of what Lupe Ramirez had told him. He said that he gave
Detective Rodriguez a physical description of Lupe Ramirez “off the jump.”
Appellant said that he told Detective Rodriguez how tall Lupe Ramirez was and
how much he weighed. Appellant also said that he told Detective Rodriguez that
Lupe Ramirez hung out at the senior citizens center.
      Appellant said that, later, he told Lupe Ramirez that the pipe was stolen.
Appellant testified that Lupe Ramirez again said that the pipe belonged to him.
Appellant said that he told Lupe Ramirez to talk to Detective Rodriguez.
According to Appellant, Lupe Ramirez said that he was going to a Veterans
Administration hospital in Arizona.
      Hernandez testified that Appellant took the pipe without her permission. To
support his defense, Appellant relied on his testimony that a man named Lupe
Ramirez asked him to move the pipe. As the sole judge of the credibility of the
witnesses, the jury was free to disbelieve Appellant’s testimony. Sharp v. State,
707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Polk, 337 S.W.3d at 289.
Appellant’s testimony about Lupe Ramirez was similar to what Appellant had
previously told Detective Rodriguez. Appellant also told Hernandez that Lupe
Ramirez said that he could have the pipe. The jury may have believed that
Appellant made up the entire story about Lupe Ramirez.
      Appellant asserts that his conduct was consistent with his belief that Lupe
Ramirez owned the pipe. Appellant did not attempt to hide his activities related to
the pipe. He loaded the pipe in broad daylight, and he used his real name when he
sold the pipe to Goolsby’s business. While Appellant contends that this evidence
                                         7
supported his mistake-of-fact defense, the jury may have believed that Appellant
loaded the pipe in the middle of the day in an effort to avoid suspicion and that
Appellant did not believe anyone driving by the scene would think he was stealing
the pipe. An appellate court may not reevaluate the weight and credibility of the
record evidence and thereby substitute its judgment for that of the jury.
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
      Based on the evidence, the jury could have reasonably concluded that
Appellant intended to deprive Hernandez of the pipe. Viewing all the evidence in
the light most favorable to the verdict, we conclude that a rational trier of fact
could have found the essential elements of the offense beyond a reasonable doubt
and that a rational trier of fact also could have found against Appellant on his
mistake-of-fact defense beyond a reasonable doubt. Therefore, the evidence was
sufficient to support Appellant’s conviction. Appellant’s sole issue on appeal is
overruled.
                                   This Court’s Ruling
      We affirm the judgment of the trial court.




                                                     TERRY McCALL
                                                     JUSTICE


May 16, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




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