                                NO. 12-07-00216-CR

                       IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                   TYLER, TEXAS

DWIGHT DANIEL GIPSON,                            §            APPEAL FROM THE 217TH
APPELLANT

V.                                               §            JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,
APPELLEE                                         §            ANGELINA COUNTY, TEXAS


                                  MEMORANDUM OPINION
       Dwight Daniel Gipson appeals his conviction for theft. In three issues, he argues that the
evidence was legally and factually insufficient to support the conviction and that the testimony of
a coconspirator was insufficiently corroborated. We affirm.


                                          BACKGROUND
       Two people stole a load of copper from a metal recycling company in Lufkin, Texas early
one morning. The theft was captured on video, but the images were not sufficiently clear to allow
identification of the burglars. Several hours later, Rollie Ray Skinner attempted to sell the copper
in Houston, Texas. He was driving a truck rented by Laura Davis, his common law wife. Appellant
was with Davis and Skinner in the truck. The manager at the first place Skinner tried to sell the
copper suspected that it had been stolen and called the police. The police came, but they released
Skinner, Davis, and Appellant. The three immediately went to another scrap yard to sell the copper.
The police were called again. This time they were able to connect the copper, which was in an
unusual configuration, to the burglary in Lufkin that morning. The police arrested Skinner,
Appellant, and Davis. Appellant told the police that he had nothing to do with the burglary of the
copper. Instead, he told them that he had simply been on the street in Houston, though he lived in
Lufkin, early that morning when Skinner, whom he knew, hired him to help unload the copper. The
jury did not believe Appellant and convicted him of theft under the theory that he possessed stolen
goods or aided another in the possession of stolen goods. This appeal followed.


                                    SUFFICIENCY OF THE EVIDENCE
          In his first and second issues, Appellant argues that the evidence is legally and factually
insufficient to support the conviction. Specifically, he argues that there is insufficient evidence to
show that he possessed the stolen copper or that he was liable as a party for possession of the stolen
copper.
Standards of Review
          The due process guarantee of the Fourteenth Amendment requires that a conviction be
supported by legally sufficient evidence. See Jackson v. Virginia, 443 U.S. 307, 315–16, 99 S. Ct.
2781, 2786–87, 61 L. Ed. 2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex. Crim. App.
2004); Willis v. State, 192 S.W.3d 585, 592 (Tex. App.–Tyler 2006, pet. ref’d). Evidence is not
legally sufficient if, when viewing the evidence in a light most favorable to the verdict, we conclude
that no rational trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; see also Johnson v. State, 871
S.W.2d 183, 186 (Tex. Crim. App. 1993).
          While legal sufficiency review is all that is required by the U.S. Constitution, the Texas Court
of Criminal Appeals has determined that the Texas Constitution requires review of the factual
sufficiency of the evidence. Clewis v. State, 922 S.W.2d 126, 129–30 (Tex. Crim. App. 1996). We
review the factual sufficiency of the evidence to determine whether, considering all the evidence in
a neutral light, the evidence supporting the conviction is too weak to withstand scrutiny or the great
weight and preponderance of the evidence contradicts the jury’s verdict to the extent that the verdict
is clearly wrong and manifestly unjust. See Watson v. State, 204 S.W.3d 404, 414–15, 417 (Tex.
Crim. App. 2006). In doing so, we must first assume that the evidence is legally sufficient under the
Jackson v. Virginia standard. See Clewis v. State, 922 S.W.2d at 134. We then consider all of the
evidence that tends to prove the existence of the elemental fact in dispute and compare it to the


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evidence that tends to disprove that fact. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim.
App. 1997).

         Our role is that of appellate review, and the fact finder is the judge of the weight and
credibility of a witness’s testimony. Wesbrook v. State, 29 S.W.3d 103, 111–12 (Tex. Crim. App.
2000). The fact finder may choose to believe all, some, or none of a witness’s testimony. Sharp v.
State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When we review the factual sufficiency of the
evidence, we are authorized to disagree with the jury’s determination, even if probative evidence
exists that supports the verdict. See Clewis, 922 S.W.2d at 133. But our evaluation should not
substantially intrude upon the jury’s role as the judge of the weight and credibility of witness
testimony. See Santellan, 939 S.W.2d at 164.

Analysis

         The State was required to prove that Appellant, either individually or as a party, exercised
control over the stolen copper without the effective consent of the owner and with the intent to
deprive the owner of the property. TEX . PENAL CODE ANN . §§ 31.03(a), (b)(1), 31.01(4) (Vernon
Supp. 2007). A person is criminally responsible for the actions of another if “acting with the intent
to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts
to aid the other person to commit the offense.” TEX . PENAL CODE ANN . § 7.02(a)(2) (Vernon Supp.
2007).

         Appellant argues there is no evidence that he acted as a party to the offense or that he
exercised control over the copper individually. With respect to the legal sufficiency of the evidence,
Appellant argues that only Davis’s trial testimony links him to the offense. Appellant does not
explain why her testimony cannot be considered with respect to the sufficiency of the evidence. In
fact, both her testimony and the time line of the theft indicate that Appellant’s claim that he was
simply hired labor was not true. Appellant claimed that he was hired to unload the truck. But he
said he was hired in Houston at about the same time the actual theft was occurring. This cannot be
true, and Davis testified that it was not. Instead, she said that Appellant was with Skinner when she
was picked up and that the copper was already in the truck, although she denied that she knew that
it was there.


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       But the discrediting of the story Appellant told to the police does not prove the State’s case
by itself. Appellant’s statement to the police does, however, show that his purpose in the truck was
to exercise control over the copper, at least to the extent that he would have been unloading it. It
also established that he was there to assist Skinner. In addition, at least two people stole the copper,
and the jury may have concluded that it was Appellant and Skinner who did so, although they
acquitted the men of charges related to the burglary.

       The evidence of possession and that Appellant aided Skinner is circumstantial. Davis said
Skinner and Appellant were friends. The two men were together in the truck, though Skinner was
clearly in charge, and he did all the negotiating to sell the copper. Appellant’s exculpatory
explanation is implausible and demonstrably false. And the kernel of his explanation, that he was
there to assist Skinner, actually implicates him in the charged offense.

       After considering all of the evidence, we conclude that the jury could have reasonably found
that Appellant was working to assist Skinner with his possession of the stolen copper. Appellant’s
own statement indicates that he was helping Skinner, and the jury was not obligated to believe that
he had simply been hired as unwitting labor. Viewing the evidence in a 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. Furthermore, we conclude that, after considering all the
evidence without the light most favorable to the verdict, the evidence supporting the conviction is
not so weak or contradicted that the conviction is clearly wrong and manifestly unjust. We overrule
Appellant’s first and second issues.



                                     ACCOMPLICE TESTIMONY

       In his third issue, Appellant argues that there was not sufficient nonaccomplice evidence to
link him to the offense.

Applicable Law

       A conviction may not be sustained on the testimony of an accomplice unless there is other
evidence “tending to connect a defendant to the offense committed.” TEX . CODE CRIM . PROC. ANN .


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art. 38.14 (Vernon Supp. 2007); Simpson v. State, 181 S.W.3d 743, 753 (Tex. App.–Tyler 2005, pet.
ref’d). This other evidence need not directly connect the defendant to the crime or be sufficient by
itself to establish guilt, but it must do more than merely show the commission of the offense. TEX .
CODE CRIM . PROC. ANN . art. 38.14; Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007).
The corroboration requirement is fulfilled if the combined weight of the nonaccomplice evidence
tends to connect the defendant to the offense. Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim.
App. 1999). The corroborating evidence may consist of circumstantial evidence. Gosch v. State,
829 S.W.2d 775, 777 (Tex. Crim. App. 1991).

       To evaluate whether there is sufficient corroborating evidence, we eliminate the accomplice
testimony from our consideration and examine the record to ascertain whether the remaining
evidence tends to connect the defendant with the offense. Castillo, 221 S.W.3d at 691. The
accomplice witness rule is a statutorily imposed sufficiency review and is not derived from federal
or state constitutional principles that are the basis for the legal and factual sufficiency standards.
Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002).

Analysis

       Sufficient evidence tends to connect Appellant to this offense. He was in the truck with
Skinner and the stolen copper and went with him on two attempts to sell the copper. Appellant was
not simply a passenger; he admitted that he was there to help Skinner unload the copper. While the
accused’s mere presence in the company of the accomplice before, during, or after the commission
of the offense is insufficient by itself to corroborate the testimony, evidence of such presence,
coupled with other suspicious circumstances, may tend to connect the accused to the offense.
Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996). Such suspicious circumstances are
present here. Appellant told the police a story about his involvement that was not true. He said that
he had been hired by Skinner early that morning on the streets of Houston to unload the truck. This
is suspicious because there is no obvious reason that Skinner needed any help to unload the truck,
and because the time Appellant said he was hired was approximately the same time the copper was
being stolen. The jury could have reasonably concluded that Skinner and the copper could not be
in two places at the same time. We overrule Appellant’s third issue.


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                                                      DISPOSITION

         Having overruled Appellant’s three issues, we affirm the judgment of the trial court.




                                                                    BRIAN HOYLE
                                                                       Justice




Opinion delivered May 30, 2008.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                (DO NOT PUBLISH)




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