                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-11-00223-CR

CURTIS GOSS,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                            From the 40th District Court
                                Ellis County, Texas
                              Trial Court No. 35302CR


                           MEMORANDUM OPINION


       A jury found Appellant Curtis Goss guilty of the state jail felony offense of theft

of wire and assessed his punishment, enhanced by previous felony convictions, at

twelve years’ confinement. This appeal ensued. In his sole issue, Goss contends that

the evidence is insufficient to support his conviction. We will affirm.

       The Court of Criminal Appeals has expressed our standard of review of a

sufficiency issue as follows:

             In determining whether the evidence is legally sufficient to support
       a conviction, a reviewing court must consider all of the evidence in the
          light most favorable to the verdict and determine whether, based on that
          evidence and reasonable inferences therefrom, a rational fact finder could
          have found the essential elements of the crime beyond a reasonable doubt.
          Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
          13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the
          responsibility of the trier of fact fairly to resolve conflicts in the testimony,
          to weigh the evidence, and to draw reasonable inferences from basic facts
          to ultimate facts." Jackson, 443 U.S. at 319. "Each fact need not point
          directly and independently to the guilt of the appellant, as long as the
          cumulative force of all the incriminating circumstances is sufficient to
          support the conviction." Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), cert. denied, 132 S.Ct. 2712

(2012).

          The Court of Criminal Appeals has also explained that our review of "all of the

evidence" includes evidence that was properly and improperly admitted. Conner v.

State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Jackson, 443 U.S. 307 at 326.

Further, direct and circumstantial evidence are treated equally:                 "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." Hooper, 214 S.W.3d at

13. Finally, it is well established that the factfinder is entitled to judge the credibility of

witnesses and can choose to believe all, some, or none of the testimony presented by the

parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

          A person commits a theft offense if he unlawfully appropriates property with

intent to deprive the owner of property. TEX. PENAL CODE ANN. § 31.03(a) (West Supp.

2012). As relevant here, appropriation of property is unlawful if it is without the

Goss v. State                                                                                 Page 2
owner’s effective consent. Id. § 31.03(b)(1). To “appropriate” means to acquire or

otherwise exercise control over property other than real property. Id. § 31.01(4) (West

Supp. 2012). At the time this incident occurred, a theft offense was a state jail felony if

the value of the property stolen was less than $20,000 and the property stolen was

insulated or noninsulated wire or cable that consisted of at least fifty percent copper.

Act of May 15, 2007, 80th Leg., R.S., ch. 304, 2007 Tex. Gen. Laws 580, 581, amended by

Act of May 23, 2009, 81st Leg., R.S., 2009 Tex. Gen. Laws 804, 805.

        The evidence presented at trial was as follows: James Sturm testified that on

June 24, 2010, he was working for Sunrise Personnel at Gerdau Ameristeel. As the front

loader, he would load scrap metal into a “hopper,” which would then go up a conveyor

belt to a “picking station.” At the picking station, about eight people would hand pick

through the material, separating copper, aluminum, etc., by throwing it into chutes that

led to separate bins underneath. Sturm observed some of the workers at the picking

station taking copper from the picking station to the break room, located about “half a

football field” away, in small cardboard boxes and loading them into bags. It took

several trips to fill the bags. Sturm did not know Goss’s name but identified him at trial

as one of the people he saw taking the copper from the picking station and putting it

into bags.

        Sturm notified his supervisor, Jay Johnson, who “stood back and watched

everything taking place” and then alerted security. Sturm identified State’s Exhibits 1

and 2 as photographs of the bags that he saw the copper being put into that night.

Goss’s bag was the blue backpack shown in Exhibit 1. When Goss came in with the

Goss v. State                                                                        Page 3
backpack that day, it did not appear to be heavy and full of copper. When the workers

left at the end of the shift, he could tell that the bags were “pretty heavy” because of the

way they were walking.

        Johnson testified that he told two of his employees to check in the break room

and inspect the bags. They told Johnson that there was copper in the backpacks, so he

contacted the guard shack about the theft. The copper used at Gerdau Ameristeel and

on the conveyer belt at the picking station is “number one copper,” which is fifty

percent or more copper. The coiled copper wiring that was found in the bags was also

number one copper.

        Troy Wilson testified that he was working at Gerdau Ameristeel through Sunrise

Personnel on June 24, 2010. Johnson told him that some materials were being moved to

the break room and sent him there to look for boxes with copper in them. He did not

find any boxes, but he found the backpacks shown in State’s Exhibits 1 and 2. He

opened them up and found a lot of copper in them. The copper is high grade, probably

ninety percent or more pure. Copper processed through Gerdau Ameristeel can be

valued at up to $8,000 per ton. Wilson took some pictures, zipped the bags back up,

and left them where they were. He then notified Johnson that copper was being taken

out. The value of the copper in the bags was more than zero and less than $20,000.

        Tim Nazworth, a paramedic and security guard for Gerdau Ameristeel, testified

that he was working the main gate on the night of June 24, 2010. He got a call that

prompted him to stop the Sunrise Personnel van when it was leaving. He was looking

for copper. He asked for consent to search the vehicle, and those in the van consented.

Goss v. State                                                                         Page 4
Nazworth searched through all the bags on the van and found two bags loaded full of

copper. Those bags are shown in State’s Exhibits 1 and 2. When asked to whom the

bags belonged, Goss stated that one of the bags was his. Nazworth then called the

Midlothian Police Department.

        Nazworth stated that at no time did he give Goss permission to take any copper

from Gerdau Ameristeel. He is not aware of anyone giving Goss permission to take

copper from Gerdau Ameristeel.

        James McGilber testified that he is a recruiter and driver for Sunrise Personnel.

On June 24, 2010, Goss was one of the workers he took to Gerdau Ameristeel to work.

Goss had a blue backpack with him, the one shown in State’s Exhibit 1, when he arrived

to get into the van to go to Gerdau Ameristeel that night. The backpack did not appear

to be loaded down or weighted down at that time. When McGilber returned to pick up

the workers, he noticed that the long black bag, shown in State’s Exhibit 2, appeared to

be heavy, and he warned the workers that they would go to jail if they were caught

stealing. When they got to the guard station, the van was stopped and searched. They

found two bags loaded down with Gerdau Ameristeel’s materials. Goss claimed one of

the bags, the one shown in State’s Exhibit 1. McGilber stated that the bag appeared to

be heavier than when he had seen it earlier in the day.

        Officer Daron Ehly with the Midlothian Police Department testified that he was

called to Gerdau Ameristeel on June 24, 2010 because of an alleged theft. When he

arrived, he saw copper in two bags, the bags shown in State’s Exhibits 1 and 2. He

asked to whom the bags belonged, and Goss claimed the blue backpack shown in

Goss v. State                                                                      Page 5
State’s Exhibit 1. Another individual claimed the other bag. When Ehly talked to Goss

about where the copper came from, Goss explained that he had found it on his way to

work on the side of the road. After also talking to the driver of the van, the security

guards, and the person who claimed the other bag, Ehly concluded that an offense was

being committed, so he arrested Goss and the other individual claiming the other bag.

        Goss testified in his own defense. Goss had been working for Sunrise Personnel

for two days when he was arrested at Gerdau Ameristeel. Goss denied carrying any

copper to the break room and denied knowing anything about anyone carrying copper

in cardboard boxes to the break room. Goss stated that he only went to the break room

when the manager told them it was break time, which he thinks was three times. Goss

agreed that he claimed a bag after the search of the van but said that it was neither of

the bags shown in State’s Exhibits 1 and 2. He claimed a black bag that contained his

lunch, as well as copper and metal that he had found over at Sunrise Personnel. When

he was walking around near Sunrise Personnel waiting for McGilber to take them to

Gerdau Ameristeel, he saw several pieces of metal and picked them up and put them in

his backpack. His backpack did not have as much in it as those shown in State’s

Exhibits 1 and 2. He only had about seven pieces of metal in his bag. The other man,

Tony Sprull, had two bags, and Goss was present when Sprull admitted to the officer

that he had stolen the copper. Goss only knew Sprull through the job, so Goss had only

known Sprull for two days.

        The State recalled Ehly on rebuttal.   A recording from his patrol car was

admitted. Ehly stated that he is certain that the blue backpack shown in State’s Exhibit

Goss v. State                                                                     Page 6
1 is the same backpack Goss admitted was his several times on the video. The backpack

weighed about fifty pounds. Goss told him that he had picked up the copper on the

way to work.

          Goss argues that the foregoing evidence is insufficient to support his conviction

because he denied committing the offense, Sprull admitted the entire act, and the State’s

witnesses could not have witnessed what they testified to. By finding Goss guilty,

however, the jury obviously believed the testimony from the State’s witnesses and did

not believe Goss’s testimony. The jury is the exclusive judge of the facts, the credibility

of the witnesses, and the weight to be given to the witnesses’ testimony. Jaggers v. State,

125 S.W.3d 661, 672 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (citing Penagraph v.

State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981)). A jury may believe all, some, or none

of any witness’s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).

As the reviewing court, we “should not substantially intrude upon the jury’s role as the

sole judge of the weight and credibility of witness testimony.” Vasquez v. State, 67

S.W.3d 229, 236 (Tex. Crim. App. 2002); see also Sharp, 707 S.W.2d at 614. We must defer

to the jury’s determination concerning what weight to give the contradictory

testimonial evidence. See, e.g., In re A.B., 133 S.W.3d 869, 873-74 (Tex. App.—Dallas

2004, no pet.); Scugoza v. State, 949 S.W.2d 360, 362-63 (Tex. App.—San Antonio 1997, no

pet.); Fetterolf v. State, 782 S.W.2d 927, 933 (Tex. App.—Houston [14th Dist.] 1989, pet.

ref’d).




Goss v. State                                                                        Page 7
        Viewing all the evidence in the light most favorable to the verdict, we conclude

that the evidence is sufficient to support Goss’s conviction. We overrule Goss’s sole

issue and affirm the trial court’s judgment.




                                                REX D. DAVIS
                                                Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed October 25, 2012
Do not publish
[CR25]




Goss v. State                                                                     Page 8
