                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-14-00145-CR



          MARK HINTON O’NEAL, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 123rd District Court
                Panola County, Texas
             Trial Court No. 2013-C0383




      Before Morriss, C.J., Moseley and Burgess, JJ.
        Memorandum Opinion by Justice Burgess
                                MEMORANDUM OPINION
       Mark Hinton O’Neal was convicted by a jury of theft of property in an amount of

$1,500.00 or more but less than $20,000.00.          He was sentenced to twenty-four months’

confinement in a state jail facility and was ordered to pay a $3,000.00 fine. In a single point of

error, O’Neal argues on appeal that the evidence was legally insufficient to support his

conviction. Because we find that the jury’s verdict of O’Neal’s guilt was supported by legally

sufficient evidence, we affirm the trial court’s judgment.

I.     Standard of Review

       In evaluating legal sufficiency, we review all the evidence in the light most favorable to

the jury’s verdict to determine whether any rational jury could have found beyond a reasonable

doubt that O’Neal was guilty of theft of property in an amount of $1,500.00 or more but less than

$20,000.00. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v.

Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—

Texarkana 2010, pet. ref’d) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007)). Our rigorous legal sufficiency review focuses on the quality of the evidence presented.

Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We examine legal sufficiency under the

direction of the Brooks opinion, while giving deference to the responsibility of the jury “to fairly

resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing

Jackson, 443 U.S. at 318–19).




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        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 hypothetically correct jury charge “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.

        Here, the State alleged that on or about April 17, 2013, O’Neal unlawfully appropriated

both diesel fuel and oil from owner Weiner Trinity in an amount of $1,500.00 or more but less

than $20,000.00, with intent to deprive Trinity of the property. See TEX. PENAL CODE ANN.

§ 31.03(a) (West 2011). Thus, the State had to prove that (1) O’Neal, (2) with intent to deprive

Trinity of the fuel and oil, (3) unlawfully appropriated them (4) without Trinity’s effective

consent. See id.; see also Ehrhardt v. State, 334 S.W.3d 849, 853 (Tex. App.—Texarkana 2011,

pet. ref’d). With the elements of the offense in mind, we examine the record to determine

whether the State met its burden of proof.

II.     The Evidence

        The State’s key witness at trial was Mikeal Adams, O’Neal’s drunken accomplice during

the theft. Adams testified that he and O’Neal had both previously worked for Trinity Disposal &

Trucking, LLC, a salt water disposal and trucking company with multiple locations, including

one owned by Weiner Trinity (Weiner Unit). Adams described the events that eventually led to

O’Neal’s arrest and admitted that they both “got caught up stealing diesel” from the company.




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           Adams testified that he became intoxicated at his girlfriend’s house and asked O’Neal to

drive him home. O’Neal arrived in a white Ford pickup truck with a trailer that contained plastic

vessels that are typically used to transport large quantities of water. Adams testified that instead

of dropping him at home, O’Neal drove Adams to the Weiner Unit, hooked a diesel pump to one

of its 3,000-gallon diesel tanks, and filled the vessels on his trailer. Adams, who claimed that he

did not remember the events of the night precisely due to his state of intoxication, testified that

he might have assisted O’Neal in transferring the diesel from the Weiner Unit’s tank to the

plastic containers on O’Neal’s trailer. According to Adams, while they were driving away,

O’Neal called someone on his cell phone and offered to sell the diesel fuel to him. Shortly

thereafter, they were pulled over by a police officer who had initiated a traffic stop. Because he

had an outstanding warrant as a result of his failure to timely pay a speeding ticket, Adams

admitted that he fled O’Neal’s vehicle as soon as the truck came to a stop.

           Christopher Welk, a deputy with the Panola County Sheriff’s Office, testified that on

April 17, 2013, at approximately 4:15 a.m., he stopped a white truck because it was being driven

erratically and because there were no taillights or tag on the trailer. Welk ran the white Ford

truck’s license plate number and learned that the plate belonged to a black Dodge pickup truck.

Welk approached O’Neal and asked him to exit the vehicle.             According to Welk, O’Neal

appeared “overly nervous” and began pacing back and forth from the truck to the rear of the

trailer.

           Welk testified that he observed the large vessels and a fifty-five-gallon drum on the

trailer and became curious of their contents because they were attached by “crude tubing,”

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ratchet straps, tie-downs, and other items not generally used to transport these types of

containers. Welk testified that the leaky plastic vessels contained a liquid that “had an off tint to

it” and smelled “like gasoline of some sort, diesel fuel.” The 300-gallon vessels were marked in

100-gallon increments. Welk also noticed a small pump with twenty-to-thirty feet of hose “that

still had diesel that hadn’t evaporated that was still wet to the touch.” Based on the size of the

vessels and tank, Welk estimated that O’Neal was hauling approximately 700 gallons of fluid, in

addition to the fifty-five-gallon drum that was “fairly full of liquid.” 1 According to Welk, when

asked to explain what he was hauling, O’Neal said that his boss had asked him to pick up the

trailer, which had already been loaded prior to his arrival. However, O’Neal was unable to

describe the location where he had obtained the trailer. Welk arrested O’Neal for placing a

license plate from another truck onto his truck. O’Neal’s truck and trailer were towed, and its

contents were inventoried.

        Investigator James Graham Ferris testified that in addition to the vessels in the trailer,

there was an L-shaped tank in the bed of the truck with an electric diesel pump that carried

approximately 100 gallons of fuel. During the inventory, Ferris verified that the liquid in the

vessels and tank was diesel fuel. Although he did not measure the volume of the diesel fuel,

Ferris estimated a total volume of 700 gallons. He testified that the drum contained an oily

substance, but did not verify the type of substance with certainty. Adams’ wallet was also found

in the truck.



1
Welk’s volume calculation was challenged during cross-examination. He also testified that he was not aware of
what was actually contained in the fifty-five gallon drum.
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           Adams testified that he was stopped for a traffic violation a few days after the incident

and was arrested on the outstanding warrant for failure to pay a speeding ticket. After his arrest,

Adams was contacted and interviewed by Ferris. Adams admitted his involvement and agreed to

assist Ferris and investigator Lanny Joe Mims in pinpointing the location of the Weiner Unit.

           Joe Hawkins, an oil-field consultant and Trinity’s former general manager, testified that

on or about May 7, 2013, he became aware that approximately 900 gallons of diesel fuel and a

drum of oil were missing from the Weiner Unit. According to Hawkins, the price of diesel fuel

at that time was around $3.69 to $3.79 per gallon. Thus, using the lower estimated price, the cost

of 407 gallons of diesel fuel would have exceeded $1,500.00. Hawkins also testified that a fifty-

five-gallon drum of oil cost between $650.00 and $800.00.

           After hearing the evidence, the jury found O’Neal guilty of theft of property in an amount

of $1,500.00 or more but less than $20,000.00.

III.       Analysis

           On appeal, O’Neal argues that the evidence is insufficient because (1) the State failed to

introduce audio or video recordings of the arrest or fingerprint evidence, (2) law enforcement

officers never measured the exact volume of the diesel fuel, (3) Hawkins’ testimony that he did

not notice the missing fuel and oil until May 7, 2013, was insufficient to establish the date of the

theft, and (4) Adams was not a credible witness. 2

           First, the State is not required to introduce specific types of evidence in order to establish

the guilt of an actor, and circumstantial evidence, which has the same probative value as direct


2
    O’Neal does not suggest that Adams’ testimony was not corroborated.
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evidence, can be sufficient to establish guilt on its own. See Jones v. State, 229 S.W.3d 489, 496

(Tex. App.—Texarkana 2007, no pet.). Here, Adams’ testimony unambiguously implicated

O’Neal in the crime. Additionally, if an accused is found in possession of recently stolen

property and, at the time of his arrest, fails to make a reasonable explanation showing his honest

acquisition of the property, the jury may draw an inference of guilt. Rollerson v. State, 227

S.W.3d 718, 725 (Tex. Crim. App. 2007); Poncio v. State, 185 S.W.3d 904, 905 (Tex. Crim.

App. 2006). Welk’s testimony established that O’Neal was in possession of the stolen property

during the traffic stop. Although O’Neal claimed that he was transporting the stolen property at

the request of his boss, Welk testified that he was unable to verify O’Neal’s story and that

O’Neal was unable to describe the particular location of the alleged pick up.         Whether a

defendant’s explanation for possession of recently stolen property is true or reasonable is an

issue to be determined by the trier of fact. Dixon v. State, 43 S.W.3d 548, 552 (Tex. App.—

Texarkana 2001, no pet.); Marmon v. State, 704 S.W.2d 90, 91 (Tex. App.—Dallas 1985, pet.

ref’d). We find that evidence was legally sufficient to support the jury’s finding on the element

of identity.

        As for the other elements of the offense, Adams’ testimony that O’Neal planned to sell

the diesel fuel, coupled with the manner in which it was appropriated, established that the

property was taken from Trinity unlawfully, without its effective consent, and with intent to

deprive Trinity of the property. Yet, in his second argument, O’Neal challenges whether the

State proved the amount of the theft since the exact volume of diesel fuel was not measured.

Although Ferris and Welk testified that the two 300-gallon vessels were not completely full,

                                                7
Mims and Adams both testified that the vessels were full. While there was some inconsistency

on this matter, a rational jury could find that the vessels and the 100-gallon tank contained,

collectively, at least 407 gallons of diesel fuel, which, in light of Hawkins’ testimony, was

sufficient to support a finding that the stolen diesel fuel alone was worth more than $1,500.00.

       As for O’Neal’s third argument, the State is not required to allege a specific date in an

indictment. Sledge v. State, 953 S.W.2d 253, 255 (Tex. Crim. App. 1997). Alleging that an

event occurred “on or about” a certain point in time is sufficient, so long as the act occurred

before the date of the presentation of the indictment, but within the relevant limitations period.

Id. at 256; Thomas v. State, 753 S.W.2d 688, 693 (Tex. Crim. App. 1988). Here, even though

the State was not required to prove that the offense occurred on April 17, 2013, both Welk and

Adams testified that the offense occurred on that date. O’Neal’s third argument is without merit.

       In his fourth and final argument, O’Neal simply states that Adams’ testimony was not

credible. However, it was the jury’s responsibility “to fairly resolve conflicts in testimony, to

weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.”

Hooper, 214 S.W.3d at 13. The jury was able to observe Adams’ demeanor at trial and was in

the best position to assess his credibility. Since we defer to the jury’s credibility determinations,

we decline O’Neal’s invitation to sit as the thirteenth juror for the purpose of reevaluating

Adams’ credibility. See Thornton v. State, 425 S.W.3d 289, 300 (Tex. Crim. App. 2014).

       Viewing the evidence in a light most favorable to the verdict, we find it legally sufficient

to establish the elements of the theft offense as alleged in the State’s indictment. Accordingly,

we overrule O’Neal’s sole point of error.

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IV.   Conclusion

      We affirm the trial court’s judgment.




                                              Ralph K. Burgess
                                              Justice

Date Submitted:      January 30, 2015
Date Decided:        March 18, 2015

Do Not Publish




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