      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-04-00024-CR



                                     Rana Ghana, Appellant

                                                  v.

                                   The State of Texas, Appellee




             FROM THE COUNTY COURT AT LAW NO. 6 OF TRAVIS COUNTY
              NO. 652,944, HONORABLE JAN BRELAND, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Following a bench trial, appellant Rana Ghana was convicted of theft and sentenced

to thirty days in jail. See Tex. Pen. Code Ann. § 31.03(a), (e)(2)(A)(i) (West Supp. 2004). In two

points of error, she contends that the evidence is insufficient to sustain the conviction and that the

evidence against her should have been suppressed. We affirm the judgment.

               Austin Police Officers Jason Jewett and Gregory Gentry were patrolling the area west

of the University of Texas campus at 8:00 a.m. when they saw appellant pushing a large plastic tub

through an intersection. Appellant was obviously exerting herself, from which the officers surmised

that the tub was heavy. Jewett stopped his patrol car and asked appellant, “What have you got?”

Appellant told him that she had “paint and stuff” that she got at a building down the street.

Appellant gestured toward the Castilion, a high-rise dormitory about three blocks away. Appellant

offered to show the contents of the tub to the officers, who had now left the patrol car. She took the
cover off the tub and the officers saw seven commercial-style one-gallon paint cans, some of which

appeared to be unopened. There was also a roll of masking tape still in a plastic wrapper. Appellant

told the officers that she had found the paint near a dumpster and thought that it was trash, but that

she had not spoken to anyone before taking it. She agreed to show the officers where she got the

paint.

               The officers drove appellant to the Castilion, and she directed them to a storage area

inside the parking garage that was closed to pedestrians. Jewett was familiar with the building and

knew that the gates offering access to this area were usually closed. Signs posted nearby announced

“no trespassing.” More paint and other construction material were in the storage area, which was

forty feet from the nearest dumpster. The officers noticed circles in the dust where the cans in

appellant’s possession appeared to have been sitting.

               The officers contacted the property manager, who came to the scene and identified

the paint and other items in the tub as belonging to the Castilion. He explained that the building was

being renovated and that the material was being used by the contractors. Both he and the building’s

maintenance supervisor testified that the paint was not trash and that appellant did not have

permission to take it. They estimated that each can of paint was worth about twenty dollars.

               Appellant testified that the paint was in what she had been told was a “dump area”

at the Castilion. She said the cans were almost empty and that she believed them to be “throwaway.”

She intended to use the paint on a boat she was building with a friend.

               When there is a challenge to the sufficiency of the evidence to sustain a criminal

conviction, the question presented is whether a rational trier of fact could have found the essential



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elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324 (1979)

(legal sufficiency); Griffin v. State, 614 S.W.2d 155, 158-59 (Tex. Crim. App. 1981) (legal

sufficiency); Zuniga v. State, No. 539-02, 2004 Tex. Crim. App. LEXIS 668, at *20 (Tex. Crim.

App. Apr. 21, 2004) (factual sufficiency). In a legal sufficiency review, all the evidence is reviewed

in the light most favorable to the verdict; it is assumed that the trier of fact resolved conflicts in the

testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the

verdict. Griffin, 614 S.W.2d at 159 (citing Jackson, 443 U.S. at 318-19). In a factual sufficiency

review, all the evidence is considered equally, including the testimony of defense witnesses and the

existence of alternative hypotheses. Orona v. State, 836 S.W.2d 319, 321 (Tex. App.—Austin 1992,

no pet.). Although due deference still must be accorded the fact finder’s determinations, particularly

those concerning the weight and credibility of the evidence, the reviewing court may disagree with

the result in order to prevent a manifest injustice. Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App.

2000). The evidence will be deemed factually insufficient to sustain the conviction if the proof of

guilt is too weak or the contrary evidence is too strong to support a finding of guilt beyond a

reasonable doubt. Zuniga, at *20; see Johnson, 23 S.W.3d at 11.

                Appellant argues that because no one saw her take the paint, there is no direct

evidence contradicting her claim that the cans were beside the dumpster. “It is clear,” argues

appellant, “that evidence does not exist to prove that the paint was not abandoned and that Appellant

committed the offense of theft.” The circumstantial evidence, however, suggests that the paint was

taken from a restricted area being used by contractors, and that no reasonable person would have

believed that she was authorized to enter and take paint or other materials. We hold that the



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evidence is both legally and factually sufficient to sustain the trial court’s finding of guilt. Point of

error one is overruled.

                In her second point of error, appellant argues that the paint and other evidence should

have been suppressed as the product of an unlawful detention. Appellant filed a motion to suppress

but there is no indication that it was ever presented to the trial court for a ruling. Although evidence

was adduced at trial regarding the nature of the officers’ actions, appellant did not object to the

admission of any of the State’s evidence as having been unlawfully seized. Defense counsel did not

assert appellant’s Fourth Amendment claim until his final argument. This was too late to preserve

the issue for review. See Tex. R. App. P. 33.1. Point of error two is overruled.

                The judgment of conviction is affirmed.




                                                __________________________________________

                                                Jan P. Patterson, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: July 29, 2004

Do Not Publish




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