
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-03-00492-CR


Kelvin Wilkins, Appellant

v.


The State of Texas, Appellee






FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT

NO. 2024267, HONORABLE BOB PERKINS, JUDGE PRESIDING



M E M O R A N D U M   O P I N I O N

At a bench trial, appellant Kelvin Wilkins was found guilty of habitual theft.  See Tex.
Pen. Code Ann. § 31.03(a), (e)(4)(D) (West Supp. 2004).  The court also found that appellant had
two previous non-theft felony convictions and imposed a twelve-year prison sentence.  See id.
§ 12.42(a)(2) (West Supp. 2004).  Appellant contends the evidence is legally and factually
insufficient to sustain his conviction.  We find this claim to be without merit and affirm.
Adolfo Trevino, a loss-prevention officer at an Austin Wal-Mart store, testified that
he saw appellant wrap a compact disc player and several discs in a shirt and place them in his
shopping cart.  Trevino found this behavior to be suspicious, so he followed appellant.  As appellant
made his way through the store, he placed the compact disc player, then the discs, inside his pants.
Appellant paid for the items remaining in his cart and left the store.  When Trevino approached him
in the parking lot and identified himself, appellant tipped over his shopping cart and fell to the
ground.  He began to shout that Trevino had broken his leg.  The compact disc player and five discs,
valued at $147.17, fell from appellant's pants.  Appellant was later examined by a doctor, who found
that he had no injuries.
Appellant testified that he entered the store with several hundred dollars in cash and
purchased approximately $200 worth of merchandise.  Appellant said that as he left the store, he was
hit from behind and the contents of his cart spilled onto the ground.  Appellant denied putting the
items in his pants and suggested that the cashier had mistakenly failed to scan them.
Appellant argues that he had no reason to steal the player and discs because he had
plenty of money to pay for them, and he points out that he did pay for several hundred dollars of
merchandise.  Appellant also argues that Trevino's testimony should not be credited because he was
shown to have a criminal record.  Appellant's credibility suffers from the same defect, however, and
in any event, the relative credibility of the witnesses was a question for the court as trier of fact. 
Viewing the evidence in the light most favorable to the conviction, the court could rationally find
beyond a reasonable doubt that appellant unlawfully appropriated the property in question with the
intent to deprive. (1) See Jackson v. Virginia, 443 U.S. 307, 324 (1979) (legal sufficiency standard);
Griffin v. State, 614 S.W.2d 155, 158-59 (Tex. Crim. App. 1981) (same).  Viewing the evidence
neutrally, the proof of appellant's guilt is neither so obviously weak nor so greatly outweighed by
contrary proof as to undermine confidence in the court's determination.  See Johnson v. State, 23
S.W.3d 1, 11 (Tex. Crim. App. 2000) (factual sufficiency standard).
We overrule the two points of error and affirm the judgment of conviction.


				__________________________________________
				Jan P. Patterson, Justice
Before Chief Justice Law, Justices B. A. Smith and Patterson
Affirmed
Filed:   March 25, 2004
Do Not Publish
1.        Appellant does not question the proof of his previous convictions.

