                                  NO. 07-08-0032-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                  APRIL 23, 2009
                         ______________________________

                                  GERALD BROWN,

                                                              Appellant

                                            v.

                               THE STATE OF TEXAS,

                                                     Appellee
                       _________________________________

            FROM THE 362nd DISTRICT COURT OF DENTON COUNTY;

            NO. F-2007-0448-D; HON. BRUCE MCFARLING, PRESIDING
                      _______________________________

                              Memorandum Opinion
                        _______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

      Gerald Brown appeals his conviction for theft and contends, through three issues,

that the State presented legally and factually insufficient evidence to prove he committed

theft of property valued at $1500 or more but under $20,000. We affirm the judgment.

      The record contains evidence illustrating that while appellant was in prison, a James

Jones had stolen the wheels off appellant’s vehicle.       Jones later agreed to “hook

[appellant] up” with replacements if appellant drove him from Oklahoma to Lewisville,
Texas, to “repossess” some rims. Appellant admitted that he was “street smart,” testified

that he was “not going to act like [he] didn’t know” what Jones was going to do, that he

“had a sense of what he’s [i.e. Jones was] talking about,” that he “didn’t care” whether the

story was true, and agreed to the proposal. So, one night the two entered appellant’s

Cadillac, drove to Texas, and eventually stopped at an apartment complex around 4 a.m.

Several men lifted a particular SUV (located in the parking lot) off the ground, placed cinder

blocks under it, lowered it on the cinder blocks, removed the lug nuts and rim covers from

the vehicle’s four wheels, placed two wheels in a truck that arrived with other compatriots,

and placed the rim covers and lug nuts in appellant’s car before being spotted and fleeing.

       Soon after fleeing, appellant and Jones were arrested. While sitting in the police

squad car appellant called a female and told her that “we had all the rims off,” that

“somebody seen us trying to take these rims,” and that “we got away and were already on

the highway.” These comments were recorded by the video camera within the squad car.

Testimony also disclosed that the value of the four wheels and rims approximated $2200

and that the owner of the wheels and SUV had not given anyone permission to take them.

Finally, upon being charged, which charge included a party charge, the jury found appellant

guilty of theft of property equal to or greater than $1500 but less that $20,000.

       The foregoing evidence is enough to permit a rational jury to conclude, beyond

reasonable doubt, that appellant was at the very least a party to the theft. And, that only

two of the four wheels were actually taken before being spotted does not negate that.

Indeed, though two wheels were left behind, appellant himself said that they “had all the

rims off.” Additionally, the four rim covers once on the wheels had been removed. Couple

this with the evidence illustrating that the SUV had been placed on cinder blocks to

                                              2
facilitate the theft, one cannot but conclude that appellant (at the very least as a party)

appropriated or otherwise exercised control over all four wheels, tires, and rims. See TEX .

PENAL CODE ANN . § 31.01(4) (Vernon Supp. 2008) (defining “appropriate” as, among other

things, “to acquire or otherwise exercise control over property”); TEX . PENAL CODE ANN .

§31.03(a) (stating that one commits theft when he unlawfully appropriates property with

intent to deprive the owner of it).

       In sum, the evidence was both legally and factually sufficient to support the jury’s

verdict. The latter was not manifestly unjust, and the trial court acted properly in denying

appellant’s motion for directed verdict.

       Accordingly, the judgment is affirmed.



                                                 Per Curiam



Do not publish.




                                             3
