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


                  No. 06-14-00114-CR



      RANDYAEL DONTRELL TYSON, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



            On Appeal from the County Court
                 Lamar County, Texas
                Trial Court No. 61504




      Before Morriss, C.J., Moseley and Burgess, JJ.
        Memorandum Opinion by Justice Burgess
                      MEMORANDUM OPINION
       Following Randyael Dontrell Tyson’s conviction by a Lamar County jury of theft, he was

sentenced to serve 100 days in jail, fined $432.00, ordered to pay restitution of $88.00, and

assessed court costs of $302.00.      Tyson appeals to this Court claiming that (1) there is

insufficient evidence to support his conviction, (2) there is insufficient evidence to support the

assessment of court costs against him, (3) the trial court abused its discretion in limiting his

argument to the jury, and (4) the trial court’s limitation of his argument to the jury also denied

him his right to adequate representation by counsel. Since we find that there is sufficient

evidence to support the conviction and the assessment of costs and that Tyson failed to preserve

his related complaints regarding the limitation of his jury argument and the denial of adequate

representation, we affirm the trial court’s judgment.

I.     Factual Background

       This case arose out of a trip to a Walmart store made by Tyson and his wife, Kimber, the

evening of December 6, 2013. The State called two witnesses. The first was Dustin Calhoun, an

asset protection officer for Walmart. Calhoun testified that he had seen Tyson and another male

in the store earlier that day. A few hours later, he observed Tyson and a female (later identified

as Kimber) selecting merchandise at a high rate of speed, which, he explained, “gives notice that

they’re not probably going to pay for it . . . [t]hey’re not paying attention to what they’re

selecting, the amounts they’re selecting.” Calhoun began to follow them and watched them

select cosmetics, perfume, deodorant, and razors. After selecting the items, they went to the

store’s purse department where Tyson ripped open the razor package and placed the razor, along


                                                 2
with other merchandise into his pocket.       They then went around the jewelry department,

bypassed the registers, and without paying for the items, exited toward the parking lot upon

reaching the last door and began running toward their car. When they got to their car, a red

Mustang, they turned and saw Calhoun following them, abandoned their car, and ran to a nearby

trailer park. Calhoun telephoned the police and continued following them, but he did not chase

them.

        Although Calhoun saw them take multiple quantities of several items, he prepared a

receipt reflecting only one of each item taken, resulting in a total retail value of $87.91. He

testified that although he was some distance away, he was familiar with the various brands and

could distinguish them because he looks at the merchandise every day. He also prepared a

surveillance video compilation consisting of eleven excerpts from various security cameras in

and around the store. The video recording showed Tyson and another male, later identified as

his friend, Courtney, exiting their car, and it showed Tyson and Kimber selecting merchandise,

exiting the store, and running through the parking lot. Although there is footage that shows

Tyson and Kimber entering the purse section with merchandise in their shopping cart, there is no

footage of them in the purse section. Calhoun explained that no security cameras monitor the

purses because it is neither a high loss area nor an area containing liquid, “where slips and falls

can happen.” He also testified that he did not find any merchandise in the parking lot and only

found two empty packages in the shopping cart.

        Jeremy Duerksen, an officer with the Paris Police Department, also testified on behalf of

the State. Duerkson testified that he was able to identify Tyson and Kimber by the still frames

                                                 3
from the video recording supplied by Calhoun. Duerksen also ran the license plate number of

the vehicle left in the parking lot to identify the name and address of the registered owner.

About two or three hours after the incident, when the vehicle was no longer in the Walmart

parking lot, Duerksen went to the registered owner’s address. When he arrived, the red Mustang

he had seen at Walmart was parked at the residence. Through a window next to the door, he

could see Tyson laying on a couch and Kimber sitting on the couch. He knocked on the door,

and Kimber came to the window and looked out at him. After he identified himself as a police

officer, Kimber woke up Tyson, and both of them ran to the back of the house. Tyson was

wearing the same clothes that Duerksen had observed him wearing in the still shots from the

security camera video recording.

       According to Duerksen, Tyson’s mother, Vickie, and father answered the door. His

father gave Duerksen a gesture to come in and went to look for Tyson and Kimber. He told

Duerksen that he found them in the back of the residence and that Kimber was located in the

shower, fully clothed. Duerksen remained in the living area, but could see down the hallway and

into the kitchen. He did not see any of the merchandise taken from Walmart in the house. He

asked Vickie if he could look for the merchandise elsewhere on the premises and she refused.

Duerksen also told them that there was surveillance video footage showing Tyson and Kimber

stealing the items, but when Tyson and Kimber asked to see it, he told them they could not.

       At trial, only Kimber testifed in Tyson’s defense. Kimber testified that she, Tyson, and

Courtney had driven to Walmart that evening in Vickie’s car. Initially, Kimber remained in the

car while Tyson and Courtney entered the store. A security camera video recording shows that

                                               4
Tyson and Courtney exited from a red Mustang around 8:43 p.m. and walked toward the store

entrance. Around ten or fifteen minutes later, Tyson returned to the car to check on Kimber. At

that point, according to Kimber, she decided to go into the store to purchase some hair products.

After grabbing a shopping cart, she and Tyson went to the cosmetics department. 1 Kimber stated

that a short time later, she noticed a man, who she now knows to be Calhoun, walk by and look

at them like they had “poop” on their faces. They continued to look at products and moved to

the next aisle, where, according to Kimber’s testimony, she saw Calhoun at the endcap, again

looking at them like they had something on their faces.

        Kimber indicated that she saw him again about five feet away when they were in the toy

department. She testified that Calhoun was looking at them out of the corner of his eye, that she

told Tyson, and that he said not to worry about it. As Kimber recalled things, Calhoun kept

looking at them furtively, so she stared at him until he turned red and walked away. They then

went to the purses section to look for a wallet. Kimber recalled that as she bent over to look at

one, she saw Calhoun once again, and she began getting mad because she realized there was

something not right with the man. She testified that she was going to confront him, but her

husband persuaded her against it. According to Kimber, they then left the shopping cart on the

purse aisle and exited the store. As they were leaving the store, she looked at Tyson and saw

Calhoun in her peripheral vision, coming rapidly at them. Her anger turned to fear since he now

seemed to be chasing them, so they began running. They ran back to their car, but the doors

were locked, so they ran to the side of Walmart. She explained that they kept running because

1
 The first surveillance video footage showing Tyson and Kimber in the cosmetics department reflects a beginning
time of 9:06:28 p.m.
                                                      5
Calhoun had chased them and then they did not know where he went. They ran to a pizza

restaurant where they called Courtney, who had the car keys, and asked him to take them home.

Later that night, the police came to the house.

       Kimber testified that when the police arrived, she was in the hall bathroom, Tyson was

asleep on the couch, and Vickie and her husband, Rodney, were in their bedroom. She heard the

knock and went to the door. She saw two policemen, but did not open the door because she was

not fully dressed. She woke Tyson to let him know the police had arrived because he was not

fully dressed either. Then she asked Vickie if she had called the police and went to Vickie’s

bathroom to put on some clothes. Tyson followed Kimber to the bathroom to dress. Kimber was

still in the bathroom when a policeman came to get her. The officer told her to come out, and

they went to the living room. The officers explained why they were there and described the

security camera video recording from Walmart. Kimber and Tyson asked to see the video.

       At Tyson’s trial, Kimber revealed that she had been charged with the same offense and

that she had been offered a plea bargain if she testified against her husband.       On cross-

examination, she admitted that she did not tell a Walmart employee or manager about the

stranger looking at her. She explained that she preferred to leave and not get other people

involved. She also failed to tell the officers about the man when they came to her house because

they were accusing her of stealing.




                                                  6
II.    Sufficiency of the Evidence

       A.      Standard of Review

       In his first point of error, Tyson contends that the evidence is legally insufficient to

support the guilty verdict. Specifically, Tyson contends that insufficient evidence to support the

jury’s verdict was presented at trial because the evidence that he “actually stole items” relies

primarily on the disputed testimony of Calhoun. He argues that the failure to recover any stolen

merchandise, the lack of video evidence showing Tyson concealing any merchandise, and the

plausible explanation given by Kimber all support his innocence.

       In reviewing the legal sufficiency of the evidence, we consider all the evidence in the

light most favorable to the jury’s verdict to determine whether any rational jury could have found

the essential elements of the offense beyond a reasonable doubt. 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)). We examine legal sufficiency

in light of the Brooks opinion, while giving deference to the responsibility of the trier of fact “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). We evaluate all of the evidence in the record, whether

properly or improperly admitted, direct or circumstantial, and determine whether the evidence

supports the verdict when viewed in the light most favorable to that verdict. Hartsfield, 305

S.W.3d at 863 (citing Clayton, 235 S.W.3d at 778).

                                                 7
            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.

            Tyson was convicted of theft of property having a value of more than $50.00 but less

than $500.00. A person commits the offense of theft if “he unlawfully appropriates property

with the intent to deprive the owner of the property.” TEX. PENAL CODE ANN. § 31.03 (West

Supp. 2014). A person appropriates property by acquiring or otherwise exercising control over

property. TEX. PENAL CODE ANN. § 31.01(4)(B) (West Supp. 2014). Tyson only challenges the

sufficiency of evidence that he unlawfully acquired or otherwise exercised control over the

items. 2

            B.       Analysis of Evidence

            Initially, we note that the jury was presented with two conflicting theories—the State’s

and Tyson’s. The jury was uniquely able to assess both the credibility and demeanor of the

witnesses who testified. Most importantly, the jury was able to assess Kimber’s credibility and

demeanor when she explained the events at Walmart, her and Tyson’s flight from Walmart, and

their actions at Vickie’s house after the police arrived. From the guilty verdict, it is clear that the

jury, which may believe or disbelieve any witness, rejected Kimber’s explanation. Even if her


2
    Because Tyson denies that a theft even occurred, he does not reach the issue of intent.
                                                             8
explanation of all these events was “plausible,” as Tyson argues, the jury may still have

disbelieved it. Keeping these principles in mind, we consider the evidence in the light most

favorable to the verdict.

       As discussed above, Calhoun testified that he saw Tyson and his wife select items and put

them in their shopping cart. He described how he moved from one position to another to see

them without being seen. He also described how they ripped open a few packages and put the

contents, along with other items, in their coats, abandoned the shopping cart, and exited the store

without paying for the items they had taken. Calhoun then described how they suddenly began

running as they reached the outside door, and how they continued running until they disappeared

from the Walmart property. Tyson asserts that the video-recorded evidence does not show either

of them “rapidly” selecting items, as Calhoun testified, nor does it show them ripping up

packages and concealing items in their pockets. Nevertheless, a conviction may be supported

solely on the testimony of a single eyewitness. Lewis v. State, 126 S.W.3d 572, 575 (Tex.

App.—Texarkana 2004, pet. ref’d) (citing Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App.

1971)). Although some of the video-recorded evidence may arguably contradict portions of

Calhoun’s testimony, other portions of the recording support his testimony. Further, the absence

of video-recorded evidence of the act of concealment goes to the weight and credibility of

Calhoun’s testimony. The jury, as the exclusive judge of witness credibility and the weight to be

given their testimony, was free to believe both Calhoun’s explanation regarding the absence of

this video evidence and that he was in the best position to witness the theft. See Barnett v. State,




                                                 9
344 S.W.3d 6, 13 (Tex. App.—Texarkana 2011, pet. ref’d) (citing Wyatt v. State, 23 S.W.3d 18,

30 (Tex. Crim. App. 2000)).

       In addition, there is circumstantial evidence from which the jury could also infer guilt.

The testimony of both Calhoun and Kimber, as well as the video-recorded evidence, together,

establish that Tyson and Kimber began running as soon as they realized Calhoun was following

them and that they kept running until they were no longer on the Walmart parking lot. It has

long been recognized that a jury may infer guilt from the circumstance of flight. Clayton v.

State, 235 S.W.3d 772, 780 (Tex. Crim. App. 2007) (citing Hardesty v. State, 656 S.W.2d 73, 78

(Tex. Crim. App. 1983)). Although Kimber offered an innocent explanation for their flight, she

was unable to adequately explain why she did not simply notify a Walmart employee that they

were being followed by Calhoun. Further, Officer Duerksen’s testimony that Kimber and Tyson

fled to the back of Vickie’s house once he identified himself and that they were found hiding in

the back bathroom is an additional circumstance from which the jury could reasonably infer

guilt. Finally, when talking with the police at Vickie’s house, neither Tyson nor Kimber offered

an explanation for their flight from Walmart. We find that a rational jury considering this

evidence could find beyond a reasonable doubt that Tyson unlawfully acquired or otherwise

exercised control over Walmart’s property. Therefore, we find there was sufficient evidence to

support Tyson’s conviction for theft. Tyson’s first point of error is overruled.




                                                10
III.   Costs Assessment

       Tyson also complains that there is insufficient evidence to support the trial court’s

assessment of $302.00 in court costs. Tyson argues that since the record does not contain a

certified bill of costs, a judgment against him for costs cannot be supported.

       An appellant in a criminal case may challenge the sufficiency of the evidence supporting

court costs on direct appeal. Armstrong v. State, 340 S.W.3d 759, 766–67 (Tex. Crim. App.

2011). To measure the sufficiency of the evidence supporting an assessment of court costs, we

review the record in the light most favorable to the award. Whatley v. State, No. 06-12-00117-

CR, 2014 WL 7399130, at *1 (Tex. App.—Texarkana Dec. 30, 2014, no pet.) (mem. op., not

designated for publication) (citing Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App.

2010)). If a criminal action is appealed, the Texas Code of Criminal Procedure requires that “an

officer of the court shall certify and sign a bill of costs stating the costs that have accrued and

send the bill of costs to the court to which the action or proceeding is transferred or appealed.”

TEX. CODE CRIM. PROC. ANN. art. 103.006 (West 2006). Further, “[a] cost is not payable by the

person charged with the cost until a written bill is produced or is ready to be produced,

containing the items of cost, signed by the officer who charged the cost or the officer who is

entitled to receive payment for the cost.” TEX. CODE CRIM. ANN. art. 103.001 (West 2006);

Ballinger v. State, 405 S.W.3d 346, 348 (Tex. App.—Tyler 2013, no pet.). In addition, there is

no requirement that a certified bill of costs be filed, either at the time the judgment is signed or

before the case is appealed. Whatley, 2014 WL 7399130, at *1 (citing Ballinger, 405 S.W.3d at

348). When a cost assessment is challenged on appeal, and the bill of costs has been omitted

                                                11
from the appellate record, then the clerk’s record may be supplemented with the bill of costs.

See TEX. R. APP. P. 34.5(c)(1); Whatley, 2014 WL 7399130, at *1; Ballinger, 405 S.W.3d at

348. 3 In this situation, “supplementing the record to include the bill of costs is appropriate and

does not violate due process.” Ballinger, 405 S.W.3d at 349.

           Since the clerk’s record in this case did not originally include a bill of costs, we asked the

Lamar County Clerk to prepare and file an itemized bill of costs. See Whatley, 2014 WL

7399130, at *2. In response, we received a supplemental clerk’s record containing a certified bill

of costs. The itemized bill of costs shows that, excluding the fine that was also included as court

costs, the total amount of court costs was $302.00. Because the supplemental record contains a

bill of costs supporting the amount of court costs assessed, we find that there is sufficient

evidence to support the trial court’s judgment for costs. We overrule this point of error.

IV.        Jury Argument

           In his next two points of error, Tyson complains that the trial court abused its discretion

in limiting his time for closing argument and, in so doing, denied his Sixth Amendment 4 right to

full representation of counsel. 5 Since we find Tyson failed to preserve any error 6 related to the

trial court’s limitation of his jury argument, we overrule this point of error.




3
 See also Johnson v. State, 423 S.W.3d 385, 392 (Tex. Crim. App. 2014) (“We conclude that a bill of costs is a
relevant item that if omitted from the record, can be prepared and added to the record via a supplemental clerk’s
record.”).
4
    See U.S. CONST. amend. VI.
5
 Tyson does not argue that his trial counsel was ineffective; rather, he merely contends that he was denied the full
scope of his Sixth Amendment right to counsel by the trial court’s limitation on his counsel’s closing argument.

                                                        12
        After the charge conference, the trial court asked the State and Tyson how much time

they needed to argue their case. The State responded, “Ten minutes, max,” and Tyson’s counsel

responded, “15, 20 maybe.” The court then informed counsel that it would give both sides

fifteen minutes, without objection from Tyson. Near the end of his closing argument, the trial

court advised Tyson’s counsel that he had one minute, again without objection or comment from

Tyson. A few moments later, the following exchange took place:

                 THE COURT: Mr. Haslam, your time is up.

                 [Tyson’s Counsel]: May I have just another second or two?

                 THE COURT: Hurry up.

Tyson’s counsel then continued with his argument, until the trial court interrupted with the

following:

               THE COURT: Okay. That’s enough. Mr. Haslam, you’re -- have a seat,
        sir. Your time is up.

               [Tyson’s Counsel]: Of course it is, Your Honor. Ladies and gentlemen, I
        ask you to find my client not guilty. There is no evidence.

The State then concluded its rebuttal, and the jury was dismissed to deliberate. Only then did

Tyson object to the limitation on his closing argument, claiming it was “premature” and advising

the trial court of other areas he wished to cover in his closing argument. In response, the trial

court noted that it had given him an additional one and one-half minutes.




6
 Although the State has not raised this issue, “a court of appeals should review preservation of error on its own
motion.” Ford v. State, 305 S.W.3d 530, 532–33 (Tex. Crim. App. 2009) (citing Jones v. State, 942 S.W.2d 1, 2 n.1
(Tex. Crim. App. 1997)).
                                                       13
       In order to preserve a complaint for appellate review,

       the record must show that:

                      (1)      the complaint was made to the trial court by a timely
               request, objection, or motion that:

                              (A)     stated the grounds for the ruling that the
                      complaining party sought from the trial court with sufficient
                      specificity to make the trial court aware of the complaint, unless
                      the specific grounds were apparent from the context . . . .

TEX. R. APP. P. 33.1(a)(1)(A); Pena v. State, 285 S.W.3d 459, 463 (Tex. Crim. App. 2009). The

complaining party must “let the trial judge know what he wants, why he thinks himself entitled

to it, and to do so clearly enough for the judge to understand him at a time when the judge is in a

proper position to do something about it.” Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim.

App. 1992). Only when the complaint is timely made does the trial court have the opportunity to

correct any error. See Pena, 285 S.W.3d at 464.

       Here, Tyson did not raise a timely objection. Before argument began, Tyson advised the

trial court that he needed fifteen, maybe twenty minutes for closing, but then acquiesced when

the trial court gave him only fifteen minutes. When initially advised that his time was up, he

only requested “another second or two” and was given an additional one and one-half minutes.

Then, when he was finally advised that his time had expired, he again acquiesced rather than

objecting or requesting more time. By failing to object to the limitation at a time when the trial

court had the opportunity to correct any error, Tyson failed to preserve any error related to the




                                                14
time limitation on his jury argument. 7 See, Appelt v. State, Nos. 02-12-00431-CR, 02-12-00432-

CR, 2013 WL 5675137, at *4 (Tex. App.—Fort Worth Oct. 17, 2013, pets. ref’d) (mem. op., not

designated for publication); Slatter v. State, No. 13-11-00338-CR, 2012 WL 1072804, at *5–6

(Tex. App.—Corpus Christi March 29, 2012, no pet.) (mem. op., not designated for publication);

Johnson v. State, No. 01-08-00709-CR, 2011 WL 6014218, at *6–7 (Tex. App.—Houston [1st

Dist.] Dec. 1, 2011, no pet.) (mem. op., not designated for publication). 8 We overrule these

points of error.

         We affirm the judgment of the trial court.




                                                      Ralph K. Burgess
                                                      Justice


Date Submitted:            March 3, 2015
Date Decided:              March 18, 2015

Do Not Publish



7
 This includes Tyson’s claim implicating the Sixth Amendment. “Except for complaints involving systemic (or
absolute) requirements, or rights that are waivable only, which are not involved here, all other complaints, whether
constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a).” Mendez v. State, 138
S.W.3d 334, 342 (Tex. Crim. App. 2004). Claims of ineffective assistance of counsel that violate the Sixth
Amendment based on the deficient performance of counsel may be raised for the first time on appeal. See, e.g.,
Robertson v. State, 187 S.W.3d 475 (Tex. Crim. App. 2006). The claim here, however, is that an error on the part of
the trial court denied Tyson the “exercise of his full rights under” the Sixth Amendment. Sixth Amendment
complaints based on trial court error must comply with Rule 33.1(a) or be forfeited. See, e.g., Ripkowski v. State, 61
S.W.3d 378, 386 (Tex. Crim. App. 2001); Ferree v. State, 416 S.W.3d 2, 7 (Tex. App.—Houston [14th Dist.] 2013,
pet. ref’d); Deener v. State 214 S.W.3d 522, 527 (Tex. App.—Dallas 2006, pet. ref’d).
8
 Although these unpublished cases have no precedential value, we may take guidance from them “as an aid in
developing reasoning that may be employed.” Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003,
pet. ref’d).
                                                         15
