Affirmed and Opinion Filed August 26, 2015.




                                             In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-14-00806-CR

                               RONNIE HEATH, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                     On Appeal from the Criminal District Court No. 1
                                  Dallas County, Texas
                          Trial Court Cause No. F-1453600-H

               MEMORANDUM OPINION ON REHEARING
                          Before Justices Bridges, Lang, and Schenck
                                   Opinion by Justice Lang
       On July 30, 2015, this Court issued a memorandum opinion affirming the trial court=s

judgment in this case as modified. On August 5, 2015, Ronnie Heath timely filed his motion for

rehearing. On August 6, 2015, the State filed its response to the motion for rehearing agreeing

with Heath. We grant Heath’s motion for rehearing. We withdraw our July 30, 2015 opinion

and vacate the judgment of that date. This is now the opinion of the Court.

       Ronnie Heath appeals the trial court’s judgment convicting him of theft, enhanced (1)

because the value of the property stolen was less than $20,000 and the property stolen was

aluminum and (2) by two prior state jail felonies. See TEX. PENAL CODE ANN. §§ 31.03(a),

(e)(4)(F)(i), 12.425(a) (West Supp. 2014). The jury found Heath guilty, the enhancements true,

and assessed his punishment at five years of imprisonment. In his sole issue on appeal, Heath
argues the evidence is insufficient to support his conviction. We conclude the evidence is

sufficient. The trial court’s judgment is affirmed.

                    I. FACTUAL AND PROCEDURAL BACKGROUND

       Juan Guerra, the night watchman for Action Metals, a facility that recycles metals

including aluminum, climbed a ladder to look over a fenced area and saw a man throwing a

loaded sack over the fence. Guerra told the man to leave and called 9-1-1. The man did not pay

any attention to Guerra. Instead, the man returned for more material. The man threw two

additional bags over the fence, climbed the fence, put the bags into a shopping cart, and left

“turn[ing] on Lamar.” Guerra described the perpetrator as a thin, African-American man who

was approximately five feet seven or eight inches tall.

       Officer Troy Klinglesmith responded to the 9-1-1 call and arrived within a minute. He

saw a black male pushing a shopping cart down the street. Officer Klinglesmith stopped the

man, questioned him, and identified the man as Heath. Also, he observed bags of what appeared

to be aluminum in the shopping cart. Officer Klinglesmith told Heath to “put the stuff back,”

then followed Heath to Action Metals. At Action Metals, Guerra identified Heath as the man he

saw taking the property and pushing the shopping cart. Then, Officer Klinglesmith applied a

magnet to the metal, found it was not attracted to the metal, thereby confirming that the metal

was aluminum. The next day, Boris Grinstein, the vice president and manager of Action Metals

weighed the aluminum, determining it was “over a hundred [pounds].”

       Heath was indicted for theft, which was enhanced because the value of the property

stolen was less than $20,000 and the property stolen was aluminum. See TEX. PENAL CODE ANN.

§ 31.03(a), (e)(4)(F)(i). The indictment also alleged two prior state jail felonies. See TEX.

PENAL CODE ANN. § 12.425(a). The jury found Heath guilty, the enhancements true, and

assessed his punishment at five years of imprisonment.


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                             II. SUFFICIENCY OF THE EVIDENCE

        In issue one, Heath argues the evidence is insufficient to support his conviction because

the evidence failed to identify him as the perpetrator. Specifically, he claims the evidence is

insufficient because: (1) Guerra was not able to identify Heath in court; (2) although Officer

Klinglesmith testified Guerra identified Heath as the perpetrator at the scene, Officer

Klinglesmith was only able to communicate with Guerra “somewhat”; and (3) Guerra and

Officer Klinglesmith gave differing descriptions of Heath’s attire at trial. The State responds

that Guerra identified Heath as the thief to Office Klinglesmith and Officer Klinglesmith

identified Heath at trial.

                                     A. Standard of Review

        When reviewing the sufficiency of the evidence, an appellate court considers all of the

evidence in the light most favorable to the verdict to determine whether the jury was rationally

justified in finding guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318–

19 (1979); Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012); Brooks v. State, 323

S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.). Appellate courts are required to

determine whether any rational juror could have found the essential elements of the offense

beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 902 n.19. An

appellate court is required to defer to the jury’s credibility and weight determinations because the

jury is the sole judge of the witnesses’ credibility and the weight to be given to their testimony.

See Jackson, 443 U.S. at 319, 326; Merritt, 368 S.W.3d at 525; Brooks, 323 S.W.3d at 899. All

evidence, whether properly or improperly admitted, will be considered when reviewing the

sufficiency of the evidence.     See McDaniel v. Brown, 558 U.S. 120 (2010) (per curiam);

Lockhart v. Nelson, 488 U.S. 33, 41–42 (1988); Jackson, 443 U.S. at 319.




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                                        B. Applicable Law

       A person commits theft if he unlawfully appropriates property with the intent to deprive

the owner of property.     TEX. PENAL CODE ANN. § 31.03(a). Appropriation of property is

unlawful if it is without the owner’s effective consent.          TEX. PENAL CODE ANN. §

31.03(b)(1). Theft is a state jail felony if the value of the property stolen is less than $20,000 and

the property stolen is aluminum. TEX. PENAL CODE ANN. § 31.03(e)(4)(F)(i)

       The State must prove beyond a reasonable doubt that the defendant is the person who

committed the offense charged. See Miller v. State, 667 S.W.2d 773, 775 (Tex. Crim. App.

1984); Wiggins v. State, 255 S.W.3d 766, 771 (Tex. App.—Texarkana 2008, no pet.). Identity

may be proved by direct evidence or circumstantial evidence, including DNA evidence, or

reasonable inferences from such evidence. See Gardner v. State, 306 S.W.3d 274, 285 (Tex.

Crim. App. 2009); Orellana v. State, 381 S.W.3d 645, 653 (Tex. App.—San Antonio 2012, pet.

ref’d); Roberson v. State, 16 S.W.3d 156, 167 (Tex. App.—Austin 2006, pet. ref’d).

                              C. Application of the Law to the Facts

       The State concedes that Guerra could not identify Heath in court as the perpetrator. The

record shows that Guerra, the eyewitness to the offense, testified that the man he saw was in the

courtroom. When asked to describe the man’s clothing, Guerra described the man as wearing a

green jacket, a white shirt, and a grayish tie. However, Guerra then stated the man in the

courtroom had a resemblance to the man he saw on the night of the offense, but noted that the

man he saw on the night of the offense was thinner. Also, Guerra stated the offense occurred

“past midnight.” On the same day, Office Klinglesmith testified, describing the man he arrested

on the night of the offense as the man in the courtroom wearing a brown coat, white shirt, and

tie. The record reflects that man was Heath. Officer Klinglesmith stated that he was dispatched

to the area of the offense at approximately 11:00 p.m.


                                                 –4–
       The record also shows that Guerra testified the man he saw stealing the metal was a thin,

African-American man of medium height, approximately five feet seven or eight inches tall.

Guerra stated that he saw the man throw the bags of metal over the fence, climb over the fence,

put the bags of metal into a shopping cart, and “turn[] on Lamar.” Office Klinglesmith stated

that he arrived at the location less than a minute after he was dispatched and observed Heath

pushing a shopping cart in the street. The shopping cart contained aluminum in a couple of

different forms. Officer Klinglesmith testified that he stopped Heath and questioned him. Then,

he told Heath to “put that stuff back.” Office Klinglesmith followed Heath “northbound on

Lamar” to Action Metals. Heath told Officer Klinglsmith that was where he got the “stuff.”

Guerra walked up, looked at Heath, and although there was a language barrier, told Officer

Klinglesmith that Heath was the same person he had seen pushing the shopping cart.

       This issue relates to the weight assigned to Guerra’s and Office Klinglesmith’s testimony

and the credibility of the identification, which are to be resolved by the jury. See Merritt, 368

S.W.3d at 525; Brooks, 323 S.W.3d at 899. Accordingly, we conclude there was sufficient

evidence to identify Heath as the perpetrator and support his conviction.

       Issue one is decided against Heath.

                                      III. CONCLUSION

       The evidence is sufficient to support Heath’s conviction.

       The trial court’s judgment is affirmed.




                                                       /Douglas S. Lang/
Do Not Publish                                         DOUGLAS S. LANG
TEX. R. APP. P. 47                                     JUSTICE
140806HF.U05



                                                 –5–
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

RONNIE HEATH, Appellant                            On Appeal from the Criminal District Court
                                                   No. 1, Dallas County, Texas
No. 05-14-00806-CR        V.                       Trial Court Cause No. F-1453600-H.
                                                   Opinion delivered by Justice Lang. Justices
THE STATE OF TEXAS, Appellee                       Bridges and Schenck participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 26th day of August, 2015.




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