                                                                           ACCEPTED
                                                                      06-14-00145-CR
                                                            SIXTH COURT OF APPEALS
                                                                 TEXARKANA, TEXAS
                                                                  1/9/2015 3:59:52 PM
                                                                      DEBBIE AUTREY
                                                                               CLERK



                  No. 06-14-00145-CR
                                                     FILED IN
                                              6th COURT OF APPEALS
                                                TEXARKANA, TEXAS
                      IN THE                  1/9/2015 3:59:52 PM
                COURT OF APPEALS                  DEBBIE AUTREY
                                                      Clerk
                     FOR THE
         SIXTH COURT OF APPEALS DISTRICT
                         OF
                       TEXAS
               ATTEXARKANATEXAS


                MAKE HINTON O'NEAL
                               Appellant
                           v.
                 THE STATE OF TEXAS
                                 Appel lee

                     Appealed from
The 123n1 Judicial District Court of Panola County, Texas
              Trial Court No. 2013-C-0383



           BRIEF FOR THE STATE OF TEXAS


                         Rick McPherson
                         Attorney at Law
                         418 West Sabine Street
                         Carthage, Texas 75633
                         Tel: (903) 693-7143
                         Fax:(903) 693-3038
                         mcphersonlaw@hotmail.com

                         Attorney for The State of Texas
                 IDENTITY OF PARTIES AND COUNSEL

Mark Hinton O'Neal
Appellant

Katherine Betzler
Trial Counsel for Appellant
11 O South Bolivar Street, Ste. 208
Marshall, Texas 75670

Anita Jo Barrett
Trial Counsel for Appellant
110 South Bolivar Street, Ste. 208
Marshall, Texas 75670

Kyle Dansby
Appellate Counsel for Appellant
P.O. Box 1914
Marshall, Texas 75671-1914

Danny Buck Davidson
Criminal District Attorney, Panola County, Texas
Trial Counsel for the State
Judicial Building Ste. 301
108 South Sycamore
Carthage, Texas 75633-2524

Katie Nielsen
Assistant Criminal District Attorney, Panola County, Texas
Trial Counsel for the State
Judicial Building Ste. 301
108 South Sycamore
Carthage, Texas 75633-2524

Rick McPherson
Appellate Counsel for the State
418 West Sabine Street
Carthage, Texas 75633




                                      i.
                                   TABLE OF CONTENTS

Identity of Parties and Counsel ................................ .

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Issue Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Summary of the Argument .................................... 2

Argument ................................................. 3

        Issue Presented (restated)

        WAS THE EVIDENCE PRESENTED AT
        TRIAL LEGALLY SUFFICIENT TO PROVE
        EACH ELEMENT OF THE OFFENSE CHARGED
        BEYOND A REASONABLE DOUBT ........................ 3

        Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

        Elements of the Offense ................................. 4

        Discussion of Facts Supporting Conviction ................... 5

        Response to Appellant's Complaints ....................... 10

        Conclusion ........................................... 13

Prayer ................................................... 14

Certificate of Word Count . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15




                                                   ii.
                          INDEX OF AUTHORITIES

Cases

Baker v. State
986 S.W.2d 271 (Tex. App. - Texarkana 1998, pet.ref'd) .... .. .. . . . . . 4

Brooks v. State
323 S.W.3d 893 (Tex. Crim. App. 2010) ......... . ...... .. .... 2,3, 13

Crabtree v. State
389 S.W.3d 820 (Tex.Crim.App. 2012) .. .. ... . ................... 4

Ehrhardt v. State
334 S.W.3d 849 (Tex. App. - Texarkana 2011 , pet. ref'd) ... ........ 4

Jackson v. Virginia
443 U.S. 307 (1979) .. ..... ..... .. ..... . ..... . ..... .. .. . ... 2,3

Malik v. State
953 S.W.2d 234 (Tex.Crim .App. 1997) . . .. . .. . . .... . .... .. .. ..... 4

Piland v. State
No. 06-14-00063 (Tex. App. - Texarkana 2014) . .. . . .. . .. . ......... 3

Sharp v. State
707 S.W.2d 611 (Tex. Crim. App. 1986) .... . . ....... . ...... ... .. 13

Temple v. State
342 S.W.3d 572 (Tex.App.-Houston [14 Dist.] 2010) . .. ... ......... 14

Williams v. State
235 S.W.3d 742 (Tex. Crim. App. 2007) ......................... 14

Statutes. Codes. Rules

Tex. Code Crim. Pro. Art. 38.04 . .. ... .. . .... .. ..... . . . . . . ... . . 13

Tex. Pen. Code § 6.03(a) ..... .. .. . . ....... . . .. ... ..... .... . .. 9


                                       111.
Tex. Pen. Code §31.03(a) ..................................... 4
Tex. Pen. Code §31.03(b)(1) ................................. 10
Tex. Pen. Code §31.03(e)(4)(A) .............................. 1,4




                               iv.
                      STATEMENT OF THE CASE

Nature of the Case:       This is a felony criminal case. The Defendant,
                          Mark Hinton O'Neal is accused of theft of
                          property with a value of $1,500.00 or more but
                          less than $20,000.00. The offense charged is a
                          state jail felony. Tex. Pen. Code § 31. 03(e )(4 )(A)

Course of Proceedings:    On June 24, 2014, Defendant O'Neal having
                          entered a plea of not guilty, the case proceeded
                          to trial by jury in the 123rd Judicial District Court
                          of Panola County, Texas, the Honorable
                          Charles C. Dickerson presiding (7RR 7:6-16).

Disposition:              The jury found O'Neal guilty of the offense
                          charged (CR 1:63; 9RR 115:5-13).           The
                          defendant elected to have the court assess
                          punishment.      Accordingly, the jury was
                          discharged, and the issue of punishment was
                          tried to the bench. At the conclusion of the
                          evidence, the Court sentenced O'Neal to a term
                          of 24 months in the Texas Department of
                          Criminal Justice, State Jail Division and
                          imposed a fine of $3,000.00 (CR 1:77; 11 RR
                          102:22-103:3). O'Neal thereafter perfected his
                          appeal to this Court.




                                  1.
                            ISSUE PRESENTED

            WAS THE EVIDENCE PRESENTED AT TRIAL
            LEGALLY SUFFICIENT TO PROVE EACH
            ELEMENT OF THE OFFENSE CHARGED BEYOND
            A REASONABLE DOUBT?


                      SUMMARY OF THE ARGUMENT

      Pursuant to Jackson v. Virginia, 443 U.S. 307 (1979) and Brooks v.

State, 323 S.W.3d 893, 894 (Tex. Crim. App. 2010), in a sufficiency of the

evidence review, an appellate court, reviews all of the evidence in the light

most favorable to the jury verdict to determine whether any rational jury could

have found the essential elements of the offense beyond a reasonable doubt.

The elements of the offense of theft as defined by a hypothetically correct jury

charge are that (1) a person, (2) with intent to deprive the owner of property,

(3) unlawfully appropriated property, (4) without the effective consent of the

owner. There are facts in evidence whereby a rational jury could find each of

these elements beyond a reasoanble doubt.. Appellant's complaints go to the

weight and credibility of the evidence. The jury is the exclusive judge of the

facts proved and the weight to be given the testimony. This court may not sit

as a thirteenth juror and substitute its judgment for that of the finder of fact.



                                       2.
                                 ARGUMENT

                             ISSUE PRESENTED
                                 (restated)

            WAS THE EVIDENCE PRESENTED AT TRIAL
            LEGALLY SUFFICIENT TO PROVE EACH
            ELEMENT OF THE OFFENSE CHARGED BEYOND
            A REASONABLE DOUBT?

Standard of Review

      In Brooks v. State, 323 S.W.3d 893, 894 (Tex. Crim. App. 2010) the

Court of Criminal appeals held that the legal-sufficiency standard of Jackson

v. Virginia, 443 U.S. 307 (1979), is the only standard that a reviewing court

should apply in determining whether the evidence presented at trial was

sufficient to prove each element of a criminal offense beyond a reasonable

doubt.   An appellate court, guided by that standard, reviews all of the

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

any rational jury could have found the essential elements of the offense

beyond a reasonable doubt. Jackson v. Virginia, supra at 319. In conducting

its review of the evidence, the appellate court gives deference to the

responsibility of the jury to fairly resC?lve conflicts in testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate

facts. Piland v. State, No. 06-14-00063 (Tex. App. - Texarkana 2014).

                                       3.
     The essential elements of the crime are determined by state law.

Crabtree v. State, 389 S.W.3d 820, 824 (Tex.Crim.App. 2012). Sufficiency of

the evidence is measured by the elements of the offense as defined by the

hypothetically correct jury charge for the case. Crabtree, supra at 824. The

hypothetically correct jury charge is "one that accurately 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." Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997).

Elements of the Offense

     The Appellant was charged by indictment with the state jail felony

offense of theft of property with a value of $1,500.00 or more but less than

$20,000.00, pursuant to Tex. Pen. Code §31.03(e)(4)(A). The elements of

the offense as defined by a hypothetically correct jury charge are that (1) a

person, (2) with intent to deprive the owner of property, (3) unlawfully

appropriated property, (4) without the effective consent of the owner. Baker

v. State, 986 S.W.2d 271, 274 (Tex. App. - Texarkana 1998, pet.refd);

Ehrhardt v. State, 334 S.W.3d 849, 852 (Tex. App. - Texarkana 2011, pet.

refd); Tex. Pen. Code §31.03(a).


                                       4.
Discussion of Facts Supporting Conviction

      The question becomes, what were the facts in the record that would

allow a rational jury to find beyond a reasonable doubt that Mark Hinton

O'Neal, with intent to deprive Trinity Disposal and Trucking of diesel and oil,

unlawfully appropriated the diesel and oil, without the effective consent of

Trinity Disposal and Trucking. The facts supporting the conviction are as

follows:

      While on routine patrol, Panola County Sheriff's deputy, Chris Welk,

stopped the Appellant in the early morning hours of April 17, 2013, (7RR

16:14-21 ). Welk testified that he stopped Mr. O'Neal for a defective tail lamp

on the trailer he was pulling (7RR 18:5-8). On the trailer Welk saw two large

plastic vessels containing a liquid that had a strong odor of gasoline or some

sort of diesel (7RR 24:5-8), a blue 55 gallon oil drum containing a liquid like

an oil base (7RR 23:12-14), a small pump commonly used in the oil field for

transferring liquids from one container to another, and a large amount of hose

that was still wet with diesel (7RR 27:14-24).

      Welk testified that he was suspicious (7RR 23:6-7).          His further

investigation did nothing to allay his suspicions. Although the Appellant was

driving a white 1999 Ford Super Duty Pickup, the license plates were for a


                                      5.
vehicle registered as a black 1997 Dodge (7RR20:21 -21 :4). O'Neal himself

seemed unduly nervous, apparently pacing back and forth from the front of

the vehicle to the rear of the trailer (7RR 21 :17-23). O'Neal told Welk that his

boss had asked him to go to a location and pick up the trailer. Everything was

already on the trailer when he got there (7RR 25: 1-3). Welk found it unusual

for an oil company to have a trailer with defective lights, especially a trailer

they were going to be using at night (7RR 22:7-12). More troubling was that

O'Neal couldn't tell him the location where he picked up the trailer (7RR 25:4-

9) other than describing it as a Taylor lease road somewhere on Highway

169 (7RR 35:2-3) that- in Welk's judgment- might have been in DeSoto or

Caddo Parish in Louisiana (7RR 35:11-12).         Neither Welk nor any other

investigator for the Sheriff's department were able to ~erify O'Neal's story

(7RR 48:6-12).

      Mikeal Adams testified that on April 17, 2013, he was at his girl friend's

house and he ran into O'Neal (7RR 98:17-19). Adams wanted to go to his

mother's house in Deberry, and he asked O'neal for a ride (7RR 99:1-5).

According to Adams, O'Neal was driving a white Ford F-250 pickup, pulling

a trailer with a few tanks on it (7RR 100:13-20). The Appellant did not take

Adams to his mother's home, but instead to a "Trinity" location (7RR 100: 1-2),


                                       6.
where they pulled in and started loading diesel from a big tank into the tanks

on the trailer using the pump in the back of O'Neal's truck (7RR 100:9 -

101: 15). Later that morning, Adams heard O'Neal talking on his cell phone

to a person about selling the diesel (7RR 112:17-22; RR12 State's Exhibit 1;

RR 108:2-3). When they were pulled over by Welk, Adams fled the vehicle

(7RR 102:22-23). He knew there was a warrant for his arrest for outstanding

traffic tickets, and he was afraid he would be taken to jail (7RR 103: 1-12).

Adams later talked to investigators from the Panola County Sheriff's Office

concerning the theft. He told them that the theft had occurred at the Trinity

Disposal Well location on County Road 467 in Panola County (7RR 59: 16-24).

More than that, he was able to take them to the location where the diesel was

stolen (7RR62:4-6).

     Joe Hawkins testified that he had been the general manager for Trinity

Disposal and Trucking {7RR 212:1-213:9). Trinity Disposal and Trucking

owns the Weiner salt water disposal well and the Weiner Unit {7RR 213:19-

25). At some point Hawkins became aware of some 900 gallons of diesel fuel

and some oil missing form the Trinity Weiner Unit {7RR 214:10-215:9).

Hawkins knew the Appellant, Mark Hinton O'Neal. He had been hired by

Trinity, but no longer worked for them {7RR 220: 1-6). Mark Hinton O'Neal did


                                      7.
not have permission to take diesel fuel from the Trinity Weiner Unit (7RR

220:10-13).

      Welk testified that the substance in the tanks had a strong odor of

"gasoline of some sort, diesel fuel." {7RR 24:7-8). On re-direct examination

he said that he was familiar with the smell of diesel and what was in the tanks

smelled like diesel. (7RR 46:10-16) He also testified that the hose on the

trailer was wet with diesel (7 RR 27:19-21 ). Sheriff's Office investigator

James Ferris positively identified what was on the trailer as diesel fuel (7 RR

60: 9-14 ). Mikeal Adams testified that he and the defendant loaded diesel into

the tanks on the trailer (7RR 100:11-12). Joe Hawkins testified that diesel

fuel was missing from the Trinity Weiner unit location {7RR 214:10-16).

     Joe Mims, an investigator for the Panola County Sheriff's department

testified that the tanks on the trailer were full {7RR 200:22-201: 1; 203:8-9);

that they were marked in 100 gallon increments {7RR 204:4-5), and that each

tank held 300 gallons {7RR 204:9-11 ). Hawkins testified that at the time of

the theft, diesel was selling for $3.69 to $3.79 per gallon {7RR 216:2-4).

Using the lower figure, the 600 gallons of diesel in the two tanks had a value

of $2,214.00 which was within the range charged in the indictment.

      From this summary, it is clear that there is evidence in the record to


                                      8.
support each element of the offense charged. The evidence, establishes that

the Appellant drove to the Trinity Weiner location sometime in the early

morning hours of April 17, 2013. He had a trailer with two 300 gallon tanks

on it. He had a pump and hoses suitable for transferring liquids between

containers. A person acts intentionally when it is his conscious objective or

desire to engage in the conduct or cause the result. Tex. Pen. Code §

6.03(a). Based on these facts alone, a rational jury could find that O'Neal's

conscious objective and desire was to appropriate diesel from the Trinity

Weiner Location.

     At the location he loaded diesel into the tanks on his trailer and he left,

thereby depriving Trinity, the rightful owner, of possession of the diesel.

Granted there were discrepancies in the testimony of the amount taken -

Hawkins said approximately 900 gallons were missing (7RR 215:7-12), and

Welk and Ferris estimated the amount of diesel in the tanks at 700 gallons

(7RR 24: 16-20; 61 :3-4 ). The most direct testimony - and also the lowest

figure - came from Joe Mims, who put the figure for the diesel contained in

the tanks on the trailer at 600 gallons. Using Mims' number, considering only

the value of the diesel in the tanks on the trailer and disregarding the value

of the oil stolen and the diesel in the tank in the bed of the pickup the value


                                      9.
of the property stolen is still in excess of the minimum amount charged by the

indictment.

      Adams testified that he heard O'Neal talking by telephone to an

individual about selling the diesel. This was further evidence that he intended

to deprive Trinity of the diesel.

      Finally the testimony of Hawkins established that O'Neal was not

authorized to remove diesel from the Trinity Weiner location. An appropriation

of property is unlawful when it is without the owner's effective consent. Tex.

Pen. Code §31.03(b)(1 ). Trinity did not consent to O'Neal taking its diesel, so

the appropriation is unlawful.

      Viewing all of the evidence in the light most favorable to the jury verdict,

it is clear that there is ample evidence whereby any rational jury could have

found the essential elements of the offense beyond a reasonable doubt. The

conviction must be affirmed.

Response to Appellant's Complaints

      Appellant raises several complaints concerning the sufficiency of the

evidence. First he argues that the testimony of Joe Hawkins was insufficient

to establish when the diesel was taken. Because of the passage of time,

Hawkins was unable to testify either as to the exact date he discovered the


                                       10.
diesel missing or the date he reported it (7RR 222:21-24). However there

was other evidence that Appellant had stolen the diesel on April 17, 2013.

The testimony of Mikeal Adams establishes that it was April 17, 2013, when

he encountered O'Neal and asked for a ride (7RR 98: 17). It was later that

night that they went to the Trinity Weiner location. Further, April 17, 2013, was

the date that O'Neal was stopped and apprehended with the diesel by Deputy

Welk (7 RR 16: 14-21 ). Nothing in Hawkins' testimony contradicts this. The

fact that one witness is unable to establish the date of the crime with

specificity, should not invalidate the conviction when other witnesses can

testify concerning facts that either directly or indirectly establish when the

crime occurred.

      Similarly, the fact that no fingerprint evidence was introduced, does not

result in the evidence being insufficient to support the conviction. Fingerprint

evidence is relevant to connect an alleged perpetrator to a crime. But it isn't

necessary when there is other evidence establishing the defendants

connection with the offense. Here, the testimony of Mikeal Adams and Chris

Welk affirmatively links the Appellant to the crime, even in the absence of

fingerprints.

      The appellant also complains that there were no video or audio


                                      11.
recordings of the traffic stop. Since Appellant makes no complaint that the

stop, the investigation or his subsequent arrest were in any way improper, it

is hard to see how this is relevant to the issue of sufficiency of the evidence.

Nor, did Appellant present any argument in his brief as to why the absence

of video or audio evidence renders the evidence insufficient. In any event,

Chris Welk testified about the stop and the ensuing events that lead to Mr.

O'Neal's arrest. Since there was other evidence that the jury was entitled to

consider, video or audio recordings would have been superfluous and their

absence does not render the evidence insufficient to support the conviction.

      The Appellant told Deputy Welk that he had picked up the trailer with

the tanks already loaded at a location that could have been in Louisiana. Had

there been evidence of this introduced at trial, there would have been a

conflict in the evidence that the jury would have been required to resolve. No

such evidence was introduced. Moreover, the uncontradicted testimony of

Deputy Welk was that Appellant's story couldn't be corroborated.         In the

absence of evidence admitted at trial or corroboration the jury was fully

entitled to disregard self-serving exculpatory statements the Appellant made

during the course of his arrest.

     Appellant complains that no exact measurement of the amount of liquid


                                      12.
in the tanks was ever made. That is simply not the case. Joe Mims testified

that the tanks on the trailer were full (7RR 200:22-201: 1; 203:8-9); that they

were marked in 100 gallon increments (7RR 204:4-5), and that each tank held

300 gallons (7RR 204:9-11 ). That establishes that there was 600 gallons of

diesel in the two tanks in question.

      Finally, Appellant makes the blanket assertion that, based on his

involvement in the theft, the fact that he could not immediately find the Weiner

location, and his state of intoxication, the testimony of Mikeal Adams is not

credible. At trial, Adams was subjected to a spirited and thorough cross-

examination. The jury heard all of this and more. His credibility is solely a

matter for the jury. The jury apparently believed Adams, which they were

entitled to do. The jury may choose to believe or disbelieve any portion of his

testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Tex.

Code Crim. Pro. Art. 38.04.

Conclusion

      Appellant's complaints consist of nothing but an invitation to this court

to sit as a thirteenth juror and substitute its judgment for that of the jury by

reevaluating the weight and credibility of the evidence. With all due respect

this Court is prohibited from doing that. See, Brooks v. State, 323 S.W.3d


                                       13.
893, 905 (Tex. Crim. App. 2010). Quite the opposite is true. This Court must

view all of the evidence in the light most favorable to the verdict. Temple v.

State, 342 S.W.3d 572 (Tex.App.-Houston [14 Dist.] 2010). It is the duty of

the reviewing court to ensure that the evidence presented actually supports

the conclusion that the defendant committed the crime. Williams v. State, 235

S.W.3d 742, 750 (Tex. Crim. App. 2007). In this case it does. The conviction

should be affirmed.

                                    PRAYER

      WHEREFORE, PREMISES CONSIDERED, the State of Texas

respectfully prays that the jury verdict of guilty, and the judgment of conviction

based thereon, be in all things affirmed. The State prays for such other and

further relief to which it may show itself entitled.

                                      RESPECTFULLY SUBMITTED,

                                      RICK McPHERSON
                                      418 W. SABINE STREET
                                      CARTHAGE, TEXAS 75633
                                      Telephone: (903) 693-7143
                                      Telecopier: (903) 693-3038
                                      mcphersonlaw@hotmail.com



                                      BY:      Isl Rick McPherson
                                              Rick McPherson
                                              State Bar No. 13844500

                                        14.
                                           Attorney for the State of Texas



                        Certificate of Word Count

       I, the undersigned attorney of record for Appellee, The State of Texas,
certify that Appellee's brief contains 3,003 words.

                                      /s/ Rick McPherson
                                    Rick McPherson


                           Certificate of Service

       A copy of the above and foregoing Brief of Appellee is being provided
to all counsel of record on January 9, 2015 as follows: Kyle Dansby at
kdansbylaw@gmail.com.



                                   Isl Rick McPherson
                                 Rick McPherson
                                 Attorney for Appellee




                                     15.
