                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                              NO. 02-11-00487-CR


DENIQUA FREEMAN                                                    APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


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      FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

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                           MEMORANDUM OPINION1

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                                I. INTRODUCTION

      Appellant Deniqua Freeman appeals her conviction for the state jail felony

of theft of property under $1,500 with two prior theft convictions.2 In her sole

issue, Freeman contends that the evidence is insufficient to support the jury’s

verdict. We will affirm.

      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. Penal Code Ann. § 31.03(a), (b), (e)(4)(D) (West Supp. 2012).
                                 II. BACKGROUND

        Freeman and Melissa Richardson were together in a Walmart in Arlington,

Texas, on June 16, 2011. According to Walmart’s loss prevention employees,

because the two exhibited furtive movements and suspicious actions, the

employees began to watch them closely through the store’s video surveillance

cameras. According to loss prevention, Freeman had a large purse; sometimes

it was on her arm, and sometimes it was on her cart.         But loss prevention

associated the purse as being Freeman’s. Loss prevention observed Richardson

place unpurchased items into her own purse. And although never witnessing

Freeman place anything inside her purse, loss prevention believed that she had

also done the same thing.      Loss prevention, however, did observe Freeman

switch a video game container (later discovered empty) from her cart for a new

video game from a sales associate. After making the switch, loss prevention

observed Freeman stand in front of the sales associate as Richardson stood

behind the sales associate, taking other games and putting them into

Richardson’s waistband. The video from the in-store cameras was played for the

jury.

        At one point, loss prevention observed Freeman with a package of diapers.

Freeman then left the view of the cameras. Upon returning to their view, the

diapers were no longer visible. Loss prevention presumed that Freeman had

placed them in her purse, “because the purse was large and the diapers were [no

longer] in the cart and she didn’t put the diapers on any of the side aisles.” As


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the two approached the front of the store, Freeman placed her purse in the

bottom level of her shopping cart. Freeman then purchased some $5 DVDs, but

she did not purchase diapers or video games.

      As the two left the store, loss prevention attempted to detain both women.

Both refused to cooperate and walked away from loss prevention in two different

directions. As Freeman approached her car, Officer Jose Alvarez of the City of

Arlington Police Department pulled into the parking lot and detained her. After

placing her in his patrol car, he also apprehended Richardson. At that point,

Alvarez “went ahead and . . . retrieved their purses . . . and [he] placed them on

top of the trunk of [his] patrol car.” He then searched the purses.

      Alvarez said that Freeman’s purse contained items that appeared to have

been taken without purchase: “They seemed to be items from the store due to

them being freshly new. They weren’t in the plastic bags that someone would

have purchased . . . which [made him believe] that they were taken out of the

store.” Loss prevention itemized the merchandise found in Freeman’s purse and

determined that they had been taken from Walmart without consent. Included in

the items found in Freeman’s purse were a package of diapers and video games.

According to Alvarez and loss prevention, Freeman never denied that the purse

containing these items was hers.

      A jury found Freeman guilty of the offense of theft of property under $1,500

with two prior theft convictions. The jury assessed punishment at two years in

jail. This appeal followed.


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                                  III. DISCUSSION

      In her sole issue, Freeman contends that the evidence is insufficient to

support the jury’s verdict. Specifically, Freeman contends that she “was never

seen concealing any merchandise.” Further, Freeman contends that there is “no

evidence, or merely a ‘modicum’ of evidence” that she acquired or exercised

control over the property found in her purse. We disagree.

      A.      Standard of Review

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Isassi v. State, 330 S.W.3d 633, 638

(Tex. Crim. App. 2010).     The standard of review is the same for direct and

circumstantial evidence cases; circumstantial evidence is as probative as direct

evidence in establishing the guilt of an actor. Isassi, 330 S.W.3d at 638.

      B.      Applicable Law

      The offense of theft occurs when a person unlawfully appropriates property

with the intent to deprive the owner of the property. See Tex. Penal Code Ann.

§ 31.03(a).    The term “[a]ppropriate” includes both acquiring and otherwise

exercising control over the property. See id. § 31.01(4)(B) (West Supp. 2012).

Appropriation is unlawful when (1) it is without the owner’s effective consent or

(2) the property is stolen and the defendant appropriates the property knowing it


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was stolen by another. Id. § 31.03(b). “Deprive” means to dispose of property in

a manner that makes recovery of the property by the owner unlikely.             Id.

§ 31.01(2)(C). An “[o]wner” is a person who has title to property, possession of

the property, whether lawful or not, or a greater right to possession of the

property than the defendant. Id. § 1.07(a)(35)(A) (West Supp. 2012).

      Intent to deprive is determined from the words and acts of the accused.

Griffin v. State, 614 S.W.2d 155, 159 (Tex. Crim. App. [Panel Op.] 1981);

Roberson v. State, 821 S.W.2d 446, 448 (Tex. App.—Corpus Christi 1991, pet.

ref’d). To this end, “evidence sufficient to show an accused exercised control

over property without consent of the owner, intending to deprive him of it, is

always enough to prove theft.” Chavez v. State, 843 S.W.2d 586, 588 (Tex.

Crim. App. 1992). That is, if an accused is found in possession of recently stolen

property and, at the time of her arrest, fails to make a reasonable explanation

showing her honest acquisition of the property, the jury may draw an inference of

guilt. Hardesty v. State, 656 S.W.2d 73, 76 (Tex. Crim. App. 1983). To draw the

inference of guilt from the sole circumstance of possession of stolen property, the

accused must be shown to have been in recent possession of the property after

the actual theft. Sutherlin v. State, 682 S.W.2d 546, 549 (Tex. Crim. App. 1984).

The possession must be personal, recent, and unexplained, and it must involve a

distinct and conscious assertion of right to the property.    Todd v. State, 601

S.W.2d 718, 720 (Tex. Crim. App. 1980).




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      Ordinarily, whether stolen property is recently possessed by the accused is

a question of fact. Sutherlin, 682 S.W.2d at 549. Although cases vary based on

factors such as ease of transferability of the property, generally the shorter the

period of time between the taking of the property and the defendant’s possession

of the property, the stronger the inference that the defendant knew the property

was stolen.      See Naranjo v. State, 217 S.W.3d 560, 571 (Tex. App.—San

Antonio 2006, no pet.).

      If the accused offers an explanation of her possession of recently stolen

property at the time of her arrest, the record must show that the explanation is

either false or unreasonable before the evidence supporting the conviction will be

deemed sufficient.    Adams v. State, 552 S.W.2d 812, 815 (Tex. Crim. App.

1977). Whether the accused’s explanation is false or unreasonable is a question

of fact.   Id.    Knowledge that property was stolen can also be shown by

circumstantial evidence. Chudleigh v. State, 540 S.W.2d 314, 317 (Tex. Crim.

App. 1976).

      C.      Analysis

      Here, both Alvarez and loss prevention testified that Freeman’s purse

contained items that had been recently taken from Walmart. Two of the items—

diapers and video games—had been seen in Freeman’s possession while she

was in the store. And even though she purchased some items, she did not

purchase any of the items found in her purse. Freeman demonstrated a distinct

and conscious assertion to the property found in her purse when she placed it,


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containing the items, in the bottom level of her cart and left Walmart without

paying for them. She also refused loss prevention’s attempts to escort her back

into the store. This flight demonstrated a consciousness of guilt about her having

taken the items unlawfully. Foster v. State, 779 S.W.2d 845, 859 (Tex. Crim.

App. 1989), cert. denied, 494 U.S. 1039 (1990) (“Evidence of flight is admissible

as a circumstance from which an inference of guilt may be drawn.”).

Furthermore, these items were found on her immediately upon her leaving the

store. See Jackson v. State, 12 S.W.3d 836, 839 (Tex. App.—Waco 2000, pet.

ref’d) (“Generally, the shorter the interval between the theft and the possession,

the stronger the inference, although the cases will vary according to such factors

as the ease with which such property can be transferred.”) (citing Hardage v.

State, 552 S.W.2d 837, 840 (Tex. Crim. App. 1977)). And Freeman never denied

that it was her purse and never offered an explanation of her possession of the

unpaid-for items. See Adams, 552 S.W.2d at 815.

      Viewing the evidence in the light most favorable to the verdict, we

conclude and hold that a rational factfinder could have found beyond a

reasonable doubt that Freeman took the items found in her purse from Walmart

without consent, with the intent to appropriate these items to herself and with the

intent to deprive Walmart of these items. See Tex. Penal Code Ann. § 31.03(b);

Jackson, 443 U.S. at 319, 99 S. Ct. 2789. We overrule Freeman’s sole issue on

appeal.




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                               IV. CONCLUSION

      Having overruled Freeman’s sole issue, we affirm the trial court’s

judgment.




                                            BILL MEIER
                                            JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 30, 2012




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