Opinion issued December 19, 2013




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                              NO. 01-12-00531-CR
                           ———————————
                  RICKIE RENARLD GOODIE, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee



                    On Appeal from the 23rd District Court
                          Brazoria County, Texas
                        Trial Court Cause No. 64138


                         MEMORANDUM OPINION

      A jury convicted appellant Rickie Renarld Goodie of the state-jail felony

offense of theft of property worth less than $1,500 with two prior convictions for

theft. See TEX. PENAL CODE ANN. § 31.03(a), (e)(4)(D) (West 2011). The trial

court sentenced him to eight years in prison. Goodie challenges the sufficiency of
the evidence to support his conviction and contends that the trial court should have

instructed the jury on the lesser-included offense of misdemeanor theft.         We

affirm.

                                   Background

      Pearland Home Depot loss prevention officer Mark Guel was standing just

inside his store’s contractors’ entrance when he observed Goodie come into the

store with a five-gallon bucket of paint in his shopping cart. The paint caught

Guel’s attention because the store had been having problems with people

shoplifting paint and later returning it for store credit. Goodie stopped at a cash

register. Cashier Adelita Molina placed security tape on the paint and on a tape

measure attached to Goodie’s belt so other employees would know that he brought

those items into the store. Molina did not place security tape on anything else, and

neither Guel nor Molina saw Goodie bring any other items into the store. Goodie’s

interaction with Molina was also captured by the store surveillance video.

      Guel followed at a distance as Goodie went to the tool department to shop.

From an adjacent aisle, Guel saw Goodie select a drill, remove the drill case’s

cardboard sleeve, take the security tape from his tape measure, stick the tape to the

drill case, and put the drill in his shopping cart. A security camera captured video

of Goodie, from the waist down, removing the drill and attaching the tape.




                                          2
      Goodie then took his shopping cart to the returns register. He left the cart

and went back into the aisles, where he selected some wood. Goodie found his

mother, who had also been in the store, and he brought her to the returns register to

pay for the wood. Goodie told the cashier that he had decided not to return the

drill; then he and his mother paid for the wood and left the store. Guel followed

them to the parking lot and asked Goodie to come to his office. In his office, Guel

confronted Goodie about the theft. Goodie claimed that he had come into the store

with the drill in his cart. When he was unable to verify this story, police arrested

Goodie.

      The indictment contained two enhancement paragraphs that elevated the

theft charge from a misdemeanor to a state-jail felony, third offense theft.     The

enhancement paragraphs alleged that Goodie was previously convicted of theft in

cause number 9834910 on August 31, 1998 and in cause number 828781 on

November 13, 1999. Goodie pleaded not guilty.

      At trial, the State called Marcey Farley, fingerprint examiner for the

Brazoria County Sherriff’s Department. She took fingerprints of Goodie on the

day she testified and attempted to match those known prints with prints contained

in various records of Goodie’s prior theft convictions. Farley testified that she

could not match the known prints with the prints contained in State’s Exhibit 12, a

certified copy of the judgment in cause number 9834910.                 Farley also


                                         3
acknowledged that Exhibit 12 named the defendant as Gerald Wade Williams not

Rickie Renarld Goodie. Farley also could not match the known prints to the prints

in State’s Exhibit 13, a certified copy of the judgment in cause number 798058.

However, Farley matched the known prints with the prints contained in State’s

Exhibit 11, a pen packet containing a copy of the judgment in cause number

828781. In that cause of action, another third-offense theft conviction, Goodie

pleaded true to 798058 and 9834910 as jurisdictional priors.

      A jury found Goodie guilty of theft of property worth less than $1,500 with

two or more previous convictions, and the trial court sentenced him to eight years

in prison after the State introduced another prior conviction to enhance

punishment. Goodie appeals from this conviction.

                                       Analysis

      Goodie raises two separate arguments challenging the sufficiency of the

evidence to support the judgment. First, he contends that State failed to prove

beyond a reasonable doubt that he stole the drill. Second, he contends that even if

the State adequately proved theft of the drill, it failed to prove the prior convictions

necessary for a state-jail felony theft conviction. He also complains that the trial

court failed to give a requested instruction on the lesser-included offense of

misdemeanor theft.




                                           4
I.       Sufficiency of the evidence

         A.    Theft

         As part of his first issue, Goodie argues that the State presented legally

insufficient evidence to prove that he was the man who stole the drill. He asserts

that his testimony and that of his mother outweigh the testimony of eyewitness

Guel.

         The State argues that it presented legally sufficient evidence to allow the

jury to conclude that Goodie stole a drill from Home Depot. The State contends

that both Guel’s testimony and the surveillance video, standing alone, were

sufficient evidence from which the jury could conclude that Goodie committed

theft.

         When evaluating the legal sufficiency of the evidence, we view the evidence

in the light most favorable to the verdict and determine whether any rational trier

of fact could have found the essential elements of the offense beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);

Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005). The standard is

the same for direct and circumstantial evidence cases. King v. State, 895 S.W.2d

701, 703 (Tex. Crim. App. 1995). We do not resolve any conflict of fact, weigh

any evidence, or evaluate the credibility of any witnesses, as this is the function of




                                          5
the trier of fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App.

1999).

      A person commits theft “if he unlawfully appropriates property with 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.” Id. § 31.03(b)(1). Considering the evidence presented at trial, we must

determine whether any rational trier of fact could have found, beyond a reasonable

doubt, that Goodie unlawfully appropriated a drill with intent to deprive Home

Depot. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.

      The testimony of a single eyewitness may constitute legally sufficient

evidence to support a conviction. See Davis v. State, 177 S.W.3d 355, 359 (Tex.

App.—Houston [1st Dist.] 2005, no pet.) (citing Aguilar v. State, 468 S.W.2d 75,

77 (Tex. Crim. App. 1971)). At trial, Guel provided eyewitness testimony that

Goodie entered the store without a drill in his cart and went to the tool area where

he selected a drill and placed security tape on it. In addition, cashier Molina also

testified that Goodie did not have a drill when he entered the store. Although the

video does not explicitly show Goodie placing security tape on the drill, it does

clearly show him entering the store without a drill and later appearing on video

with a drill in his cart. Furthermore, Goodie told a cashier that he had decided not

to return the drill and left the store without paying for the drill.


                                            6
      Goodie’s argument ultimately boils down to a plea for us to reweigh the

credibility of the witnesses and testimony presented at trial. However, the jury is

the exclusive judge of the believability of witnesses and the weight to be given

their testimony.   See Dewberry, 4 S.W.3d at 740.       We conclude that Guel’s

testimony, which was corroborated by Molina and portions of the video, provided

sufficient evidence for the jury rationally to conclude beyond a reasonable doubt

that Goodie took the drill without Home Depot’s effective consent and left the

store with the intention of depriving Home Depot of the drill. See TEX. PENAL

CODE ANN. § 31.03(a), (b)(1); Davis, 177 S.W.3d at 359; see also Lindgren v.

State, No. 01–12–00083–CR, 2013 WL 978257, at *3 (Tex. App.—Houston [1st

Dist.] Mar. 12, 2013, no pet.) (mem. op., not designated for publication)

(upholding theft conviction in the absence of video evidence when loss prevention

officer of HEB store provided eyewitness testimony).

      B.    Prior theft convictions

      Goodie next contends that the State did not adequately prove the prior theft

convictions set out in the indictment (cause numbers 9834910 and 828781).

Specifically, he argues that the State did not present sufficient evidence to prove

that he had been convicted in cause number 9834910.

      The State has the burden of proof to establish that the defendant is the same

person convicted of theft in the two prior judgments as alleged in the indictment.


                                         7
Rios v. State, 557 S.W.2d 87, 92 (Tex. Crim. App. 1977). Some methods of

proving prior convictions approved by Texas courts include: (1) testimony of a

witness who personally knows the defendant and the fact of his prior conviction

and identifies him; (2) stipulation or judicial admission of the defendant that he has

been so convicted; (3) introduction of certified copies of the judgment, sentence,

and record of the Texas Department of Corrections or a county jail including

fingerprints of the accused supported by expert testimony identifying them with

known prints of the defendant; or (4) comparison by the fact finder of a record of

conviction which contains photographs and a detailed physical description of the

named person, with the appearance of the defendant, present in court. Daniel v.

State, 585 S.W.2d 688, 690–91 (Tex. Crim. App. 1979), overruled on other

grounds by Littles v. State, 726 S.W.2d 26, 32 (Tex. Crim. App. 1984); accord

Smith v. State, 998 S.W.2d 683, 687 (Tex. App.—Corpus Christi 1999, pet. ref’d);

Fontenot v. State, 704 S.W.2d 126, 127 (Tex. App.—Houston [1st Dist.] 1986, no

pet.). While these methods are preferred, they are not exclusive. Littles, 726

S.W.2d at 32.

      The State may prove a prior conviction by documentary proof that contains

“sufficient information to establish both the existence of a prior conviction and the

defendant’s identity as the person convicted.” Flowers v. State, 220 S.W.3d 919,

921–22 (Tex. Crim. App. 2007). “Regardless of the type of evidentiary puzzle


                                          8
pieces the State offers to establish the existence of a prior conviction and its link to

a specific defendant, the trier of fact determines if these puzzle pieces fit together

sufficiently to complete the puzzle.” Id. at 923. The fact that the name of the

defendant on judgments of prior convictions is different from the name of the

defendant on trial is irrelevant if other evidence establishes the person on trial is

the same person previously convicted. Rios, 557 S.W.2d at 92; see also Garza v.

State, 548 S.W.2d 55, 56 (Tex. Crim. App. 1977).

      Although State’s Exhibit 12 shows that a person named Gerald Wade

Williams pleaded guilty to and was convicted of theft in cause number 9834910,

the State presented other evidence from which the jury could conclude that Goodie

was actually the person convicted in cause number 9834910. For example, State’s

Exhibit 13—copies of the complaint and judgment in cause number 798058 (a

previous conviction for third-offense theft)—showed that Rickie Renarld Goodie

had his name changed from Gerald Wade Williams. The complaint contained in

State’s Exhibit 13 named Gerald Wade Williams as the defendant. However, the

ultimate judgment in that cause named the defendant as Rickie Renarld Goodie.

Furthermore, the State used cause number 9834910 as one of the prior thefts used

to elevate the theft conviction in Exhibit 13 to a state-jail felony. The judgment

shows that Goodie pleaded true to the allegation that he had previously been

convicted of theft in cause number 9834910.


                                           9
      Moreover, the State introduced Exhibit 11, a pen packet containing

photographs of Goodie as well as his fingerprints and a copy of the judgment in

cause number 828781. The indictment and judgment named the defendant as

Rickie Renarld Goodie. Once again, the State alleged the conviction in cause

number 9834910 as a jurisdictional prior conviction to make the theft a state-jail

felony. Goodie again pleaded true to the alleged conviction in 9834910 as part of

his guilty plea in 828781. In addition, Marcey Farley, fingerprint examiner for the

Brazoria County Sherriff’s Department successfully matched the prints contained

in Exhibit 11 with the known prints she took from Goodie on the day she testified.

      In sum, the jury had before it evidence that Gerald Wade Williams was a

name formerly used by Goodie, evidence that he twice pleaded true to allegations

that he had been convicted of theft in cause number 9834910, and testimony that

the fingerprints contained in Exhibit 11 matched Goodie’s known prints. Although

the State did not link Goodie to the 1998 theft directly by one of the conventional

methods, we conclude that the State presented the jury with evidence from which it

could rationally conclude beyond a reasonable doubt that Goodie was the person

convicted of theft in cause number 9834910. See Flowers, 220 S.W.3d at 923. We

overrule Goodie’s first issue.

II.   Lesser-included offense




                                        10
      Goodie next argues that the trial court erred when it refused to give the jury

the option of finding him guilty of the lesser-included offense of misdemeanor

theft, if it did not find that he had been previously convicted of two theft offenses.

      An instruction on a lesser-included offense is required only if (1) the lesser-

included offense is included within the proof necessary to establish the offense

charged, and (2) some evidence exists in the record that, if the defendant is guilty,

he is guilty only of the lesser-included offense. Cavazos v. State, 382 S.W.3d 377,

382 (Tex. Crim. App. 2012). An instruction on a lesser-included offense is not

required solely because “the jury may disbelieve crucial evidence pertaining to the

greater offense, but rather, there must be some evidence directly germane to the

lesser-included offense for the finder of fact to consider before an instruction on a

lesser-included offense is warranted.” Hampton v. State, 109 S.W.3d 437, 441

(Tex. Crim. App. 2003). We consider all evidence presented at trial in determining

whether an instruction on a lesser-included offense would have been warranted.

Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011).

       Misdemeanor theft is a lesser-included offense of state-jail felony theft

because proof of the lesser-included offense of misdemeanor theft is included

within the proof necessary to establish the state-jail felony offense. Franklin v.

State, 219 S.W.3d 92, 96 (Tex. App.—Houston [1st Dist.] 2006, no pet.). Thus,

we focus our analysis on the second prong of the test for lesser-included offenses.


                                          11
      In Guess v. State, No. 12–08–00448–CR, 2010 WL 681345 (Tex. App.—

Tyler Feb. 26, 2010, pet. ref’d) (mem. op.), the appellant argued that the State

failed to adequately prove a prior conviction for driving while intoxicated. 2010

WL 681345, at *4. The indictment alleged that Guess had been convicted of

driving while intoxicated in Tarrant County. Id. at *1. The State introduced a

copy of the Tarrant County conviction and records from a Gregg County criminal

case. Id. at *5. Guess’s name was the only identifying information on the copy of

the Tarrant County conviction. Id. However, the records from Gregg County

revealed that Guess pleaded true to the Tarrant County conviction as an

enhancement in the Gregg County indictment. Id. The court concluded that

Guess’s plea of true sufficiently linked him to the Tarrant County conviction. Id.

Therefore, it held that Guess was not entitled to an instruction on a lesser-included

offense of misdemeanor driving while intoxicated because Guess admitted to the

Tarrant County conviction by pleading true and the record contained no affirmative

evidence that would have allowed the jury to conclude otherwise. Id.

      Similarly here, Goodie argues that an instruction on misdemeanor theft

would have been proper because the State failed to prove he had been convicted in

cause number 9834910. However, the record contains no affirmative evidence that

Goodie was not the person convicted in cause number 9834910. Although State’s

Exhibit 12 named the defendant as Gerald Wade Williams, the jury had before it


                                         12
evidence that Goodie had twice pleaded true to the allegation that he committed the

1998 theft identified in State’s Exhibit 12. Because appellant twice admitted that

he was convicted of the 1998 theft, and Goodie did not present any evidence

suggesting otherwise, the record did not contain evidence that would have allowed

the jury to conclude that Goodie was guilty only of misdemeanor theft. See Guess,

2010 WL 681345, at *5; Carter v. State, No. 14–08–00662–CR, 2009 WL

2998534, at *3 (Tex. App.—Houston [14th Dist.] Aug. 11, 2009, no pet.) (mem.

op., not designated for publication) (holding that an instruction on a lesser-included

offense was not necessary because appellant provided no evidence or authority to

show that proof of his prior convictions was insufficient). We overrule Goodie’s

second issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                              Michael Massengale
                                              Justice

Panel consists of Justices Keyes, Higley, and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).




                                         13
