                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-14-00124-CR

JEFFREY TODD BLACKBURN,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee


                          From the County Court at Law
                             Walker County, Texas
                             Trial Court No. 13-0194


                           MEMORANDUM OPINION


       Jeffery Blackburn appeals from a conviction for the offense of theft of $50 or more

but less than $500. TEX. PEN. CODE ANN. § 31.03 (West 2011). Blackburn complains that

the trial court erred in the admission of a video recording because it was not properly

authenticated, erred in allowing evidence of extraneous offenses in the punishment

phase of the trial, and erred by denying his motion for directed verdict. Because we

find no reversible error, we affirm the judgment of the trial court.
Admission of Evidence

        In his first issue, Blackburn complains that the trial court abused its discretion by

admitting a DVD video recording of Blackburn in a Target store from which a flat iron

and an iPod docking station with speakers (the "speakers") were shoplifted. Woeckner,

a former employee who was a loss prevention officer at that Target location at the time

of the theft, testified that he had prepared the DVD by reviewing the security camera

footage at Target and downloading it onto a DVD which he provided to law

enforcement. Woeckner also testified that he had seen the recording which was made

on a device that made accurate recordings and that it was a true and correct copy of the

recording from the day of the offense. Target's surveillance system consisted of twelve

security cameras, and Woeckner had compiled the footage showing Blackburn in and

departing from Target and copied it onto the DVD.

        Blackburn objected to the admission of the DVD because Woeckner was not the

operator of the recorder and because he did not personally observe the events which

had been recorded.       Because of this, Blackburn argued that Woeckner could not

properly state that the recording was accurate.

        A trial court's admission of evidence is reviewed for an abuse of discretion.

Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012).           Authentication is a

condition precedent to admissibility that may be satisfied by "evidence sufficient to

support a finding that the matter in question is what its proponent claims." TEX. R.


Blackburn v. State                                                                     Page 2
EVID. 901(a). Evidence may be authenticated in a number of ways, including by direct

testimony from a witness with personal knowledge, by comparison with other

authenticated evidence, or by circumstantial evidence. Tienda, 358 S.W.3d at 638. If the

trial court's ruling that a jury could reasonably find proffered evidence authentic is at

least "within the zone of reasonable disagreement," we will not interfere with that

determination. Id.

        Woeckner testified that the security system continuously recorded from the

security cameras and that he had reviewed the footage personally and copied only the

camera angles which showed Blackburn walking around in Target with the packaging

containing the speakers in his hands and thereafter departing from the Target with the

flat iron still in its packaging. Woeckner testified that the DVD was the one he had

provided to law enforcement and it was an accurate recording. We hold that the trial

court's finding that the DVD was adequately authenticated did not constitute an abuse

of discretion.

        Later, after the DVD had been played to the jury and the State had passed the

witness, on cross-examination, Blackburn made a motion to have the DVD stricken

because Woeckner had edited the DVD to only show that footage of Blackburn in the

Target rather than copying the entire security footage from all twelve cameras from the

date in question. However, in order to preserve error, an objection to the admission of

evidence must be timely made. TEX. R. APP. P. 33.1(a); Pena v. State, 353 S.W.3d 797, 807


Blackburn v. State                                                                 Page 3
(Tex. Crim. App. 2011). "A complaint is timely if it is made 'as soon as the ground of

objection becomes apparent.'" Pena, 353 S.W.3d at 807. At a minimum, the latest the

alleged error would have become apparent was during the playing of the DVD to the

jury. Blackburn's complaint regarding any editing or alteration of the DVD was not

timely, and was therefore not preserved for our review. We overrule issue one.

Extraneous Offenses

        In his second issue, Blackburn complains that the trial court erred by allowing

evidence of three extraneous offenses during the punishment phase of his trial. The

State presented three video recordings, one from Walmart from the same day as the

instant offense, and two from Target within the next month of the instant offense. The

Walmart recording showed Blackburn leaving Walmart with two Toshiba laptops. The

first Target recording showed Blackburn walking out with a Dyson vacuum cleaner and

the second showed Blackburn attempting to leave Target with some luggage and other

items. In the second Target recording, Blackburn was confronted at the front door by

the Target manager and was prevented from leaving with the luggage and other items.

Additionally, an audio recording that had been made by law enforcement when they

questioned Blackburn prior to his arrest was also admitted into evidence during which

Blackburn was confronted about three recent thefts from Target and two from Walmart.

On that recording, Blackburn admitted that he had committed the offenses and claimed

that he had given away the items he had taken.


Blackburn v. State                                                               Page 4
        Article 37.07, section 3(a) of the Texas Code of Criminal Procedure provides that

evidence as to any matter may be offered during the punishment phase of a trial if the

trial court deems it relevant to sentencing. TEX. CODE CRIM. PROC. ANN. art. 37.07 § 3(a)

(West 2006). Evidence of extraneous crimes or bad acts is admissible if they are shown

beyond a reasonable doubt by evidence to have been committed by the defendant or if

he could be held criminally responsible for them, regardless of whether he was

previously charged with or finally convicted of the crime or act. Id.

        The three recordings that depict Blackburn taking items from Target and

Walmart, the testimony from Woeckner and Walmart's loss prevention officer

explaining how the recordings were made, and Blackburn's confession, are sufficient for

the trial court to have found that Blackburn committed the offenses beyond a

reasonable doubt. We overrule issue two.

Sufficiency of the Evidence

        In his third issue, Blackburn complains that the evidence was insufficient for the

jury to have found beyond a reasonable doubt that he committed theft as to the

speakers. The information and jury charge alleged that Blackburn committed theft of a

flat iron and electronic speakers with a value of $50 or more but less than $500.

Blackburn argues that there was no evidence that Blackburn left Target with the

speakers.




Blackburn v. State                                                                  Page 5
Standard of Review

        A challenge to the trial court's denial of a motion for an instructed verdict or a

motion for a directed verdict is treated as a challenge to the sufficiency of the evidence.

Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). The Court of Criminal

Appeals has expressed our standard of review of a sufficiency issue as follows:

        In determining whether the evidence is legally sufficient to support a
        conviction, a reviewing court must consider all of the evidence in the light
        most favorable to the verdict and determine whether, based on that
        evidence and reasonable inferences therefrom, a rational fact finder could
        have found the essential elements of the crime beyond a reasonable doubt.
        Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
        13 (Tex. Crim. App. 2007). This “familiar standard gives full play to the
        responsibility of the trier of fact fairly to resolve conflicts in the testimony,
        to weigh the evidence, and to draw reasonable inferences from basic facts
        to ultimate facts.” Jackson, 443 U.S. at 319. “Each fact need not point
        directly and independently to the guilt of the appellant, as long as the
        cumulative force of all the incriminating circumstances is sufficient to
        support the conviction.” Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).

        The Court of Criminal Appeals has also explained that our review of “all of the

evidence” includes evidence that was properly and improperly admitted. Conner v.

State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. at

326. Further, direct and circumstantial evidence are treated equally: “Circumstantial

evidence is as probative as direct evidence in establishing the guilt of an actor, and


Blackburn v. State                                                                          Page 6
circumstantial evidence alone can be sufficient to establish guilt.” Hooper v. State, 214

S.W.3d at 13. Finally, it is well established that the factfinder is entitled to judge the

credibility of witnesses and can choose to believe all, some, or none of the testimony

presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

        Theft is defined in the penal code as "unlawfully appropriat[ing] property with

intent to deprive the owner of property." TEX. PEN. CODE ANN. § 31.03(a). In defining

the various theft offenses, the word "appropriate" means "to acquire or otherwise exercise

control over property other than real property." TEX. PENAL CODE ANN. § 31.01(4)(B)

(emphasis added).      "Any removal of the property, no matter how slight, from its

customary location is sufficient to show control over the property for purposes of theft."

Nautilus Ins. Co. v. Steinberg, 316 S.W.3d 752, 756 (Tex. App.—Dallas 2010, no pet.) (citing

Baker v. State, 511 S.W.2d 272 (Tex. Crim. App. 1974)). Even if we were to assume that

the evidence was insufficient to show that Blackburn actually removed the speakers

from Target, we note that in order "[t]o show theft under Texas law, it is not necessary

to establish that the property was removed or carried away from the premises." Id. at

755-56 (citing Hill v. State, 633 S.W.2d 520, 521 (Tex. Crim. App. 1981)); see Senter v. State,

411 S.W.2d 742, 744-45 (Tex. Crim. App. 1967); Hawkins v. State, 214 S.W.3d 668, 670

(Tex. App.—Waco 2007, no pet.) ("[A]sportation—the act of carrying away or removing

property—is not an element of statutory theft.").         Here, the evidence showed that

Blackburn was in possession of the speakers while walking through Target, Woeckner


Blackburn v. State                                                                       Page 7
found the empty packaging from the speakers in the store shortly thereafter, and

Woeckner testified that he had verified that none of that type of speakers had been sold

at Target that day. We find that the evidence is sufficient to show that Blackburn

exercised control over the speakers while in Target and for the jury to have inferred that

Blackburn was the person who removed them from the packaging, constituting an

unlawful appropriation of the property.1 We overrule issue three.

Conclusion

           Having found no reversible error, we affirm the judgment of the trial court.




                                                     TOM GRAY
                                                     Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed April 23, 2015
Do not publish
[CR25]




1   Blackburn does not challenge the sufficiency of the evidence relating to the flat iron.

Blackburn v. State                                                                            Page 8
