                        NUMBERS 13-14-00305-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

BILLIE KNOLL,                                                                Appellant,

                                            v.

THE STATE OF TEXAS,                                                          Appellee.


               On appeal from the County Court at Law No. 4
                        of Nueces County, Texas.


                          MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Benavides and Perkes
               Memorandum Opinion by Justice Perkes
      Appellant Billie Knoll appeals her conviction for misdemeanor theft. See TEX.

PENAL CODE ANN. § 31.03(a) (West, Westlaw through Ch. 46 2015 R.S.). The trial court

found appellant guilty and assessed punishment at six months’ community supervision

and a fine of $500.00.      By a single issue, appellant contends the evidence was

insufficient to prove she had the requisite intent to deprive the store of the merchandise.
We affirm.

                                  I.     BACKGROUND

      Johnny Rodriguez was employed as a loss prevention officer at a Sears

department store. While observing the conduct of store patrons, Rodriguez observed

appellant removing clothing from hangers and placing the clothing into plastic Sears

shopping bags. According to Rodriguez, this conduct served as a “big alert signal,”

warranting appellant’s continued observation via the store’s security cameras. In the

course of Rodriguez’s observation, he saw appellant continue to place Sears

merchandise into shopping bags throughout the store, remove two pairs of shoes from

the children’s shoe department and place them under her filled shopping bags, and then

proceed to the automotive section of the store. At the automotive section of the store,

Rodriguez watched appellant stop at a register, speak to an attendant, and then exit the

store with her cart full of unpaid-for merchandise. This testimony was corroborated by

surveillance footage admitted into evidence and played during the trial.

      Jacob Cotton was also employed as a loss prevention officer at the store. He

reviewed the recorded surveillance footage of appellant’s earlier conduct in the store.

On the video, Cotton observed appellant “[grab] a stack of bags from the auto department

underneath the register” and begin placing merchandise into those bags. Cotton testified

that appellant made no effort to pay for the merchandise, except for the purchase of a car

detailing kit and the auto service performed on her vehicle, which she paid for with cash

about ten minutes after entering the store.

       Officer Ghezzi, an off-duty police officer working at the mall where the store was


                                              2
located, was called by the Sears loss prevention office and notified of appellant’s

behavior. Officer Ghezzi was told about a woman (appellant) “taking tags off of property

and secreting it away” by placing it into shopping bags. He and Officer Rogers, another

police officer, then went to the store. Officer Rogers joined Cotton and Rodriguez and

watched appellant, whereas Officer Ghezzi remained outside in his vehicle.         Officer

Rogers subsequently notified Officer Ghezzi that appellant was leaving the store without

having paid for the merchandise. As appellant left the store and started walking towards

her vehicle, Officer Ghezzi approached and arrested her.

       Appellant admitted during the trial that she placed the Sears merchandise into

bags and exited the store without having paid for it. She defended herself, however, by

stating that even though she exited the store with the unpaid-for merchandise, she did

not leave the store with the intent to deprive Sears of the merchandise without having

paid for it. Appellant testified that she went to Sears to have her vehicle serviced and,

anticipating a quick service, she left her purse in her vehicle. She took only her wallet

into the store. After leaving her car with the service technicians, she learned that the

service was going to take about an hour. She stated that approximately ten minutes after

arriving at the service department, she purchased a car detailing kit and unsuccessfully

attempted to retrieve a credit card from her vehicle.

       Appellant testified she then decided to shop for her children. She explained that

the reason she removed the clothes from the hangers and placed them into the shopping

bags was because she was sorting the items into bags for each child, and trying to prevent

the hangers from tearing the bags. She further explained that because she left her credit


                                            3
card in her purse, she intended to store her cart full of bagged merchandise in a certain

“glass cubbyhole thing” located inside the interlock door between the inside and outside

of the store. While between the two doors, she observed Officer Ghezzi “waiving like

something was wrong.” Based on her training as a nurse, she thought he was in distress.

Appellant testified she believed that she was responding to a perceived medical

emergency, and did not consciously take her shopping cart into the parking lot.

                             II.    SUFFICIENCY OF EVIDENCE

       By her sole issue, appellant contends the evidence was insufficient to prove she

had the requisite intent to commit a theft. Specifically, appellant argues that because

she was arrested prior to physically leaving the Sears property, which includes the parking

lot, the State did not show that she intended to commit theft.

A.     Standard of Review

       “The standard for determining whether the evidence is legally sufficient to support

a conviction is ‘whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.’” Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim.

App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307 (1979)) (emphasis in original); see

Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010) (plurality op.). The

fact-finder is the exclusive judge of the credibility of witnesses and of the weight to be

given to their testimony. Anderson v. State, 322 S.W.3d 401, 405 (Tex. App.—Houston

[14th Dist.] 2010, pet. ref'd) (citing Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App.

2008)). Reconciliation of conflicts in the evidence is within the fact-finder's exclusive


                                             4
province. Id. (citing Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000)). We must

resolve any inconsistencies in the testimony in favor of the verdict. Id. (citing Curry v.

State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000)).

       We measure the sufficiency of the evidence by the elements of the offense as

defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327

(Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997)). Such a 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. Id.

       In reviewing the sufficiency of the evidence, we look at “events occurring before,

during and after the commission of the offense and may rely on actions of the defendant

which show an understanding and common design to do the prohibited act.” Guevara v.

State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004) (citations omitted). Each fact need not

point directly and independently to the guilt of the appellant, as long as the cumulative

effect of all the incriminating facts are sufficient to support the conviction. Id. (citing

Alexander v. State, 740 S.W.2d 749, 758 (Tex. Crim. App. 1987) (en banc)).                The

evidence is sufficient if the conclusion of guilt is warranted by the combined and

cumulative force of all the incriminating circumstances. Russell v. State, 665 S.W.2d

771, 776 (Tex. Crim. App. 1983)

B.     Applicable Law

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


                                              5
deprive the owner of the property. TEX. PENAL CODE ANN. § 31.03(a). A person acts

with intent when it is her conscious objective or desire to engage in the conduct or cause

the result. Id. § 6.03(a). Deprivation is not an element of intent to deprive; therefore,

the State need not prove actual deprivation in order to prove intent to deprive. Rowland

v. State, 744 S.W.2d 610, 612 (Tex. Crim. App. 1988).            While evidence of actual

deprivation may be evidence of intent to deprive, other evidence may also indicate

whether intent to deprive exists. Id. Criminal intent is necessary to establish theft. See

Ellis v. State, 877 S.W.2d 380, 383 (Tex. App.—Houston [1st Dist.] 1994, pet. ref'd).

C.     Discussion

       During the trial, the trial court heard testimony that appellant acted in a suspicious

manner, removed clothes from hangers, removed price tags from clothes, placed

merchandise into shopping bags which she took from under a register, removed shoes

from boxes and placed them under the filled shopping bags, and walked out of the store

with a shopping cart full of unpaid merchandise. The court also heard testimony that

appellant, prior to walking out of the store, spoke to a checkout attendant, who then

proceeded to chase her as she walked out of the store. The court then heard Officer

Ghezzi’s testimony that he intercepted appellant after she left the store with unpaid

merchandise while she was walking toward her vehicle. Lastly, the trial court viewed the

videotape, and considered appellant’s conflicting explanations regarding why she bagged

the items and left the store without paying.

       The reconciliation of the conflicting testimony “is within the fact-finder’s exclusive

province.” See Wyatt, 23 S.W.3d at 30. In weighing the credibility of the two accounts


                                               6
and reconciling the inconsistencies in the testimony, the trial court was not obligated to

believe appellant’s version of events. See Anderson, 322 S.W.3d at 405 (“The fact-

finder is the exclusive judge of the credibility of witnesses and of the weight to be given

to their testimony”). We conclude that the cumulative force of the evidence is sufficient

to lead a rational trier of fact to believe appellant possessed the requisite intent to commit

theft. See Guevara, 152 S.W.3d at 49.

                                    III.    CONCLUSION

       The trial court’s judgment is affirmed.



                                                     GREGORY T. PERKES
                                                     Justice

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

Delivered and filed the
23rd day of July, 2015.




                                              7
