Opinion issued March 12, 2013.




                                    In The

                             Court of Appeals
                                   For The

                        First District of Texas
                          ————————————
                            NO. 01-12-00083-CR
                          ———————————
            CHRISTOPHER MICHAEL LINDGREN, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee



                   On Appeal from the 85th District Court
                           Brazos County, Texas
                   Trial Court Case No. 10-1703-CRF-85



                        MEMORANDUM OPINION

     The State charged Christopher Lindgren with theft of property valued at less

than $1,500, with two or more prior convictions, a state jail felony. See TEX.

PENAL CODE ANN. § 31.03(e)(4)(D) (West Supp. 2012). A jury heard the case
against Lindgren and found him guilty of the offense. Lindgren and the State

reached a plea deal as to punishment: two years’ incarceration, to be probated for

five years, contingent on Lindgren’s payment of a $500 fine, completion of anger

management classes, and service of 90 days’ detention in the Brazos County Jail.

On appeal, Lindgren contends that (1) the evidence is insufficient to support his

conviction, and (2) the trial court erred in admitting evidence of Lindgren’s two

prior theft convictions. We affirm.

                                      Background

I.    Facts

      One afternoon in January 2010, Lindgren entered an H.E.B. Supermarket in

Brazos County, Texas, and headed to the aisle containing DVDs for sale. Jonathan

Carrizales, the store’s Loss Prevention Manager, was on duty that day. Lindgren

caught Carrizales’s attention when he entered the store.     Carrizales followed

Lindgren and saw him select a DVD, then head for the baby care products aisle.

The store has apprehended many shoplifters in that area because that aisle has no

surveillance camera. Carrizales continued to observe Lindgren as he unwrapped

the DVD and put it inside the front of his pants. Then, Lindgren grabbed packages

of baby wipes and diapers headed out of the baby care products aisle. When

Lindgren left, Carrizales retrieved the discarded DVD wrapper and followed




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Lindgren to the front of the store. Lindgren purchased the baby care products, but

not the DVD, which was concealed in his pants.

      Lindgren left the store through the side doors near the pharmacy.         No

security alarm sounded; Lindgren had removed the DVD’s sensor when he took off

its clear plastic wrapper. When Lindgren exited the store, Carrizales caught up

with him and confronted him. Carrizales asked Lindgren to return inside and

asked him where the DVD was. He accompanied Lindgren to a register, where

Lindgren pulled the DVD from his pants, placed it on the register belt, and said, “I

want to pay for that.”

      From the back office, Store Manager Neil Krebs saw Lindgren remove the

DVD from his pants and place it on the counter. Carrizales notified Krebs that he

had apprehended Lindgren and called the police. According to H.E.B. policy,

Krebs waited in the office with Carrizales and Lindgren for the police to arrive. As

they waited, Lindgren became belligerent; he threatened Krebs and Carrizales that

he would assault them if he encountered them in the street, and he also insulted a

supervisor who stopped by the office.

      Lindgren testified in his own defense. He denied stealing the DVD and

explained that he had stopped by the DVD section to select a Wall-E DVD for his

girlfriend’s three-month-old son, but then decided it was too expensive. Lindgren

explained that would not have stolen a DVD; he carried approximately ninety

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dollars, enough to cover his purchases and the DVD. According to Lindgren, the

H.E.B. employees framed him because of something that happened while he was

working at another H.E.B. in the area. Lindgren testified that, shortly after he

completed some construction work on the home of an H.E.B. co-worker’s brother,

the police searched the home and found drugs. Lindgren believed that his co-

workers thought he had reported the brother to the police and considered Lindgren

a “snitch.” Carrizales testified that he had not met Lindgren before apprehending

him, but Lindgren told the jury that Carrizales was an acquaintance he met while

playing darts.

II.   Proceedings below

      Lindgren’s trial counsel moved to exclude evidence of Lindgren’s two prior

convictions before the guilt-innocence phase of trial. The motion declares that

“[t]he Defendant is willing to stipulate outside the presence of the jury that he has

twice before been convicted of theft.” As relief, the motion requests that the trial

court “order and instruct the District Attorney and the District Attorney’s

representatives and witnesses, not to elicit or give testimony respecting, alluding to

. . . his prior convictions until a hearing has been held outside the presence of the

jury, at which time this Court can determine the admissibility of such matters.” In

arguing the motion, trial counsel presented the proposed stipulation as follows:




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      DEFENSE COUNSEL: And, Judge, also for the sake of a complete
          record I would like to ask my client if he’s willing to stipulate
          that he’s twice before been convicted of theft offenses. And . . .
          would like to ask him that on the record . . . in support of my
          argument on his motion to exclude.
Counsel then turned to Lindgren and asked:

      DEFENSE COUNSEL: And have I expressed to you that if the court
          were of a mind to grant the motion to exclude, it would be to
          your advantage to actually stipulate to the prior theft
          convictions?

      APPELLANT:          Yes, sir.
      DEFENSE COUNSEL: And have — are you acknowledging for the
          limited purpose of this hearing that you’ve twice before been
          convicted of theft?

      APPELLANT:          Yes, sir.
The trial court heard further arguments from counsel and denied Lindgren’s motion

to exclude.

                                      Discussion

I.    Evidentiary Sufficiency

      A.      Standard of review

      Under the sufficiency-of-the-evidence standard of review applicable to

criminal cases, evidence is insufficient to support a conviction if, considering all

the record evidence in the light most favorable to the verdict, no rational factfinder

could have found that each essential element of the charged offense was proven

beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.


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2781, 2789 (1979); In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071 (1970);

Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State,

235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Viewed in the light most favorable

to the verdict, the evidence is insufficient in two circumstances: (1) when the

record contains no evidence, or merely a “modicum” of evidence, probative of an

element of the offense; or (2) when the evidence conclusively establishes a

reasonable doubt. See Jackson, 443 U.S. at 314, 318 n.11, 320, 99 S. Ct. at 2786,

2789 n.11; Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750. Additionally,

the evidence is insufficient as a matter of law if the acts alleged do not constitute

the criminal offense charged. Williams, 235 S.W.3d at 750.

      An appellate court determines “whether the necessary inferences are

reasonable based upon the combined and cumulative force of all the evidence

when viewed in the light most favorable to the verdict.” Hooper v. State, 214

S.W.3d 9, 16–17 (Tex. Crim. App. 2007). Circumstantial evidence is as probative

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

alone can be sufficient to establish guilt. Id. An appellate court presumes that the

factfinder resolved any conflicting inferences in favor of the verdict and defers to

that resolution. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235

S.W.3d at 778. An appellate court also defers to the factfinder’s evaluation of the

evidence’s credibility and weight. See Williams, 235 S.W.3d at 750.

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      B.    Theft of less than $1,500

      The legal sufficiency of the evidence is measured by the elements of the

offense, as defined by a hypothetically correct jury charge. Malik v. State, 953

S.W.2d 234, 240 (Tex. Crim. App. 1997). The indictment charged that Lindgren

“unlawfully appropriate[d], by acquiring or otherwise exercising control over

property, to wit: A DVD, of the value of less than $1,500, from . . . H.E.B., the

owner thereof, with intent to deprive the owner of the property,” and that, before

committing that offense, Lindgren had been twice convicted of theft, and identified

those prior convictions. Under the applicable statute, a person commits theft if he

unlawfully appropriates property with intent to deprive the owner of it without the

owner’s effective consent. TEX. PENAL CODE ANN. § 31.03(a) (West 2012).

      C.    Analysis

      Carrizales testified that he watched Lindgren remove the wrapper from a

DVD and stuff it down his pants, pick up some baby products, head to the front of

the store, pay for the baby products, and then leave the store. The jury reasonably

could have inferred from this testimony that Lindgren tore off the wrapper and

concealed the DVD in his pants to avoid detection when he removed it from the

store. Lindgren’s attempt to conceal the DVD is probative of his awareness that he

was engaging in wrongful conduct. See Guevara v. State, 152 S.W.3d 45, 50 (Tex.

Crim. App. 2004); Tezino v. State, 765 S.W.2d 482, 485 (Tex. App.—Houston [1st


                                        7
Dist.] 1988, pet. ref’d). The jury was also entitled to reject Lindgren’s explanation

of the events as implausible. See id.

      Lindgren observes that the State failed to corroborate many of the disputed

facts, and its witnesses proffered inconsistent testimony about factual details, such

as the placement of the price tag on the DVD and the precise manner in which

Lindgren concealed the DVD on his person.             He claims that Carrizales’s

eyewitness testimony should have been supplemented with video recordings from

the store’s security cameras and the jury should have had the opportunity to view

the plastic wrap that, according to Carrizales’s testimony, Lindgren had removed

from the DVD case. But neither claim renders the conviction legally infirm.

These observations instead challenge the credibility of the witnesses and the

weight of the evidence, considerations that, out of deference to the fact-finder, do

not play a part in our appellate review. See Brooks v. State, 323 S.W.3d 893, 899–

90 (Tex. Crim. App. 2010). As the sole judge of a witness’s credibility and the

weight of the testimony, the jury was free to resolve conflicts in testimony. See

Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). We hold that a

rational trier of fact reasonably could have found that Lindgren appropriated the

DVD—H.E.B.’s property—by acquiring or exercising control over it with the

intent to deprive H.E.B. of it.




                                         8
II.   Admissibility of prior convictions

      Lindgren relies on Tamez v. State, 11 S.W.3d 198 (Tex. Crim. App. 2000),

in asserting that the trial court caused harmful error in admitting the judgments

reflecting his two prior convictions. In Tamez, the defendant was charged with

driving while intoxicated, a third-degree felony if the State proves the defendant

had two prior DWI convictions. Id. at 199. The indictment alleged that the

defendant had six prior convictions. Id. The defendant offered to stipulate to two

if the trial court excluded any evidence of the prior convictions at trial. Id. The

trial court refused the offer, and, at the start of trial, over the defendant’s objection,

allowed the prosecutor to read the entire indictment to the jury. Id. The trial court

also admitted into evidence, over the defendant’s objection, the prior judgments

against him. Id.

      The Court of Criminal Appeals concluded that article 36.01 of the Texas

Code of Criminal Procedure, which requires the indictment to be read to the jury,

applies to allegations of prior convictions recited in the indictment, if they serve to

establish jurisdiction and are elements of the charged offense, not merely for the

purpose of enhancement in sentencing. Id. at 203. It reasoned:




                                            9
      In cases where the defendant agrees to stipulate to the two prior . . .
      convictions, we find that the proper balance is struck when the State
      reads the indictment at the beginning of trial, mentioning only the two
      jurisdictional prior convictions, but is foreclosed from presenting
      evidence of the convictions during the case-in-chief. This allows the
      jury to be informed of the precise terms of the charge against the
      accused, thereby meeting the rationale for reading the indictment,
      without subjecting the defendant to substantially prejudicial and
      improper evidence during the guilt/innocence phase of the trial.
11 S.W.3d at 202–03. But the Court held that the trial court had abused its

discretion in admitting evidence beyond the two prior convictions that constitute an

element of the crime.

      Lindgren’s case differs from Tamez in two significant respects: Lindgren did

not make an unconditional offer to stipulate to his prior convictions, as the

defendant did in Tamez, and the trial court did not admit any evidence of any

conviction beyond the two necessary to prove the charged offense. Lindgren’s

stipulation to the prior theft convictions, which was conditioned on the trial court’s

ruling in his favor, had no effect outside of the pretrial hearing on his motion to

exclude. Lindgren asked the trial court to prevent the State from making any

mention of the fact of Lindgren’s prior convictions during trial and that the

stipulation be mentioned only “outside the presence of the jury.” Even when the

defendant stipulates to his prior convictions, however, they remain a legitimate

subject of voir dire, opening statements, closing arguments, the reading of the

indictment, and jury instructions. See Hollen v. State, 117 S.W.3d 798, 802 (Tex.


                                         10
Crim. App. 2003) (declaring that “the jury should be informed of the stipulation, as

the two prior convictions are elements of the offense that must be proven to the

factfinder”); Flowers v. State, 124 S.W.3d 801, 803–04 (Tex. App.—Houston [1st

Dist.] 2003, pet. ref’d) (relying on Hollen to reject claim of ineffective assistance

based on trial counsel’s failure to object to State’s publication to jury of

defendant’s stipulation to prior convictions because, “even if counsel had objected,

the trial court would not have erred in admitting the testimony or evidence”); see

also Herring v. State, 147 S.W.3d 390, 395–96 & n.19 (Tex. Crim. App. 2004)

(explaining that trial court correctly concluded that, even assuming that trial court

erred in admitting State’s further references during trial to defendant’s prior

offense, any error was harmless because “[t]he jury would, of course, have been

informed of the stipulation,” and therefore, would have known the identity of the

prior offense). In asking that the trial court prohibit the state from making any

reference to the two prior convictions—even though they are elements of the

charged offense—Lindgren’s request goes beyond the bounds of a simple offer to

stipulate, which would have been error to deny. See Hollen, 97 S.W.3d at 154

(citing Robles v. State, 85 S.W.3d 211, 213 (Tex. Crim. App. 2002), and Tamez, 11

S.W.3d at 201). The trial court’s denial of the motion to exclude meant that the

State could not use Lindgren’s conditional stipulation before the jury; it needed to

present evidence in its case-in-chief to prove Lindgren’s two prior convictions.

                                         11
See Gibson v. State, 995 S.W.2d 693, 696 (Tex. Crim. App. 1999) (observing, in

DWI case, that “[t]he prior intoxication-related offenses are elements of the

offense of driving while intoxicated [defined under section 49.09(b) of the Texas

Penal Code]. They define the offense as a felony and are admitted into evidence as

part of the State’s proof of its case in chief during the guilt-innocence stage of the

trial.”).1

       “To establish that a defendant has been convicted of a prior offense, the

State must prove beyond a reasonable doubt that (1) a prior conviction exists, and

(2) the defendant is linked to that conviction.” Flowers v. State, 220 S.W.3d 919,

921 (Tex. Crim. App. 2007). While not the only way to prove a prior conviction,

evidence of a certified copy of the final judgment and sentence is generally a

“preferred and convenient means” of proof, id. at 921–22, which is what happened

here. We hold that the trial court did not abuse its discretion in admitting the

certified copies of the prior convictions.




1
       Lindgren does not appeal the trial court’s ruling on his motion to exclude.
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                                   Conclusion

      We hold that legally sufficient evidence supports the judgment and that the

trial court did not err in admitting evidence of Lindgren’s two prior theft

convictions. We therefore affirm the judgment of the trial court. All pending

motions are dismissed as moot.




                                               Jane Bland
                                               Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

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




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