Opinion

Randy Sullivan Schroeter v. State

Court
Texas Court of Appeals, 1st District (Houston)
Filed
Jan 15, 2009
Status
Published
Cited by
0 cases
Authority
More cited than 35.3%

The opinion

In The

Court of Appeals

For The

First District of Texas

NO. 01-07-00633-CR

RANDY SULLIVAN SCHROETER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 412th District Court

Brazoria County, Texas

Trial Court Cause No. 50,752

MEMORANDUM OPINION

A jury found appellant, Randy Sullivan Schroeter, guilty of theft and assessed

punishment at three years imprisonment . See Tex. Pen. Code Ann. § 31.03 ( a)

(Vernon Supp. 2008). In his sole issue on appeal, appellant contends that the evidence

is factually insufficient to sustain his conviction. We affirm.

Background

In September 2005, appellant was employed by Kay Services as an operator,

laborer, and haul driver. Kay Services frequently made scrap metal deliveries to

Commercial Metals Company but did not authorize its haul drivers to accept cash

payments.

On September 20 and 21 of 2005, appellant made two scrap metal deliveries

to Commercial Metals and took cash as payment. Appellant testified that he put the

cash in a box above the sun visor of the delivery truck and returned the truck to Kay

Services without locking it. Because Hurricane Rita was approaching, appellant

asked the CEO of Kay Services, Don Boone, if he could evacuate his family using

another company truck and if he could borrow money. Don allowed the use of the

truck but denied the request for money.

During the evacuation, appellant’s father noticed that appellant had cash with

him. The father initially testified that the cash came from appellant’s paycheck, but

he admitted on cross-examination that he did not actually see appellant cash a check.

After the evacuation, appellant returned the truck to Kay Services but did not return

to work. Kay Services later discovered that cash payments had been made to

appellant by Commercial Metals.

One year after the evacuation, after appellant had been charged with the

offense, appellant had a conversation with Kay Services co-owner Marty Boone. At

trial, Marty testified that appellant admitted taking the cash and asked if the company

would drop the criminal charge if appellant paid the money back. Appellant denied

telling Marty that he took the money and claimed that he merely said he was sorry

that the money was missing.

Factual Sufficiency

In his sole issue, appellant argues that the evidence is factually insufficient to

support his conviction for theft because Don Boone, the president and CEO of Kay

Services, was not present at the time of trial and appellant’s past criminal history

clouded the minds of the jury.

Standard of Review

When conducting a factual sufficiency review, we view all of the evidence in

a neutral light. See Brown v. State , 212 S.W.3d 851, 859 (Tex. App.—Houston [1st

Dist.] 2006, pet. ref’d) (citing Ladd v. State , 3 S.W.3d 547, 557 (Tex. Crim. App.

1999)). We will set the verdict aside only if (1) the evidence is so weak that the

verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great

weight and preponderance of the evidence. Brown , 212 S.W.3d at 859 (citing Johnson

v. State , 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). Under the first prong of Johnson ,

we cannot conclude that a conviction is “clearly wrong” or “manifestly unjust” simply

because, on the quantum of evidence admitted, we would have voted to acquit had we

been on the jury. Brown , 212 S.W. 3d at 859 (citing Watson v. State , 204 S.W.3d 404,

417 (Tex. Crim. App. 2006)). Under the second prong of Johnson , we cannot declare

that a conflict in the evidence justifies a new trial simply because we disagree with

the jury’s resolution of that conflict. Id. Before finding that evidence is factually

insufficient to support a verdict under the second prong of Johnson , we must be able

to say, with some objective basis in the record, that the great weight and

preponderance of the evidence contradicts the jury's verdict. Id. In conducting a

factual sufficiency review, we must also discuss the evidence that, according to the

appellant, most undermines the jury’s verdict. Brown , 212 S.W.3d at 859 (citing Sims

v. State , 99 S.W.3d 600, 603 (Tex. Crim. App. 2003)).

We may not re-weigh the evidence and substitute our judgment for that of the

fact-finder. King v. State , 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The

fact-finder alone determines what weight to place on contradictory testimonial

evidence because that determination depends on the fact-finder’s evaluation of

credibility and demeanor. See Cain v. State , 958 S.W.2d 404, 408-09 (Tex. Crim.

App. 1997). As the determiner of the credibility of the witnesses, the fact-finder may

choose to believe all, some, or none of the testimony presented. Id. at 407 n. 5.

The Evidence

Appellant contends that the State did not establish that Kay Services did not

receive the cash payment because Don Boone was not called to testify at trial.

Appellant also notes that he testified that he left the money in the unlocked Kay

Services truck. He further contends that the confusion of the Hurricane Rita

evacuation creates reasonable doubt.

A person commits theft if he unlawfully appropriates property with the intent

to deprive the owner of it. See Tex. Pen. Code Ann. § 31.03 ( a) (Vernon Supp. 2008).

Although the evidence of appellant’s culpability is almost entirely circumstantial,

circumstantial evidence may be as probative as direct evidence in establishing guilt.

See Guevara v. State , 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). It is not necessary

that every fact point directly and independently to the defendant’s guilt; it is enough

if the conclusion is warranted by the combined and cumulative force of all the

incriminating circumstances. See Johnson v. State , 871 S.W.2d 183, 186 (Tex. Crim.

App. 1993).

Before evacuating, appellant asked Don Boone if he could borrow some

money, but his request was denied. Nevertheless, appellant’s father testified that

appellant had cash during the evacuation. Although appellant’s father believed that

the money came from appellant’s paycheck, he admitted that he did not see appellant

cash the check. Appellant also signed two scale tickets indicating that he was paid in

cash for his Sept. 20 and 21 deliveries. Kelly Reina, co-owner of Kay Services,

testified that Kay Services never received any payment for those deliveries.

Additionally, Marty Boone testified that, about one year after the evacuation,

appellant admitted to him that he took the money and asked if Don Boone, who was

Marty’s father, would drop the criminal charge if appellant repaid Kay Services .

Although appellant denied telling Marty that he took the cash, t he jury was free to

determine the weight to be given this contradictory testimony. See Cain v. State , 958

S.W.2d 404 , 408–09 (Tex. Crim. App. 1997). As the sole judge of appellant’s

credibility, the jury was also free to disbelieve appellant’s testimony that he left the

cash in the Kay Services truck. See Durand v. State , 931 S.W.2d 25, 26 (Tex.

App.—Houston [1st Dist.] 1996, pet. ref’d).

Viewing the relevant evidence in a neutral light, favoring neither the State nor

appellant, and with appropriate deference to the jury’s credibility determinations, we

conclude that the evidence supporting the verdict is not too weak to support the jury’s

finding of guilt beyond a reasonable doubt and that the weight of the evidence

contrary to the verdict is not so strong that the State could not have met its burden of

proof. See Pena v. State , 251 S.W.3d 601, 609 (Tex. App.—Houston [1st Dist.] 2007,

pet. ref’d).

Accordingly, we overrule appellant’s sole issue.

Conclusion

We affirm the judgment of the trial court.

George C. Hanks, Jr.

Justice

Panel consists of Justices Jennings, Hanks, and Bland.

Do not publish. See Tex. R. App. P. 47.2(b).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.