Anthino Bernard Ballard v. State

Opinion issued February 10, 2011

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-00246-CR

———————————

Anthino Bernard

Ballard , Appellant

V.

The State of Texas , Appellee

On

Appeal from the 174th District Court

Harris

County, Texas

Trial Court Case No. 1240388

MEMORANDUM OPINION

Appellant, Anthino Bernard Ballard, was

charged by indictment with theft. [1] Appellant pleaded not guilty. A jury found appellant guilty as

charged. Appellant pleaded true to the

allegation in one enhancement paragraph that he had previously been convicted of

aggravated robbery, and the jury assessed punishment at 7 years’ confinement. In two points of error, appellant challenges

the sufficiency of the evidence to establish: (1) that he stole stainless steel

of a value of $1,500 to $20,000; (2) his identity as the thief; and (3) that

his prior conviction of aggravated robbery was final.

We affirm.

Background

Appellant was an employee of National Oil Varco in July

2008. The location where appellant

worked handled repairs for drilling equipment used in the oil and gas

industry. The day before any work on a

project was to begin, the necessary parts would be placed on pallets in one of

the staging areas. Some of the staging

areas were inside the main building.

Some of the staging areas were outside of the main building. At time of the incident, the outside staging

areas were connected to the employee parking lot without any fencing to

separate the areas. On July 18, 2009,

some parts had been placed on pallets in one of the outside staging areas for a

project that appellant and his group were slated to work on the next day.

A little after 5:00 a.m. the next morning, Edwin Carries,

another employee of National Oil Varco, was seated on some pallets outside the

main building as men in his group were cleaning out the work area with

blowers. Carries was outside to avoid

breathing in the dust created by the blowers.

As he sat outside in the dark, he saw appellant driving a forklift to

one of the pallets in the outside staging area, lift the pallet, and drive to

his car in the parking lot. Carries then

saw appellant open one of the passenger doors and load the parts on the pallet

into his car. Appellant got in his car

and drove away. Carries reported what he

saw to his supervisor.

Carries testified that, though he did not know appellant

by name, he had seen him at work numerous times previously and recognized him

when he saw him take the missing parts.

When he told his supervisor what he had seen, Carries gave a general

physical description of appellant and identified the group with whom appellant

worked. Carries was later shown a photo

of appellant, and Carries identified appellant as the person he saw take the

missing parts.

Video surveillance from that morning was admitted into

evidence, comprising eight clips ranging from a few seconds to five minutes in

length. The first clips show an SUV

driving onto the property and driving to an area outside of the view of the

surveillance cameras. Another clip shows

a man walking from the area where the SUV had driven. Other clips show the same or a similar man

driving a forklift. In one clip, the

forklift is not carrying anything. In

another clip, the forklift is carrying a pallet, driving in the direction the

SUV had driven earlier. Subsequent clips

show the SUV driving away from that area and leaving the property. None of the videos recording the relevant

events contain enough detail to identify the person in the video. The time stamp on the video shows the

incident began around 5:09 a.m. and ended around 5:30 a.m. Appellant clocked in for work that day at

5:51 a.m.

The parts were discovered to be missing the same day. An inventory showed that 20 parts were

missing and that the parts had been purchased for a total of $5,475.16. The evidence at trial established that all of

the stolen parts were made of stainless steel and could have been resold for a

total of $9,125.26.

At trial, during the punishment phase of the trial,

appellant pleaded true to allegations of certain prior convictions, including

the offense of aggravated robbery. The

jury found this enhancement, among others, to be true and assessed punishment

at 7 years’ confinement.

Sufficiency of the Evidence

In two points of error, appellant challenges the

sufficiency of the evidence to establish: (1) that he stole stainless steel of

a value of $1,500 to $20,000; (2) his identity as the thief; and (3) that his

prior conviction of aggravated robbery was final.

A.

Standard of Review

This Court reviews sufficiency-of-the-evidence challenges applying

the same standard of review, regardless of whether an appellant presents the

challenge as a legal or a factual sufficiency challenge. See Ervin

v. State , No. 01–10–00054–CR, 2010 WL 4619329 , at *2–4 (Tex. App.—Houston

[1st Dist.] Nov. 10, 2010, pet. filed) (construing majority holding of Brooks v. State , 323 S.W.3d 893, 912 ,

924–28 (Tex. Crim. App. 2010) ). This standard of review is the standard

enunciated in Jackson v. Virginia ,

443 U.S. 307, 319 , 99 S. Ct. 2781, 2789 (1979).

See Ervin , 2010 WL 4619329 , at

*2. Pursuant to this standard, evidence

is insufficient to support a conviction if, considering all the record evidence

in the light most favorable to the verdict, no rational fact finder could have

found that each essential element of the charged offense was proven beyond a

reasonable doubt. See Jackson , 443 U.S. at 319 , 99 S. Ct. at 2789 ; 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). We can hold evidence to be insufficient under

the Jackson standard in two

circumstances: (1) the record contains no evidence, or merely a “modicum” of

evidence, probative of an element of the offense, or (2) 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,

2789; see also Laster , 275 S.W.3d at

518 ; Williams , 235 S.W.3d at 750 .

The sufficiency-of-the-evidence

standard gives full play to the responsibility of the fact finder to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts. See

Jackson , 443 U.S. at 319 , 99 S. Ct. at 2789 ; Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). An appellate court presumes that the fact

finder resolved any conflicts in the evidence in favor of the verdict and

defers to that resolution, provided that the resolution is rational. See

Jackson , 443 U.S. at 326 , 99 S. Ct. at 2793 . In viewing the record, direct and

circumstantial evidence are treated equally; 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. Clayton ,

235 S.W.3d at 778 . Finally, the

“cumulative force” of all the circumstantial evidence can be sufficient for a

jury to find the accused guilty beyond a reasonable doubt. See

Powell v. State , 194 S.W.3d 503, 507 (Tex. Crim. App. 2006).

B.

Theft of Stainless Steel of a Value of $1,500 to

$20,000

In the first part of his first point of error, appellant

argues that the evidence was insufficient to establish beyond a reasonable

doubt that all of the items stolen were stainless steel and that they have a

value between $1,500 and $20,000. [2]

The indictment alleged that appellant,

on or about July 19, 2008, did then and there unlawfully,

appropriate, by acquiring and otherwise exercising control over property,

namely STAINLESS STEEL, owned by HARRELL E. WHITNELL, hereafter styled

Complainant, of the value of over one thousand five hundred dollars and under

twenty thousand dollars, with the intent to deprive the Complainant of the

property.

The charge instructed the jury that they could only

find appellant guilty if they found

from the evidence beyond a reasonable doubt that on or

about the 19th day of July, 2008, in Harris County, Texas, the defendant,

Anthino Bernard Ballard, did then and there unlawfully, appropriate, by

acquiring or otherwise exercising control over property, namely, stainless

steel, owned by Harrell E. Whitnell, of the value of over one thousand five

hundred dollars and under twenty thousand dollars, with the intent to deprive

Harrell E. Whitnell of the property.

A person commits the offense of theft if he unlawfully

appropriates property with intent to deprive the owner of property. Tex.

Penal Code Ann. § 31.03(a) (Vernon Supp. 2010). The theft is a state jail felony if the value

of the stolen property is $1,500 or more but less than $20,000. Id.

§ 31.03(e)(4)(A). If personal property

is alleged in an indictment, that property must be sufficiently

identified. Tex. Code Crim. Proc. Ann. art. 21.09 (Vernon

2009). Proof of the identity of the

property as required by article 21.09 becomes a part of the State’s burden of

proof at trial. Green v. State , 578 S.W.2d 411, 415 (Tex. Crim. App. 1979). Accordingly, it was a part of the State’s

burden of proof to establish that the stolen parts were stainless steel and that

they had a value between $1,500 and $20,000.

See Tex. Penal Code Ann. § 31.03(e)(4)(A); Tex. Code Crim. Proc. Ann. art. 21.09.

1.

Stainless steel

Carries, the employee that witnessed the theft, said he

could see the parts that were on the pallet due to the bright lights that were

on just outside the main building.

Carries testified that the parts were stainless steel. Brad Ortego, a fraud examiner working for

National Oil Varco, testified that all of the parts that had been identified as

stolen had been on one pallet. He also

testified that all of the parts on the pallet in question had been stolen. Carries testified that different kinds of

materials are not mixed on one pallet.

Appellant argues that two of the witnesses, Randall

Strickland and Wesley Germany, testified that the stainless-steel supplies at

National Oil Varco were kept inside the building, while the theft described by

Carries occurred outside of the building.

Both Strickland and Germany testified that stainless steel

parts were stored inside the

building. However, the uncontradicted

testimony at trial also established that, the day before any work on a project

was to begin, the necessary parts would be placed on pallets in one of the

staging areas. Some of the staging areas

were inside the main building, while some of the staging areas were

outside. Germany testified that he did not

know where the stolen parts were on the day that they were stolen. Strickland, the general manager for that

location of National Oil Varco, was the only one to testify that the stolen

parts were inside the building on the day of the theft. The final exchange on this matter occurred as

follows:

Q. Okay. The stainless steel material that was stolen

from [National Oil Varco] on July 19th, that was located inside of the

facility; is that not correct?

A. Yes.

Q. It

wasn’t located outside of the facility?

A. No.

Q. You’re

positive about that?

A. Yes,

unless it was moved out. When it was brought out of the work-in-progress

inventory, it was staged up in that area. There’s [sic] forklifts in and out

all the time.

Strickland also testified that he did not do any

investigation on his own into the theft.

Even if we were to take Strickland’s testimony as an unqualified

assertion that the stolen parts were inside the building at the time of the

theft, this testimony simply creates a conflict in the testimony. It was within the jury’s discretion to

believe the testimony that the stolen parts were outside at the time of theft

and disbelieve the testimony that the stolen parts were inside. See

Jackson , 443 U.S. at 319 (holding it is responsibility of jury to fairly

resolve conflicts in testimony, to weigh evidence, and to draw reasonable inferences

from facts); Williams , 235 S.W.3d at 750 (same).

Appellant also argues that “some of the materials

described were carbon rather than stainless steel.” Appellant cites to Germany’s testimony that

two parts pictured in an exhibit were carbon, not stainless steel. The relevant exhibit was introduced by

appellant and admitted for demonstrative purposes only. The picture showed examples of what some of the

stolen items looked like. No one

testified that the parts depicted in the exhibit were the actual stolen parts,

and no one testified that the parts depicted in the exhibit were of the same

material as the stolen parts. [3] The material composition of the parts

depicted in appellant’s demonstrative example, then, is irrelevant to our

analysis of the sufficiency of the evidence to establish that the stolen parts

were stainless steel.

We hold that there was sufficient evidence in the record to

establish that the stolen parts were stainless steel.

2.

Value between $1,500 and $20,000

An inventory showed that 20 parts were missing and that

the parts had been purchased for a total of $5,475.16. One of the exhibits admitted into evidence

showed the name of the parts missing, the number of each part missing, the

purchase value, and the resale value.

The evidence at trial established that all of the stolen parts were made

of stainless steel and could have been resold for a total of $9,125.26.

Appellant argues that there was no testimony as to the

value of the pieces which were described as carbon. This argument is a continuation of

appellant’s argument that Germany testified that some of the parts depicted in

appellant’s demonstrative exhibit were made of carbon. There was no testimony at trial that any of

the stolen parts were made of carbon.

Accordingly, all of the evidence regarding the value of the stolen parts

related to stainless steel parts.

We hold that there was sufficient evidence in the record

to establish that the stolen parts had a value between $1,500 and $20,000.

C.

Identity

In the second part of his first point of error, appellant

argues that there was insufficient evidence to establish that he was the thief.

A little after 5:00 a.m. on the day of the theft, Carries

was seated on some pallets outside the main building as men in his group were

cleaning out the work area with blowers.

Carries was outside to avoid breathing in the dust created by the

blowers. As he sat outside in the dark,

he saw appellant driving a forklift to one of the pallets in the outside

staging area, lift the pallet, and drive to his car in the parking lot. Carries then saw appellant open one of the

passenger doors and load the parts on the pallet into his car. Appellant got in his car and drove away. Carries reported what he saw to his

supervisor.

Carries testified that, though he did not know appellant

by name, he had seen him at work numerous times and recognized him when he saw

him take the missing parts. When he told

his supervisor what he had seen, Carries gave a general physical description of

appellant and identified the group appellant worked with. Carries was later shown a photo of appellant,

and Carries identified appellant as the person he saw take the missing parts.

Video surveillance from that morning was admitted into

evidence, comprising eight clips ranging from a few seconds to five minutes in

length. The first clips show an SUV

driving onto the property and driving to an area outside of the view of the

surveillance cameras. Another clip shows

a man walking from the area where the SUV had driven. Other clips show the same or a similar man

driving a forklift. In one clip the

forklift is not carrying anything. In

another clip, the forklift is carrying a pallet, driving in the direction the

SUV had driven earlier. Subsequent clips

show the SUV driving away from that area and leaving the property. None of the videos recording the relevant

events contain enough detail to identify the person in the video. The time stamp on the video shows the

incident began around 5:09 a.m. and ended around 5:30 a.m. Appellant clocked in for work that day at

5:51 a.m.

Appellant asserts that Carries testified that he did not

know whether the items on the pallet were stainless steel and was not sure

what, if anything, was stolen by appellant.

The portion of Carries’s testimony that appellant cites concerns

Carries’s knowledge of what specific parts were stolen, not whether appellant

stole stainless steel. In the same

portion of the record, Carries testified that he clearly saw that the parts

taken by appellant were stainless steel and that he saw appellant load these

parts into appellant’s car.

Appellant also complains of a portion of Carries’s

testimony where Carries watches the surveillance video and has trouble

identifying specifics of what he sees in the video. Carries personally witnessed the offense take

place. His testimony concerning his

ability to view details on the surveillance video does not conflict with his

testimony concerning what he personally saw.

We hold that there was sufficient evidence in the record

to establish that appellant was the thief.

We overrule appellant’s first point of error.

D.

Final Conviction of Aggravated Robbery

In his second point of error, appellant argues that there

is insufficient evidence in the record to support a finding that he had been

convicted of aggravated robbery as alleged in the enhancement paragraph.

At trial, during the punishment phase of the trial,

appellant pleaded true to certain convictions, including the offense of

aggravated robbery. An exhibit admitted

into evidence showed that, in 1996, appellant was placed on deferred

adjudication for the offense of aggravated robbery. Another exhibit established that he was found

guilty of the offense in 1998. This

exhibit identified that appellant appealed the conviction on April 2, 1998 and the

appellate court issued a mandate on April 20, 1999. The jury found the allegation in the

enhancement paragraph, among others, to be true and assessed punishment at 7

years’ confinement.

The general rule is that a plea of true to an enhancement

paragraph relieves the State of its burden to prove a prior conviction alleged

for enhancement and forfeits the defendant’s right to appeal the insufficiency

of the evidence to prove the prior conviction.

Ex parte Rich , 194 S.W.3d 508,

513 (Tex. Crim. App. 2006). There is,

however, a narrow exception to this general rule. If the record affirmatively reflects that the

enhancement allegation was not true, such as affirmatively reflecting that the

judgment for the enhancement was not final, then a sufficiency of the evidence

point can be raised. Id.

If the State’s proof of a prior conviction shows on its

face that the conviction was appealed, then the State must also put on evidence

showing that the appellate court’s mandate has issued. Ex parte

Chandler , 182 S.W.3d 350, 358 (Tex. Crim. App. 2005). The State is required to make a prima facie

showing of finality. Jones v. State , 711 S.W.2d 634, 636

(Tex. Crim. App. 1986).

In this case, the exhibit that reflected that appellant

had appealed his conviction for aggravated robbery also reflected that the appellate

court issued its mandate. Accordingly,

the record does not affirmatively reflect that the enhancement allegation was

not proper. See Ex parte Rich , 194 S.W.3d at 513.

Appellant argues that, although there is a notation on the

judgment for the aggravated robbery that the mandate had issued, the mandate

itself was not included in the record.

There is no requirement that the mandate itself be introduced to prove

finality. In Johnson , the Court of Criminal Appeals recognized that introducing

a mandate into evidence is not the only way to prove that a mandate was

issued. See Johnson v. State , 784 S.W.2d 413, 414 (Tex. Crim. App. 1990)

(holding State failed to present mandate or any other manner of proof showing

disposition of appeal). Additionally,

the only proof that appellant appealed his conviction was in a similar notation

in the same judgment. To the degree that

a notation in a judgment is sufficient to show that an appeal had been taken, a

similar notation in the same judgment is sufficient to show that a mandate has

been issued.

We hold that the record does not affirmatively reflect

that the allegation in the enhancement paragraph was not true and that, by

pleading true to the enhancement allegation, appellant forfeited his right to

appeal the sufficiency of the evidence to prove the prior conviction. We overrule appellant’s second point of

error.

Conclusion

We affirm the judgment of the trial court.

Laura

Carter Higley

Justice

Panel consists of Justices Jennings, Higley, and Brown.

Do not publish. Tex. R.

App. P. 47.2( b).

[1] See Tex. Penal Code Ann. § 31.03

( Vernon Supp. 2010).

[2] In one sentence in his brief, appellant also states, “A

material variance exists between an allegation in an indictment and the proof

at trial.” An appellant’s brief must “contain

a clear and concise argument for the contentions made, with appropriate

citations to authorities and to the record.” Tex. R.

App. P. 38.1(i). If an argument

is not adequately briefed, there is nothing for the appellate court to review. Russeau

v. State , 171 S.W.3d 871, 881 (Tex. Crim. App. 2005). To the degree that appellant intended this

sentence to create an additional point of error, it has been inadequately brief

and, accordingly, waived.

[3] Although Germany testified that two of the parts depicted

in the demonstrative exhibit were made of carbon, he also testified that

National Oil Varco had both carbon and stainless steel versions of those parts.