No. 05-02-01505-CR 05-02-01506-CR
Opinion Filed October 29, 2003. DO NOT PUBLISH. Tex.R.App.P. 47
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F02-50229-UM and F02-50841-VM. AFFIRM
Before Justices MOSELEY, RICHTER and FRANCIS.
Opinion By Justice RICHTER.
Following a consolidated trial, a jury convicted Bobby Wayne Linscome of two state jail felony thefts. See Tex. Pen. Code Ann. § 31.03(e)(4)(D) (Vernon 2003). In each case, the jury assessed punishment, enhanced, at fifteen years confinement and a $2,500 fine. In three points of error, appellant complains the evidence is legally insufficient to support the convictions and the court erred in admitting certain evidence. We affirm.
Background
The trial in these cases was short and consisted primarily of the testimony of Rhonda Gold and Ron Davis, employees of the two stores from which appellant was accused of shoplifting. Gold testified she was working as a cashier at a local Diamond Shamrock when appellant entered the store and drew her attention to a bag of shoes he was carrying. According to Gold, appellant then began walking through the store, taking several items off the shelves and placing them in his clothing. When it appeared appellant was about to leave, Gold rushed to the front door, locked it, and dialed 911. When appellant saw a police officer approaching, he began taking items out of his pants and placing them on the counter. The officer later removed the remaining items. Among those items were eight medicine packages, a beer bottle, coffee, and bottles of hot sauce. Gold testified appellant did not have her permission to take those items and she believed he took them intending to deprive her of them. Davis, a manager at a local Racetrac, testified he was helping a customer when appellant entered, placed a bag down on the counter, and walked towards the back of the store. From a domed mirror in that section, Davis could see appellant "fumbling with his clothes." A few moments later, appellant approached Davis and paid for a soda. When appellant began to leave, Davis stopped him and told him to put the items he had hidden in his clothing back or he would call the police. Appellant responded that he had not taken anything and Davis warned him again. When appellant denied taking anything a second time, Davis locked the doors and dialed 911. At that point, appellant began returning to the shelves the items he had taken, including four cans of food, one bar of soap, and two bottles of beer. By the time the police arrived, appellant had returned all the items. Like Gold, Davis testified appellant did not have his permission to take any of the items and he believed appellant was taking them with the intent of depriving him of them. Appellant did not testify and did not call any witnesses. Sufficiency of the Evidence
In his first two points of error, appellant asserts the evidence is legally insufficient to support his convictions because the State failed to show he intended to deprive Gold and Davis of the items he took. Appellant contends his returning the items "defeated" an intent to deprive. We disagree. In reviewing a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999). The trier of fact is the exclusive judge of the witnesses' credibility and the weight to give their testimony and may draw reasonable inferences from the evidence before it. Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). A person commits theft if he unlawfully appropriates property without the owner's effective consent and with intent to deprive the owner of the property. Tex. Pen. Code Ann. § 31.03(a), (b)(1). Intent to deprive may be proven by showing actual deprivation. Rowland v. State, 744 S.W.2d 610, 612 (Tex.Crim.App. 1988). However, actual deprivation is not an element of intent to deprive and intent to deprive may be proven by other evidence. Id. Viewing the evidence in the light most favorable to the verdicts, the record in these cases reflects appellant took several items from each store, hid them in his clothing, and then attempted to leave without paying for them. The record also reflects appellant did not have either Gold's or Davis's permission to take the items, and both Gold and Davis believed appellant intended to deprive them of the items. From this evidence, a rational jury could have reasonably inferred and found beyond a reasonable doubt that appellant intended to deprive Gold and Davis of the property. See Hill v. State, 633 S.W.2d 520, 521 (Tex.Crim.App. [Panel Op.] 1981) (finding intent to deprive when appellant placed a gun under his shirt, returned it when he realized he had been caught, and fled). That appellant returned the property does not render the evidence legally insufficient, as actual deprivation is not an element of intent to deprive. See Rowland, 744 S.W.2d at 612. We overrule appellant's first and second points of error. Admission of Evidence
In his third point, appellant asserts the court erred in admitting, over objection, State's exhibits one and two. These exhibits were admitted during the testimony of the officer who arrested appellant at the Racetrac and consisted of two boxes containing the bag appellant placed on the counter at the Racetrac and the bag's contents. Appellant maintains these exhibits were not relevant to the cases at hand because there was no allegation the items in the bag were taken from either the Racetrac or the Diamond Shamrock. Appellant further asserts he was harmed. We disagree. It is well settled that any error in the admission of evidence is rendered harmless if other evidence proving the same fact the complained-of evidence sought to prove is admitted without objection. Anderson v. State, 717 S.W.2d 622, 628 (Tex.Crim.App. 1986). In this case, the record reflects that immediately before the State proffered the complained-of exhibits, the prosecutor had the officer identify, without objection, each item in the two boxes. Because testimony concerning the contents of the exhibits had already been elicited without objection and the items displayed to the jury, we conclude any error in the admission of State's exhibits one and two was harmless. See Mayes v. State, 816 S.W.2d 79, 86 (Tex.Crim.App. 1991). We overrule appellant's third point of error. We affirm the trial court's judgments.