James Herbert Fletcher a/k/a James Fletcher v. The State of Texas--Appeal from 366th District Court of Collin County

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State: Texas

Court: Texas Northern District Court

Docket No: 11-03-00097-CR

Case Date: 05/06/2004

Plaintiff: James Herbert Fletcher a/k/a James Fletcher

Defendant: The State of Texas--Appeal from 366th District Court of Collin County

Preview:James Herbert Fletcher a/k/a James Fletcher v. The State of Texas--Appeal from 366th District Court of Collin County
11th Court of Appeals Eastland, Texas Opinion James Herbert Fletcher a/k/a James Fletcher Appellant Vs. No. 11-03-00097-CR -- Appeal from Collin County State of Texas Appellee The jury convicted James Herbert Fletcher a/k/a James Fletcher of theft, and the trial court assessed his punishment at two years confinement in a state jail facility. We affirm. Ground of Error Appellant argues that the evidence was Aboth legally and factually insufficient@ to support his conviction of theft. There is only one ground of error. The Indictment Appellant was indicted for a Astate jail felony.@ The indictment charged that the value of the property stolen was less than $1,500, that appellant had been convicted of theft in 1997, and that appellant had been convicted of theft in 1991. See TEX. PENAL CODE ANN. ' 31.03(e)(4)(D) (Vernon Supp. 2004). The indictment also charged that the current offense was committed in Collin County on October 10, 2001, when appellant Adid then and there intentionally and knowingly appropriate...a drill...without the effective consent of Kimberly Grego.@ Testimony of Kimberly Grego The State=s first witness, Kimberly Grego, testified that she was employed by Payless Cashways on October 10, 2001. That company was involved in bankruptcy proceedings, and it was in the process of liquidating its assets. Grego was the office manager in Plano, and she also worked

on the sales floor. Grego identified appellant as the man who was walking out of the store that day when the alarm went off. A portion of her testimony reads as shown: Q: Tell me the reason you came into contact with [appellant]? A: I was working at the front of the store on the register, and our alarm system on the entrance door sounded, and when I turned to my left, he was walking, exiting the building through the entrance door, and the alarm went off, and he was carrying a power tool, a drill in his, it was in a case. He was carrying it through the door and went through
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the...entrance door. And I proceeded to turn to my right and went through the exit door and was following him through the parking lot, and asking him to return to the store. (Emphasis added) Grego testified that she got a Agood look@ at appellant=s face and that one of the other Payless managers heard her yell and came to her assistance. They got a description of appellant and his vehicle, including the license number, before he drove away. Grego said that appellant got in his car Avery quickly,@ that appellant accelerated Areally fast,@ and that appellant Aalmost hit@ the other manager as appellant was leaving. Grego went back into the store and called the police. Grego said that the item which appellant took from the store was a Makita cordless drill which had a value of about $250. When the police officers came to the store, Grego and the other manager told the officers what had happened and gave them a physical description of the man who had taken the item from the store. The police came back within the hour, and Grego got in the squad car and went with the police to see if the man who was driving a car which the police stopped was the same man that she had followed from the store to the parking lot. The police had stopped a vehicle with the same license number that she had given to the dispatcher, and the driver matched the description which she and the other Payless employee had given to the police. Grego identified that driver as the man she had followed from the store. During cross-examination, Grego agreed that she could not see what was Ain that case@; however, she said that it was a Asealed case@ and that she knew it was a AMakita.@ The Other Witnesses

The other Aeye witness@ was Jimmy Daughters. Daughters testified that he was employed by Payless Cashways on October 10, 2001; that the company had filed for bankruptcy; and that he was helping the company close its store in Plano. Grego was running the register next to him, and he heard her say to a person who was walking out the door: A[S]ir, you need to pay for that.@ Daughters followed them to the parking lot, and he wrote down the license number on the station wagon that appellant drove from the parking lot. Daughters said that appellant started the car and Arevved the engine.@ When the tires Asquealed,@ Daughters Ajumped back out of the way@ as appellant drove the station wagon out of the parking lot. Then, Daughters and Grego went back inside the building and called the police. The only other witnesses which the jury heard[1] were Officer Kevin Paul Kirkconnell and Officer Jonathan Wayne Giddings. Both officers were employed by the Police Department of the City of Plano. They testified about their investigation of the offense and about appellant=s apprehension, identification, and arrest. Neither of them saw appellant take the property from the store. Standards of Review Appellant cites Johnson v. State, 23 S.W.3d 1 (Tex.Cr.App.2000); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); and Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996). Those cases make it clear that an appellate court should give deference to the fact finder=s decision on disputed facts and that a jury=s verdict should be set aside Aonly if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.@ Cain v. State, supra at 407; see also Clewis v. State, supra at 135.

Appellant contends that the evidence is legally and factually insufficient to support his conviction. In order to determine if the evidence is legally sufficient, we must review all of 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 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000). In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak as to render the conviction clearly wrong and manifestly unjust or whether the evidence supporting guilt, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust. Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Goodman v. State, 66 S.W.3d 283 (Tex.Cr.App.2001); Johnson v. State,
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23 S.W.3d 1, 11 (Tex.Cr.App.2000); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996). This Court=s Ruling The sole ground of error is overruled because the testimony of Grego is Aboth legally and factually@ sufficient to support the jury=s verdict. She made a positive identification of appellant as the man who walked out of the store with a Asealed case@ which contained a Makita cordless power drill. The judgment of the trial court is affirmed. BOB DICKENSON SENIOR JUSTICE May 6, 2004 Do not publish. See TEX.R.APP.P. 47.2(b). Panel consists of: Arnot, C.J., and McCall, J., and Dickenson, S.J.[2]

[1]Appellant=s wife testified during the punishment phase of trial, but her testimony does not affect the ground of error which has been briefed. [2]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.

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