Thompson v. State
| Decision Date | 15 April 2021 |
| Docket Number | NO. 03-20-00080-CR,03-20-00080-CR |
| Parties | Dusty Lynn Thompson, Appellant v. The State of Texas, Appellee |
| Court | Texas Court of Appeals |
FROM THE 119TH DISTRICT COURT OF TOM GREEN COUNTY
NO. B-16-1102-SB, THE HONORABLE CARMEN DUSEK, JUDGE PRESIDING
A jury convicted appellant Dusty Lynn Thompson of the offense of theft of cattle and assessed punishment at five years' imprisonment and a $5,000 fine. See Tex. Penal Code § 31.03(a), (e)(5)(A). The district court suspended imposition of the prison sentence and placed Thompson on community supervision for five years. In five issues on appeal, Thompson asserts that the evidence is insufficient to support his conviction, that the State committed prosecutorial misconduct, that the indictment is fatally defective, and that there was reversible error in the jury charge. We will affirm the judgment of conviction.
BACKGROUND
The State alleged that Thompson stole cows that belonged to Coty Strain. At trial, the jury heard evidence that on October 6, 2016, Thompson called his friend and neighbor, Mike McClellan, and told him that Thompson had found three black cows standing outside his garage. McClellan testified that he told Thompson that "he should call the police" because in Texas, Later that morning, McClellan received the following text message from Thompson: When McClellan texted Thompson back, inquiring about the status of the cows, Thompson called McClellan and "said he was going to pen them up and feed them out to butcher them." Later that day, when McClellan was returning home from work, he drove past Thompson's property and observed that the cows were "penned up, sitting beside [Thompson's] property." Several days later, Thompson told McClellan that "he had been watching videos of how to butcher cows on YouTube" and asked McClellan if he would help him. McClellan shrugged and said nothing, not wanting to become involved in what he characterized as Thompson's "criminal intent." Several days after that, Thompson asked McClellan if he "knew anybody who had a cattle trailer," and McClellan told him that he did not.
On October 23, 2016, Thompson met with an acquaintance, Glenn Tatsch, at a local Buffalo Wild Wings and asked him if he had a trailer and could "move some cows for him." Tatsch agreed and transported the cows from the pen at Thompson's house to an eighteen-acre tract of land ("the Pasture"), also owned by Thompson, that was located approximately one mile down the road from his house.
The Pasture was located behind a residence owned by Thompson that he had rented to Hannah Bryant, who lived on the property. Bryant testified that on October 23, she received a text message from Thompson telling her, Bryant went to the Pasture to look at the cows and "noticed that they didhave brands on them and that they did have ear tags on them." At that point, Bryant "knew something was wrong" because Bryant asked a game warden for advice and then contacted the Texas and Southwestern Cattle Raisers Association, telling them that "cows were put on her property" and that she was "more than sure that they do not belong to [her] landlord."
The case was assigned to Texas Ranger Kenneth Wadsworth, who testified that he called Bryant and asked her if the cows were branded. Bryant answered in the affirmative and sent Wadsworth a photograph of the brand, which was identified as belonging to Coty Strain. Wadsworth contacted Strain and described the cows to him. Strain confirmed that the cows belonged to him, informing Wadsworth that although he was unaware that any of his cows were missing, "he knew that somebody had run through his fence several weeks earlier," which would have allowed the cows to escape his property.
As Wadsworth continued his investigation, he received a call from Thompson, who admitted that the cows were on his property, that he had moved them from one location to another, and that he had been feeding them. Thompson also informed Wadsworth that one of the cows had given birth to a calf, and he asked Wadsworth if he would be able to "keep the calf, being that it was born on [his] property." Wadsworth told him that he would not. Wadsworth asked Thompson if he had attempted to find the owner of the cows or contact the sheriff's office to report that he had found cows on his property. Thompson told Wadsworth that he had not, and Wadsworth confirmed during his investigation that Thompson had not reported the cows to the sheriff's office.
Thompson testified in his defense. He claimed that the text message that he had sent to McClellan about the cows looking "tasty" was a joke. Thompson denied that McClellan or anyone had told him that he needed to contact law enforcement about the cows, and he further denied that he had discussed butchering the cows. Thompson admitted to fencing the cows on his property, but he claimed that he had done so on the advice of a former sheriff's deputy, Walter Bryant, and only for the purpose of keeping the cows safe until their owner could be found. Thompson also claimed that he had moved the cows to his other property because (1) he knew that one of the cows was pregnant, and his other property had more space for the calf to roam after birth, and (2) he believed that the cows would be easier for the owner to find on his other property. Thompson claimed that he did not intend to keep the cows or deprive the owner of them. However, Thompson acknowledged during cross-examination that other than Mike McClellan, he did not contact any of his neighbors regarding the cows.
Walter Bryant, the former sheriff's deputy, also testified for the defense. He acknowledged that he had advised Thompson to "pen [the cows] up, because that's what [they] had done at the sheriff's office, keep them off the roadway," and wait for the owner to claim them. Bryant, who worked for Thompson at the time of the alleged theft and during trial, testified that he had helped Thompson construct a pen to keep the cows secure and had bought feed for the cows at Thompson's request. Bryant further testified that in his experience, the sheriff's office was of limited assistance when stray cattle were found, so he had not advised Thompson to contact the sheriff's office. However, Bryant conceded on cross-examination that when he had been a patrol officer and found stray cattle, he would contact dispatch and report the cattle.
After hearing the evidence, the jury found Thompson guilty of theft of cattle as charged. This appeal followed.
DISCUSSION
Sufficiency
In his first and second issues, Thompson challenges the sufficiency of the evidence supporting his conviction. Specifically, he argues that the evidence is insufficient to prove that he intended to steal the cattle. In his first issue, Thompson claims that his intent is negated by evidence showing that his tenant, Hannah Bryant, notified authorities that the cattle were on Thompson's property. Thompson characterizes Bryant as his "agent" and claims that she was acting on his behalf. In his second issue, Thompson asserts that his intent is negated by evidence showing that he had relied on the advice of the former sheriff's deputy who advised him to keep the cattle on his property.
"Evidence is sufficient to support a criminal conviction if a rational jury could find each essential element of the offense beyond a reasonable doubt." Stahmann v. State, 602 S.W.3d 573, 577 (Tex. Crim. App. 2020) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). "We view the evidence in the light most favorable to the verdict and consider all of the admitted evidence, regardless of whether it was properly admitted." Id. "The jury is the sole judge of credibility and weight to be attached to the testimony of the witnesses." Id. "Juries can draw reasonable inferences from the evidence so long as each inference is supported by the evidence produced at trial." Id. A reviewing court is not permitted to "reevaluate the weight and credibility of the evidence in the record and thereby substitute [its] own judgment for that of the factfinder." Braughton v. State, 569 S.W.3d 592, 608 (Tex. Crim. App. 2018). Instead, areviewing court is to "adhere to the Jackson standard and determine 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). "When the record supports conflicting inferences, we presume that the jury resolved the conflicts in favor of the verdict and defer to that determination." Merritt v. State, 368 S.W.3d 516, 525-26 (Tex. Crim. App. 2012). "Legally sufficient evidence need not exclude every conceivable alternative to the defendant's guilt, and the law requires no particular type of evidence." Johnson v. State, 560 S.W.3d 224, 226 (Tex. Crim. App. 2018) (internal citation omitted). "Direct and circumstantial evidence are equally probative, and 'circumstantial evidence alone can be sufficient to establish guilt.'" Id. (quoting Hooper, 214 S.W.3d at 13).
"Theft is the unlawful appropriation of property without the effective consent of the owner [and] with the intent to deprive the owner of property." Id. at 227 (citing Tex. Penal Code § 31.03(a)). On appeal, Thompson challenges the element of intent to deprive. A person acts with intent "when it is his conscious objective or desire to engage in the conduct or cause the result." Tex. Penal Code § 6.03(a). "Deprive" means "to withhold property from the...
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