Case Information

*1

$\mathrm{P}\mathrm{D}-1206-15$

No. $$

Ronnie Heath vs. The State of Texas § In the Texas Court of § Criminal Appeals at Austin, Texas

On Appeal from the Fifth Court of Appeals in Cause No. 05-14-00806-CR

RECIIVED IN

COURT OF CREMINAL APPEALS SEP 18 2015

AbelAcosta, Clerk

To the Honorable Judges of said Court:

FILED IN COURT OF CRIMINAL APPEALS SEP 172015

Abel Acosta, Clerk

Comes now Appellant, and respectfully requests that the time for filing a Petition for Discretionary Review in the above-styled and numbered cause be extended. In support of this motion Appellant would show:

1. On July 30, 2015, Appellant's conviction was affirmed by the Fifth Court of Appeals in Cause No. 05-14-00806-CR styled Ronnie Heath v. The State of Texas.
2. On August 5, 2015, Appellant's counsel filed a Motion for Rehearing.
3. On August 26, 2015, Appellant's Motion for Rehearing was granted and the Court issues an Opinion on Rehearing affirming the conviction.

*2

1. The present deadline for filing a Petition for Discretionary Review is

September 25, 2015. Appellant respectfully requests an extension of time until November 24, 2015.

1. No previous extension of time has been granted.

2. Appellant would show the Court that a reasonable explanation exists for the requested extension. Appellant is currently incarcerated in the Texas Department of Criminal Justice and has limited legal knowledge. Appellant must go to the unit law library to research and draft the issues.

Wherefore, premises considered, Appellant respectfully requests that the time for filing a Petition for Discretionary Review be extended to November 24, 2015.

Respectfully submitted,

Ronnie Heath, Appellant # 14018945 Kays Tower 03-E P.O. Box 660334

Dallas, TX 75266-0334

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing motion has been served on the Dallas County District Attorney's Office, Appellate Division, 133 N. Riverfront Blvd., LB 19, Dallas, Texas, 75207, by depositing same in the United States Mail, Postage Prepaid on Sept. 7, 2015.

Ronnie Heath, Appellant

*3

Affirmed as Modified and Opinion Filed July 30, 2015.

MEMORANDUM OPINION

Before Justices Bridges, Lang, and Schenck

Opinion by Justice Lang Ronnie Heath appeals the trial court's judgment convicting him of theft, enhanced (1) because the value of the property stolen was less than $\$20,000$ and the property stolen was aluminum and (2) by two prior state jail felonies. See Tex. Penal Code Ann. §§ 31.03(a), (e)(4)(F)(i), 12.425(a) (West Supp. 2014). The jury found Heath guilty, the enhancements true, and assessed his punishment at five years of imprisonment. In his sole issue on appeal, Heath argues the evidence is insufficient to support his conviction. We conclude the evidence is sufficient. Also, we conclude the judgment lists an incorrect degree for the offense and modify the judgment accordingly. The trial court's judgment is affirmed as modified.

I. FACTUAL AND PROCEDURAL BACKGROUND

Juan Guerra, the night watchman for Action Metals, a facility that recycles metals including aluminum, climbed a ladder to look over a fenced area and saw a man throwing a

*4

loaded sack over the fence. Guerra told the man to leave and called 9-1-1. The man did not pay any attention to Guerra. Instead, the man returned for more material. The man threw two additional bags over the fence, climbed the fence, put the bags into a shopping cart, and left "turn[ing] on Lamar." Guerra described the perpetrator as a thin, African-American man who was approximately five feet seven or eight inches tall.

Officer Troy Klinglesmith responded to the 9-1-1 call and arrived within a minute. He saw a black male pushing a shopping cart down the street. Officer Klinglesmith stopped the man, questioned him, and identified the man as Heath. Also, he observed bags of what appeared to be aluminum in the shopping cart. Officer Klinglesmith told Heath to "put the stuff back," then followed Heath to Action Metals. At Action Metals, Guerra identified Heath as the man he saw taking the property and pushing the shopping cart. Then, Officer Klinglesmith applied a magnet to the metal, found it was not attracted to the metal, thereby confirming that the metal was aluminum. The next day, Boris Grinstein, the vice president and manager of Action Metals, weighed the aluminum, determining it was "over a hundred [pounds]."

Heath was indicted for theft and the offense was enhanced to a state jail felony because the property stolen was aluminum and its value was less than $\$20,000$ . See Tex. Penal Code Ann. § 31.03(a), (e)(4)(F)(i). The indictment also alleged two prior state jail felonies. See Tex. Penal Code Ann. § 12.425(a). The jury found Heath guilty, the enhancements true, and assessed his punishment at five years of imprisonment.

II. SUFFICIENCY OF THE EVIDENCE

In issue one, Heath argues the evidence is insufficient to support his conviction because the evidence failed to identify him as the perpetrator. Specifically, he claims the evidence is insufficient because: (1) Guerra was not able to identify Heath in court; (2) although Officer Klinglesmith testified Guerra identified Heath as the perpetrator at the scene, Officer

*5

Klinglesmith was only able to communicate with Guerra "somewhat"; and (3) Guerra and Officer Klinglesmith gave differing descriptions of Heath's attire at trial. The State responds that Guerra identified Heath as the thief to Office Klinglesmith and Officer Klinglesmith identified Heath at trial.

A. Standard of Review

When reviewing the sufficiency of the evidence, an appellate court considers all of the evidence in the light most favorable to the verdict to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 31819 (1979); Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.). Appellate courts are required to determine whether any rational juror could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 902 n.19. An appellate court is required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given to their testimony. See Jackson, 443 U.S. at 319, 326; Merritt, 368 S.W.3d at 525; Brooks, 323 S.W.3d at 899. All evidence, whether properly or improperly admitted, will be considered when reviewing the sufficiency of the evidence. See McDaniel v. Brown, 558 U.S. 120 (2010) (per curiam); Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); Jackson, 443 U.S. at 319.

B. Applicable Law

A person commits theft if he unlawfully appropriates property with the intent to deprive the owner of property. Tex. Penal Code Ann. § 31.03(a). Appropriation of property is unlawful if it is without the owner's effective consent. TEX. PENAL CODE ANN. § 31.03(b)(1). Theft is a state jail felony if the value of the property stolen is less than $\$20,000$ and the property stolen is aluminum. Tex. Penal Code Ann. § 31.03(e)(4)(F)(i)

*6

The State must prove beyond a reasonable doubt that the defendant is the person who committed the offense charged. See Miller v. State, 667 S.W.2d 773, 775 (Tex. Crim. App. 1984); Wiggins v. State, 255 S.W.3d 766, 771 (Tex. App.—Texarkana 2008, no pet.). Identity may be proved by direct evidence or circumstantial evidence, including DNA evidence, or reasonable inferences from such evidence. See Gardner v. State, 306 S.W.3d 274, 285 (Tex. Crim. App. 2009); Orellana v. State, 381 S.W.3d 645, 653 (Tex. App.—San Antonio 2012, pet. ref'd); Roberson v. State, 16 S.W.3d 156, 167 (Tex. App.—Austin 2006, pet. ref'd).

C. Application of the Law to the Facts

The State concedes that Guerra could not identify Heath in court as the perpetrator. The record shows that Guerra, the eyewitness to the offense, testified that the man he saw was in the courtroom. When asked to describe the man's clothing, Guerra described the man as wearing a green jacket, a white shirt, and a grayish tie. However, Guerra then stated the man in the courtroom had a resemblance to the man he saw on the night of the offense, but noted that the man he saw on the night of the offense was thinner. Also, Guerra stated the offense occurred "past midnight." On the same day Office Klinglesmith testified, describing the man he arrested on the night of the offense as the man in the courtroom wearing a brown coat, white shirt, and tie. The record reflects that man was Heath. Officer Klinglesmith stated that he was dispatched to the area of the offense at approximately $11:00p.m$ .

The record also shows that Guerra testified the man he saw stealing the metal was a thin, African-American man of medium height, approximately five feet seven or eight inches tall. Guerra stated that he saw the man throw the bags of metal over the fence, climb over the fence, put the bags of metal into a shopping cart, and "turn[] on Lamar." Office Klinglesmith stated that he arrived at the location less than a minute after he was dispatched and observed Heath pushing a shopping cart in the street. The shopping cart contained aluminum in a couple of

*7

State's Evidence For Confliction (3) After midnight, (1205 an) 3/29114 Security sees suspect ( $5700.5/8$ slim. black) calls 911 (10) Arriving at week next morning Guinea Gren. stein (Tam 3/29114) finds using aluminum weighing between 100 and 110 lbs (same type) same calbe from same customer) (3) Office Klinglesmith receives call from dis. patch at 11 pm 3/29114 services in less than 1 minute. 1101 pm Security Guerra testifies there was no calme in progress at 850 pm at Action Meals on 3/29114 xxxxxxxxxxxxxxxxxxxx Office Klinglesmith stops Heath just south of Action Meals and escorts him there. (Just South - $21/2$ blocks away 1 min later) state's Evidence For Grand Jury Indictment (1) Security Guerra reports calme in progress at 850 pm 3/29114 Supposedly identifies Heath as suspect. Heath $1/2$ listed as $1/4,2101$ lbs at back in at 1050 pm 3/29114 (3) Security Guerra supposedly identifies (3) by aluminum that he weighed at 45 lbs (1) plastic bag and 10 cloth bags (3) At 9 pm 3/29114 Office Klinglesmith stops Heath on sidewalk behind fence before reaching street resisted by King and Office Leshnean Lyttson 9311 Office Klinglesmith testifies Heath was carry aluminum in various forms

Unaddressed facts

1205 an 3/29114 1 min later is 850 pm ? 3/29114 Since Guerra testifies there was no calme in progress at 850 pm why was Heath arrested For a calme in progress and taken to the scene where took possession of 45 lbs of alum and everything else in the shopping cart by the Dunner never receives any of the items. No items received on norning after Heath oversized. During the 2 hess between the 850 pm secret and 1050 pm Klinglesmith andulation were taving to find a why for Heath

*8 ON SATURDAY, MARCH 29, 2014 AT ABOUT 8:50 PM, A THEITALUMINUM OFFENSE OCCURRID AT 3514 E. LAMAR ST., DALLAS, DALIAS COUNTY, TEXAS. THE COMPLAINANT IN THIS OFFENSE IS ACTION METALS AND WILL BE REPRESENTED BY BORIS GRINSTEIN. THE STOLEN AND RECOVERED PROPERTY IN THE OFFENSE IS ALUMINUM METAL ( $\$166.50$ ). THE PROPERTY WAS RECOVERED AT THE LOCATION AND RELEASED TO THE COMPLAINANT.

ON SATURDAY, MARCH 29, 2014 AT ABOUT 8:50 PM, WITHESS JUAN GUERRA WAS WORKING SECURITY AT THE COMPLAINANTS CLOSED BUSINESS. WITHESS GUERRA OBSERVED SUSPECT RONNIE HEATH INSIDE THE FENCED STORAGE YARD OF THE COMPLAINANT'S BUSINESS. THE SUSPECT WAS THROWING PIECES OF ALUMINUM OVER THE FENCE ONTO THE SIDEWALK OUTSIDE THE COMPLAINANT'S BUSINESS. WITHESS GUERRA CONTINUED TO WATCH THE SUSPECT WHILE CALLING 9-1-1. THE SUSPECT THEN USED A LADDER TO CLIMB BACK OVER THE COMPLAINANTS FENCE AND DROPPED DOWN TO THE SIDEWALK. WITHESS GUERRA OBSERVED THE SUSPECT PUTTING THE STOLEN METAL INTO A SHOPPING CART OUT ON THE SIDEWALK. UNFURMED DALIAS FULICE OFFICERS TROY KLINGLESMITH #6415 AND LASHARON WATSON #8311, ALONG WITH THE FOLICE HELICOPTER, RESPONDED TO THE LOCATION. OFFICERS LOCATED THE SUSPECT WALKING ON THE SIDEWALK OUTSIDE OF THE COMPLAINANTS BUSINESS. THE SUSPECT WAS PUSHING A SHOPPING CART CONTAINING THE STOLEN METAL. OFFICERS TOOK THE SUSPECT INTO CULTYODY. WITNESS GUERRA IDENTIFIED AND TOOK POSSESSION OF THE STOLEN ALUMINUM. WITNESS GUERRA WITNESS THE METAL AT ALUMINATES Y AS PONDER, VALUED AT $\$166.50$ . THE SUSPECT WAS TRANSPORTED TO LEM STERKEIT.

ON MONDAY, MARCH 31, 2014 DETECTIVE ROMAID REAMER WAS ASSIGNED THE CASE FOR FOLLOW UF. DETECTIVE REAMER, SPOKE TO WITNESS BORIS GRINSTEIN BY TELEPHONE. WITNESS GRINSTEIN WILL BE REPRESENTING THE COMPLAINANT. WITNESS GRINSTEIN ADVISED THAT THERE IS NO SURVEILLANCE YOIDD OF THAT FOLTION OF THE STORAGE YARD. WITNESS GRINSTEIN ALSO ADVISED THAT THE COMPLAINANT DOES WISH TO PROSECUTE THE SUSPECT.

A CRIMINAL HISTORY CHECK OF THE SUSPECT REVEALED TWO PRIOR FELONY CONVICTIONS. ON 9/7/05, ON CAUSE # F05-45500, THE SUSPECT WAS CONVICTED OF FORGERY OUT OF THE ${292}^{80}$ JDC. THE SUSPECT WAS SENTENCED TO 2 YEARS IN PRISON. ON 12/29/11, ON CAUSE # F11-17208, THE SUSPECT WAS CONVICTED OF THEFT/ENHANCED/2 PRIORS OUT OF THE ${363}^{80}$ JDC. THE SUSPECT WAS SENTENCED TO 45 DAYS IN JAIL.

During Tual Guereatestries crime committed after midnifft of $3/29/4$ (Call in Reported at 1205 am 3/29/14)

During Tual off. Uniglesmith testified he stopped me at 1101 pm 3/29/14 just south of scene (actually stopped me $2/12$ blocks away at Cooper and Gould) again crime was committed 1205 am 3/29/14 23 has earlier.

14 per 1coba, I customer. Owner Grinstein recovers 1 by slum weighing 100-160 lbs at 7 am Heath-creeping 45 lbs slum in 3 bys in various foon at 850pm

I's this the same aluminum? No.

*9

*10