PD-1206-15 No.

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

•On Appeal from the Fifth Court of Appeals COURTOFOR^ inCauseNo.05-14-00806-CR §gp If f|f|

Appellant's Motion to Extend the rmiRTncl ^ Time for Filing a Petition for Discretionary Review ' 0F CRIM,NAL APPEALS SEP 17 2015 To the HonorableJudges of said Court: 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. Gn July 30, 2015, Appellant's conviction was affirmed by the Fifth Court ofAppeals inCause No. 05-14-00806-CR styled Ronnie Heath v. The State ofTexas.

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 ah Opinion on Rehearing affirming the conviction.

4. 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.

5. No previous extension of time has been granted.

6. 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, Jjy-ttep^siting same in the United States Mail, Postage Prepaid on ^.Dt , 7 . 20] Ronnie Heath, Appellant Affirmed as Modified and Opinion Filed July 30, 2015.

flftWM?^™^* ffiaurt n£ Appeals Xfe£y Pj^C i^bf-^ 1/ <Aj r^CrS- ft. fjf* aiBtrirt °f Sexa8 at aalla8 No. 05-14-00806-CR 5uWflun.<CnSl i „ ,/U&^ 0'. ttfi^^ilH THESTATCOFTCXAS,Appenee Agg#feffl*T" ^ On Appeal from the Criminal District Court No. 1 Dallas County, Texas Trial Court Cause No. F-1453600-H

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 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 arblack 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 fpoundsl." 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 KlinglesmitiY'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 respOrid's that Guerra identified Heath as the thief to Office Klinglesmith and Officer "Klinglesmith identified Heath at trial.

A. Standard ofReview 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, 318— (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. SeeJackson, 443 U.S. at 319; £rdofa,:323 S.W.3d at 902 n.l9.; 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, 41^2 (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)

-3- 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 ofthe 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." fon the samejjay) Office Klinglesmith testified, describing the man he arrested on the nighyof 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 11:00 p.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 ^'oJ At

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:;.n Saturday, y !, 2014 AT A.BOUY 8:50 FM. A TKEFT/AEUMINUIvi OFFENSE OCCURRED / ,AS COUNTY, TEXAS. THE COMPLAINANT EN THIS OFFENSE IS ACTION n} } w i l l be he -'KbbJilN ED BY BORIS GRIN STEIN. THE STOLEN' AND RECOVERED PROPERTY i'KI S OFFENSE IS ALUMINUM METAE($ 166.50). TEE PR OPF WAS R U V j-HA ,.T THE LOCATION RELEASED TO THE COMPLAINANT.

ON SATURDAY, MARCH 29, 2014 AT ABOUT 8:50 PM; WITNESS EUAN GUERRA WAS WORKING SECURITY AT THE COMPLAINANTS CLOSED BUSINESS. WITNESS GUERRA. OBSERVED SUSPECT RONNIE HEATH INSIDE THE FENCED STORAGE YARD OF THE COMPLAINANTS BUSINESS. THE SUSPECT WAS THROWING PIECES OF ALUMINUM OVER THE FENCE ONTO THE SIDEWALK OUTSIDE THE COMPLAINANT'S BUSINESS. WITNESS GUERRA CONTINUED TO WATCH THE SUSPECT WILE CALLING 9-1-1. THE SUSPECT THEN USED A LADDER TO CLIMB BACK OVER THE COMPLAINANT'S FENCE AND DROPPED DOWN TO THE SIDEWALK. WITNESS GUERRA OBSERVED THE SUSPECT PUTTING THE STOLEN METAL INTO A. SHOPPING CART OUT ON THE SIDEWALK. UNIFORMED DALLAS POLICE OFFICERS TROY KLINGLESMITH #6415 AND LASHARON WATSON #9311, ALONG WI'FH THE POLICE HELICOPTER, RESPONDED TO THE LOCATION. OFFICERS LOCATED HIE SUSPECT WALKING ON TEE SIDEWALK OUTSIDE OF THE COMPLAINANTS BUSINESS. THE SUSPECT WAS PUSHING A SHOPPING CART CONTAINING THE STOLEN METAL. OFFICERS TOOK THE SUSPECT INTO CUSTODY.' WITNESS GUERRA: IDENTIFIED AND TOOK. POSSESSION Or THE STOLEN ALUMENUM. WITNESS TiR" TO FEW STER.RETT. " Ail :> i, ,: WAS ASSIGNED rECTiV'- R S?OK T3I>.' 3Y TELEPHONE. V '•')' All "i.\ J.; 'WITNESS GRINSTEIN STORaGI jj VISED THAT TNI 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 292nd JDC. THE SUSPECT WAS SENTENCED TO 2 YEARS IN PRISON. ON 12/29/11, ON CAUSE # Fl 1-17208, THE SUSPECT WAS CONVICTED OF THEFT/ENHANCED/2 PRIORS OUT OF THE 363rd JDC. THE SUSPECT WAS SENTENCED TO 45 DAYS IN JAIL.

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