Court of Appeals of Texas, Seventh District, Amarillo
Appeal from the County Court at Law No. 1 Lubbock County,
Texas Trial Court No. 2017-490, 646, Honorable Mark Hocker,
QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Doyle Attebury aka Doyle Attebury, Jr. appeals his theft
conviction by contending the evidence was insufficient to
support his conviction. We affirm.
Brackett, the manager of United Refrigeration, testified that
he sells heating, air-conditioning and refrigeration parts
and equipment. One item United Refrigeration usually sells is
refrigerant which is sold in 24 to 110-pound cylinders. The
product is delivered to United Refrigeration with its name on
it and the designation "B-3."
12, 2017, Brackett was working at the store comparing the
quantity of refrigerant in the store against "the
balance sheet." While doing this, he noticed the shrink
wrap on one pallet of refrigerant "busted, and one was
suspected that appellant may have been the person who had
stolen the item. The reason underlying his suspicion involved
appellant's presence in the store the previous day for a
longer period of time than usual. This led Brackett to
inspect appellant's pickup which happened to be outside
the store. In the back of the vehicle was the missing
refrigerant. He knew it was the missing product since it
contained the B-3 store identification number on the box. The
coolant he discovered there consisted of a "50-pound jug
of 22 . . . [and] sold . . . for around 955 to $975." He
returned to the store and questioned appellant. According to
I walked up to him and asked him, I said, 'Is that your
50-pound refrigerant in the back of your truck?' And he
said, 'Yes, it is.' I said, 'Where did you get
it?' And he said, 'Well, I'm not for sure,
because my part-time got it somewhere.' I informed the --
if I can go on, I informed the man that, well, that jug of
refrigerant was our store brand. It's come out of my
warehouse, and had my store number on it, and I was missing
one that had been stolen from my warehouse.
"didn't say anything." Bracket then told
appellant he was going to the police and left to make the
call. Appellant left while Brackett was on the phone. Once
the police arrived, Brackett gave them a statement regarding
the theft. Bracket also checked with the other employees and
store records and discovered that no customer had purchased
the particular sized bottle of refrigerant found in
appellant's truck from the store in about a year.
in August of the same year, the police recovered a cylinder
of refrigerant after receiving a phone call from
appellant's mother who had reported that the stolen
property was in her garage. The police took the cylinder to
Brackett in order for him to identify it as his. He was able
to recognize it even though it was no longer in the box.
First, it was the brand of refrigerant that United
Refrigeration sold, "National." According to
Brackett no one else sold the National brand in Lubbock.
Next, the number sequence on the refrigerant "was fairly
close sequence of the ones [he] had in stock." Because
some of the refrigerant had been used and therefore "not
a full jug," he would have to check with the corporate
office on what to do with it, but he would be unable to sell
it out of his store. The actual code located on the jug and
testified to by Brackett was WC 401998. This code is placed
on there by the bottlers when it's filled up, according
to the witness. Accordingly, this set of numbers was used by
Brackett to identify his property because they were close in
sequence to the jugs he had in inventory. Finally, Brackett
stated that appellant did not have permission to take the
refrigerant. On cross examination, Brackett admitted that
appellant had been a customer of the store for several years.
In regards to the serial numbers, he admitted that they are
not logged in anywhere and does not have the numbers as part
of an inventory back-up. Furthermore, if he fails to keep
track of his inventory, he is fined.
mother testified that she had contacted the police about
appellant. In August of 2017, she was moving from her home
and found that her son had left some property in her garage.
He had placed it there in late summer of 2017. She had asked
him to remove the property but that he never did. She called
the police because she believed the property, a tank of
refrigerant, had been stolen. The police determined that the
property had been stolen and took custody of it. She did not
recall telling the police that her son had been arrested for
Rampy, a City of Lubbock police officer, stated that he had
received a call regarding stolen property on August 14, 2017.
The caller was appellant's mother. According to the
officer, "she said that her son, [appellant], was in
jail at the time and believed that he was involved in a theft
case, and that he had left some property in her garage, and
she believed that it was stolen." He recovered the
stolen item in the garage which he described as a green
refrigerant tank. The officer conferred with the detective
handling the theft case involving the stolen refrigerant, and
confirmed it was a match with that which was stolen from
Brackett. He, then, contacted the victim and went to his
business where Brackett verified it was his tank.
Furthermore, the officer went to Brackett's warehouse
where he was shown similar tanks. The officer was shown
"serial numbers or [some] identifying marks that were
similar to [the] tank that was stolen." He recalled
"the last digits of the numbers of the tanks that he
[Brackett] had ended in 199C, and 200B [and] [t]he numbers on
the tank that [he] recovered, the last numbers on it were 199
-- yes, 199." The State, then, rested its case.
testified the he knew Brackett and that he had been in United
Refrigeration "[thousands of times." He went into
the store to buy supplies for his business and sometimes his
employees did. However, he had not been back to the store
after they had accused him of stealing the refrigerant.
According to appellant, he did not steal the refrigerant even
though it was found in his truck the day following the theft.
Appellant admitted to being in the store on May 11th (the day
before the theft was discovered) to wait on one of the
employees, Heath Allen, to go to lunch. However, according to
appellant, Heath could not go so he left and returned the
following day. He returned to the store because Heath was
"working on a bid" for some equipment to be used in
a job. When asked why he left when Brackett told him he was