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Attebury v. State

Court of Appeals of Texas, Seventh District, Amarillo

May 13, 2019


          On Appeal from the County Court at Law No. 1 Lubbock County, Texas Trial Court No. 2017-490, 646, Honorable Mark Hocker, Presiding

          Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


          PER CURIAM.

         Appellant, Doyle Attebury aka Doyle Attebury, Jr. appeals his theft conviction by contending the evidence was insufficient to support his conviction. We affirm.


         David 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."

         On May 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 missing."

         Brackett 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 Brackett:

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.

         Appellant "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.

         Later 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.

         Appellant's 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 the theft.

         Lloyd 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."[1] The State, then, rested its case.

         Appellant 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 ...

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