Juan Gallegos v. State ( 2017 )

NUMBER 13-16-00007-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JUAN GALLEGOS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 148th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Contreras, Benavides, and Longoria
Memorandum Opinion by Justice Benavides
By three issues, appellant Juan Gallegos challenges his conviction for theft. See
TEX. PENAL CODE ANN. §§ 12.425(b), 31.03(a), (b), (e)(4)(D) (West, Westlaw through 2017
1st C.S.). Gallegos alleges: (1) the trial court incorrectly denied his motion to suppress;
(2) the trial court incorrectly considered certain evidence during the punishment phase;
and (3) the evidence was insufficient to support his conviction. We affirm.
I. BACKGROUND
Gallegos was charged with theft of property in an amount less than $1,500.00, a
misdemeanor which was enhanced to a state jail felony because of two prior misdemeanor
theft convictions. See id. § 31.03(a), (b), (e)(4)(D). Gallegos additionally had two prior
felony convictions, which the State used to enhance his charge to a second-degree felony.
See id. § 12.425(b).
At trial, Frank Leaf, a loss prevention officer at Kohl’s department store, testified
that on March 26, 2015, he was alerted to an alarm going off near an emergency exit door
in the store. As Leaf reviewed the surveillance cameras, he saw a gold Nissan sedan with
its trunk ajar leaving the back area of the store near the time the emergency door’s alarm
was activated. Leaf also noticed that the license plate on the Nissan seemed to be
obscured. Leaf testified that the emergency door was near the electronics section, and
upon reviewing the surveillance video further, Leaf noticed Gallegos entered Kohl’s
through the front entrance. The video depicted Gallegos browsing the store, selecting
items, and placing them in a shopping basket. Leaf then stated that Gallegos entered the
electronics area, looked at the Samsung electronics area, appeared to make a phone call
on his cell phone, and selected a Samsung television and soundbar from the display. Leaf
said that Gallegos then headed towards the direction of the emergency exit door, and
shortly thereafter, the door’s alarm activated. Leaf noticed that Gallegos was never seen
on the video leaving the front entrance. Leaf identified Gallegos in open court based on
the video surveillance and testified that Gallegos did not have permission to remove items
from Kohl’s. Although Leaf admitted he did not see the occupants of the gold Nissan as it
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drove away, he formed an assumption that Gallegos left in the gold Nissan based on the
video and timeline of events.
Officer Andres Lopez from the Corpus Christi Police Department testified during a
motion to suppress hearing and later during the trial that on March 28, 2015, he heard a
call over his police radio regarding a suspicious gold sedan with obscured license plates
seen at a local Wal-Mart. Officer Lopez recalled a similar report the day prior at the nearby
Kohl’s store, and proceeded to Kohl’s when officers were unable to locate the gold sedan
at Wal-Mart. Officer Lopez later located the gold Nissan sedan with duct tape covering
the license plates at Kohl’s. He testified he approached the vehicle and made contact with
Gallegos, who was in the driver’s seat. Officer Lopez felt he needed to investigate why
the license plates were obscured because it could be related to ongoing criminal activity.
Officer Lopez asked Gallegos to move to the patrol vehicle because Officer Lopez was
concerned for his own safety, that Gallegos could leave, and that a crime was ongoing.
Officer Lopez agreed that Gallegos was detained and not free to leave, but was not
Mirandized when speaking to Officer Lopez. See Miranda v. Arizona, 384 U.S. 436 (1966).
In the video from the interior of Officer Lopez’s patrol unit, Gallegos stated that his friend
was in Kohl’s to steal. Gallegos also told Officer Lopez that he did not do anything and he
did not want to get arrested. Officer Lopez allowed Gallegos to leave due to the lack of
stolen merchandise that day.
Tyler Nunley, a loss prevention officer at Kohl’s, testified as to the events from
March 27 and March 28, 2015. Nunley stated that Leaf had informed him of the theft of
the Samsung products the day before and he had watched the video. Nunely said on
March 27, another man was observed walking around the electronics section, looking at
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the high priced items, and then looking towards the emergency door. Nunley followed the
man, who left without taking any items, and observed him entering a gold sedan with an
obscured license plate. Nunley agreed that the man he saw on March 27 was not
Gallegos, but he believed it was the same car he observed on the video from the day
before. Nunley also worked on March 28, and saw the same man from the day before in
the store. Nunley stated he immediately started looking for the gold Nissan sedan, and
saw police approaching the vehicle. The same man Nunley saw inside the store walked
out and was later arrested by police. Nunley identified Gallegos to police as the man from
the March 26 video.
Corpus Christi Police Detective Gregory Shipley was assigned the theft case from
March 26. He stated that patrol officers can only arrest when an offense has occurred in
their presence, and that was why Officer Lopez let Gallegos leave on March 28. However,
through Detective Shipley’s review of the video provided by Kohl’s from March 26, his
knowledge of Gallegos, and Nunley’s parking lot identification of Gallegos, Detective
Shipley was able to determine it was Gallegos who took the Samsung television and
soundbar on March 26.
Gallegos was convicted by the jury of state jail theft, and the trial court sentenced
Gallegos to eight years in the Texas Department of Criminal Justice–Institutional Division
based on finding the two prior felony convictions true. This appeal followed.
II. EVIDENCE WAS SUFFICIENT
By his third issue, which we will address first, Gallegos challenges the sufficiency
of the evidence supporting his conviction.
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A. Standard of Review
When evaluating a sufficiency challenge, the reviewing court views the evidence in
the light most favorable to the verdict to determine whether a rational jury could find the
defendant guilty beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 899 (Tex.
Crim. App. 2010) (plurality op.); see Jackson v. Virginia, 443 U.S. 307, 319 (1979). The
jury is the sole judge of the credibility of the witnesses and the weight to be given to their
testimony, and a reviewing court is not to substitute its judgment as to facts for that of the
jury as shown through its verdict. Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim.
App. 2012). When the reviewing court is faced with a record supporting contradicting
inferences, the court must presume that the jury resolved any such conflict in favor of the
verdict, even if it is not explicitly stated in the record. Id.
A reviewing court must measure the sufficiency of the evidence by the elements of
the offense as defined by a hypothetically correct jury charge. Villarreal v. State, 286
S.W.3d 321, 327 (Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex.
Crim. App. 1997)). Such a charge is one that accurately sets out the law, is authorized by
the indictment, does not unnecessarily increase the State's burden of proof or
unnecessarily restrict the State's theories of liability, and adequately describes the
particular offense for which the defendant was tried. Id. In order to have reversal of a
conviction on a claim of insufficiency of the evidence, Gallegos must show that no rational
jury could have found all the elements of the offense beyond a reasonable doubt. Brooks,
323 S.W.3d at 902.
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B. Applicable Law and Discussion
A person commits an offense of theft if he unlawfully appropriates property with the
intent to deprive the owner of property. TEX. PENAL CODE ANN. § 31.03. Appropriate means
“to acquire or otherwise exercise control over property other than real property.” Id. §
31.01 (West, Westlaw through 2017 1st C.S.). The intent to deprive an owner of his
property means an intent “to withhold the property from the owner permanently or for so
extended a period of time that a major portion of the value or enjoyment of the property is
lost to the owner.” Id. Appropriation is unlawful if it is without the owner’s effective consent.
Id.
On March 26, Gallegos was seen on the surveillance video in the electronics area
selecting a Samsung television and soundbar, and shortly thereafter, the emergency door
alarm near the electronics area sounded. When Leaf looked at the surveillance cameras
from that area, he could see a gold Nissan sedan with obscured license plates leaving the
back lot of Kohl’s with what appeared to be a large box in the opened trunk area.
The following day, Nunley noticed a different man walking around the electronics
area in a suspicious manner. Nunley followed the man through the surveillance cameras
based on the theft the prior day and observed this man enter a gold Nissan sedan with
obscured license plates. The vehicle appeared to be the same one viewed on the
surveillance videos the day before.
On March 28, a suspicious vehicle with obscured license plates was reported to
police seen at a nearby Wal-Mart. Officer Lopez remembered the report at Kohl’s and
decided to look in the area. Officer Lopez located the gold Nissan sedan, noticed the
license plates were covered by duct tape, and found Gallegos in the driver’s seat. When
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approached, Gallegos told Officer Lopez that his friend was inside the Kohl’s store to
commit a theft. Nunley approached Officer Lopez a short time later and identified Gallegos
as the man from the video on March 26 when the Samsung television and soundbar were
stolen.
Based on the evidence presented by the State, a rational juror could have logically
pieced together the events and connected Gallegos’s presence on the surveillance video
and the theft on March 26 being tied to the gold Nissan sedan that Gallegos was located
in, and inferred that Gallegos was involved in the theft. We find the jury was well within its
right to believe the evidence presented by the State showed the appropriate culpable
mental state by Gallegos to deprive Kohl’s of its property and constitute theft. We overrule
Gallegos’s third issue.
III. MOTION TO SUPPRESS WAS PROPERLY DENIED
By his first issue, Gallegos argues his statements given to police at the time of his
detention were inadmissible. These statements were challenged during a pre-trial motion
to suppress, where the trial court denied the suppression.
A. Standard of Review
We review a trial court’s suppression ruling under a bifurcated standard. Hubert v.
State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010). Appellate courts must view all of the
evidence in the light most favorable to the ruling. Vasquez v. State, 453 S.W.3d 555, 564
(Tex. App.—Houston [14th Dist.] 2014, pet. granted). The trial court is the “‘sole and
exclusive trier of fact and judge of the credibility of the witnesses and evidence presented
at a hearing on a motion to suppress, particularly when the motion is based on the
voluntariness of a confession.” Delao v. State, 235 S.W.3d 235, 238 (Tex. Crim. App.
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2007).
Regarding findings of fact, especially when those findings are based on an
evaluation of credibility and demeanor, we review the trial court’s rulings under an abuse
of discretion standard. See State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006);
see also Xu v. State, 191 S.W.3d 210, 215 (Tex. App.—San Antonio 2005, no pet.). We
afford almost total deference to a trial court’s determination of historical facts supported
by the record. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). However,
“the trial court’s resolution of mixed questions of law and fact, which does not turn on an
evaluation of credibility and demeanor, is reviewed de novo.” Xu, 191 S.W.3d at 215. The
court of appeals is obligated to “uphold the trial court’s ruling on appellant’s motion to
suppress if that ruling was supported by the record and was correct under any theory of
law applicable to the case.” Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App.
2003) (en banc).
B. Applicable Law
Under the Fourth Amendment, the Supreme Court has held that “a policeman who
lacks probable cause but whose ‘observations lead him reasonably to suspect’ that a
particular person has committed, is committing, or is about to commit a crime, may detain
that person briefly in order to ‘investigate the circumstances that provoke suspicion.’”
Berkemer v. McCarty, 468 U.S. 420, 439 (1984) (quoting United States v. Brignoni-Ponce,
422 U.S. 873, 881 (1975)). “Typically, this means that the officer may ask the detainee a
moderate number of questions to determine his identity and to try to obtain information
confirming or dispelling the officer’s suspicions.” Id. “But the detainee is not obliged to
respond. And, unless the detainee’s answers provide the officer with probable cause to
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arrest him, he must then be released.” Id. “The similarly noncoercive aspect of ordinary
traffic stops prompts us to hold that persons temporarily detained pursuant to such stops
are not ‘in custody’ for the purposes of Miranda.” Id.
“A police officer may stop and briefly detain a person reasonably suspected of
criminal activity in the absence of probable cause to arrest the person.” Balentine v. State,
71 S.W.3d 763, 771 (Tex. Crim. App. 2002) (citing Terry v. Ohio, 392 U.S. 1, 22 (1968)).
“The officer may use such force as is reasonably necessary to effect the goal of the stop:
investigation, maintenance of the status quo, or officer safety.” Id. “The reasonableness
of a temporary detention must be examined in terms of the totality of the circumstances”
and such detention will be justified when “the detaining officer has specific articulable facts,
which, taken together with rational inferences from those facts, lead him to conclude that
the person detained is, has been, or soon will be engaged in criminal activity.” Id. at 768.
Although there is no length of time rule, the “reasonableness of the detention instead
depends on whether the police diligently pursued a means of investigation that was likely
to dispel or confirm their suspicions quickly.” Id. at 770.
C. Discussion
Officer Lopez testified that he heard a call regarding a vehicle with obscured license
plates, which was similar to a call he received the day prior. When Officer Lopez located
the vehicle described in the Kohl’s parking lot, he was alone. Officer Lopez stated he
approached the vehicle and made contact with Gallegos, who was sitting in the driver’s
seat. Officer Lopez noticed that the Nissan sedan’s license plates were covered by duct
tape, making him suspicious of some type of ongoing criminal activity. Officer Lopez
stated Gallegos was acting in an extremely nervous manner when they were speaking. In
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their speaking, Gallegos told Officer Lopez that his friend “Hector” was inside Kohl’s to
commit a theft. Because of the suspicious circumstances, Officer Lopez also was
concerned that Gallegos would attempt to leave prior to the conclusion of the investigation.
Officer Lopez also stated that he believed based on his observations that criminal activity
was either ongoing or about to occur. Officer Lopez articulated it was for the totality of
those reasons that he asked Gallegos to step out of his vehicle and placed him in the back
of his patrol unit.
Officer Lopez also testified that Gallegos was temporality detained while he
conducted his investigation, but was not under arrest and was not placed in handcuffs.
Officer Lopez did state that he patted Gallegos down prior to placing him in the patrol unit
backseat, but did so for Officer Lopez’s safety. Gallegos remained in the back of Officer
Lopez’s patrol unit until the other officers arrived. Gallegos did speak to Officer Lopez
from the backseat of the patrol unit. Although Officer Lopez agreed that he did not read
Gallegos his Miranda warnings, Officer Lopez also stated that Gallegos was never under
arrest. See generally Miranda, 384 U.S. 436. Officer Lopez’s actions were justified in
investigating possible ongoing criminal activity. See Berkemer, 468 U.S. at 439. When
Officer Lopez concluded his investigation and determined that Gallegos had not committed
a crime in his presence, the temporary detention ended and Gallegos was released. See
id. Therefore, we find that Officer Lopez’s detention of Gallegos was temporary and never
rose to the level of an arrest, which would trigger the need for Miranda warnings. See id.
The trial court did not abuse its discretion in denying Gallegos’s motion to suppress. We
overrule Gallegos’s first issue.
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IV. TRIAL COURT DID NOT VIOLATE GALLEGOS’S RIGHT TO CONFRONTATION
By his second issue, Gallegos alleges the trial court violated his right to confront
witnesses by considering a report from the probation department that the trial court
requested in determining punishment.
A. Applicable Law and Discussion
Prior to issuing Gallegos’s sentence, the trial court informed both parties that it had
requested a document from the probation department to help it understand Gallegos’s
criminal history. The trial court also stated that the document produced was not helpful
and it was going to disregard the document in determining the sentence, but it wanted the
parties to be aware the document had been seen. Neither side objected to the introduction
of the report.
Generally, in order to preserve error, there must be a timely and specific objection
to the complained-of evidence. Davis v. State, 313 S.W.3d 317, 347 (Tex. Crim. App.
2010). Confrontation Clause claims are subject to this preservation requirement. Id.
Because Gallegos did not object at trial to the admission of this document, this issue has
not been preserved for our review. See id.; see also TEX. R. APP. P. 33.1(a). Gallegos’s
second issue is overruled.
V. CONCLUSION
We affirm the judgment of the trial court.
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed the
14th day of December, 2017.
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