Andrewnik Thomas v. State ( 2016 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00216-CR
ANDREWNIK THOMAS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 1 OF DENTON COUNTY
TRIAL COURT NO. CR-2014-08535-A
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MEMORANDUM OPINION1
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Appellant Andrewnik Thomas appeals her conviction for theft of property
valued between $50 and $500,2 raising two points. First, she contends that the
1
See Tex. R. App. P. 47.4.
2
See Tex. Penal Code Ann. § 31.03(a) (West Supp. 2015). At the time of
appellant’s offense, theft of property valued between $50 and $500 was a Class
B misdemeanor. See Act of May 29, 2011, 82nd Leg., R.S., ch. 1234, § 21, 2011
Tex. Sess. Law Serv. 3301, 3309 (West) (current version at Tex. Penal Code
Ann. § 31.03(e)(2)(A)). Currently, theft of property valued under $100 is a Class
trial court erred by denying her motion for a directed verdict because the State
did not present sufficient evidence establishing her unlawful appropriation of
property and the value of the property. Second, she argues that the trial court
erred by including an instruction in the jury charge on the law of parties because
there was no evidence to support a verdict convicting her as a party to theft. We
reject both arguments and affirm the conviction.
Background Facts
In September 2014, Walmart asset protection associate Josh Hooper saw
two women, now identified as appellant and Jacoya Davis, engage in what he
deemed to be suspicious behavior. Hooper testified, and State’s Exhibit 2 (a
surveillance recording) corroborates, that appellant and Davis had already placed
several commonly stolen cosmetic items in the bottom and top of a cart, with
those items atop the cart placed beside the only purse in the cart. After Hooper
watched appellant and Davis select more cosmetic items, he saw them walk
toward a women’s accessories department, where appellant grabbed a purse
from a shelf and put it in the cart. Hooper, who was approximately twenty to
thirty feet from appellant and Davis, saw appellant put the items from the bottom
of the cart in that newly taken purse. Davis similarly placed the items at the top
of the cart in the purse located there.
C misdemeanor, and theft of property valued between $100 and $750 is a Class
B misdemeanor. Tex. Penal Code Ann. § 31.03(e)(1), (2)(A).
2
Hooper watched appellant and Davis move toward the front of the store
and walk past the last points of sale with the unpaid-for merchandise in the two
purses that were draped on their shoulders. Appellant carried the unpaid-for
Walmart purse on her shoulder, and Davis carried the other purse on her
shoulder. Both women were apprehended and taken to the store’s loss
prevention office, where Hooper got the unpaid-for merchandise and purse that
appellant had been carrying and had a customer service manager produce a
training receipt showing the value of items taken. That receipt, later verified by
Dallas Police Department Officer James Keteltas as an accurate depiction of
items, showed the total value to be $104.34. The items taken by appellant
include the purse, a bathing suit, some health and beauty accessories, and
cosmetics.
The State charged appellant with theft. She pled not guilty, but a jury
convicted her.3 The trial court assessed her punishment at 100 days’
confinement but suspended the imposition of the sentence and placed her on
community supervision for eighteen months. She brought this appeal.
The Trial Court’s Denial of a Directed Verdict
In her first point, appellant contends that the trial court erred by denying
her motion for a directed verdict. She argues that the evidence is insufficient to
prove that she was the person who possessed and appropriated the unpaid-for
3
Appellant’s first trial ended in a mistrial after a jury became deadlocked on
the issue of her guilt.
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purse and the unpaid-for retail merchandise within it and to prove that the value
of the items appropriated was over $50 but less than $500.
The challenge to the denial of a motion for directed verdict is actually a
challenge to the sufficiency of the evidence to support a conviction. Carnley v.
State, 366 S.W.3d 830, 833 (Tex. App.—Fort Worth 2012, pet. ref’d). In our due-
process review of the sufficiency of evidence to support a conviction, we view all
of the evidence in the light most favorable to the verdict to determine whether
any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.
2781, 2789 (1979).4 This standard gives full play to the responsibility of the trier
of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts. Id.; Murray v. State, 457
S.W.3d 446, 448 (Tex. Crim. App.), cert. denied, 136 S. Ct. 198 (2015).
The trier of fact is the sole judge of the weight and credibility of the
evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs v.
State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). Thus, when performing an
evidentiary sufficiency review, we may not re-evaluate the weight and credibility
of the evidence and substitute our judgment for that of the factfinder. See
4
In her brief, appellant discusses standards related to the now-defunct
factual sufficiency review of elements that the State is required to prove beyond a
reasonable doubt; we must review the sufficiency of the evidence to prove those
elements only under the Jackson standard. See Brooks v. State, 323 S.W.3d
893, 895 (Tex. Crim. App. 2010); Lozano v. State, 359 S.W.3d 790, 809 (Tex.
App.—Fort Worth 2012, pet. ref’d).
4
Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we
determine whether the necessary inferences are reasonable based upon the
cumulative force of the evidence when viewed in the light most favorable to the
verdict. Murray, 457 S.W.3d at 448. The jury is generally free to accept or reject
any or all of the evidence of either party, and we must presume that the factfinder
resolved any conflicting inferences in favor of the verdict and defer to that
resolution. Id. at 448–49; Hernandez v. State, 161 S.W.3d 491, 500 & n.28 (Tex.
Crim. App. 2005).
A person commits theft by unlawfully appropriating property with intent to
deprive the owner of the property. Tex. Penal Code Ann. § 31.03(a).
Appropriation occurs when a person acquires or otherwise exercises control over
property, and the appropriation is unlawful if it is without the owner’s effective
consent. Tex. Penal Code Ann. § 31.01(4)(b) (West Supp. 2015), § 31.03(b)(1).
Sufficiency of evidence establishing unlawful appropriation
Appellant argues that the evidence is insufficient to establish her unlawful
appropriation of property because Hooper contradicted himself as to who had
Walmart’s purse containing stolen items when appellant and Davis passed the
last points of sale. Appellant argues that Hooper “testified that [appellant] had
the purse but later testified that . . . Davis had the purse.”
On direct examination, Hooper testified unambiguously that appellant
carried the unpaid-for purse containing the other stolen items. On redirect
examination, a prosecutor asked Hooper, “[A]t some point, [you] went into what
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we’re going to call Jacoya’s . . . purse, which is Walmart’s purse, and pulled the
items out, correct?” Hooper stated, “Yes.” Hooper then confirmed that the jury
saw a receipt of those items before asking for clarification as to whose purse was
at issue: “In Jacoya’s purse?”
The necessary inference that appellant appropriated the unpaid-for purse
and its unpaid-for contents, including cosmetics, apparel, and health and beauty
items, is reasonable based on the cumulative evidence when viewed in the light
most favorable to the verdict. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.
Appellant’s claim that Hooper presented conflicting testimony, to the extent it was
conflicting, is presumed to have been resolved by the jury in favor of the
conviction. See Murray, 457 S.W.3d at 448–49. We refrain from supplanting the
judgment of the factfinder by reevaluating the weight and credibility of the
evidence. See id.
The record, when read in its entirety, supports a reasonable inference that
Davis had the purse she brought into the store and that appellant unlawfully
appropriated the unpaid-for purse and its contents. Hooper testified that he saw
appellant take a purse from the shelf; that he saw her place apparel items,5
health and beauty products, and other cosmetic items from the bottom of the cart
5
The receipt’s listing of a “DUFFLE” bag and “FG PANT,” “NB ROLL
CUFF,” “GLOVES,” “PANTY,” and “NN SOCKS” could be reasonably understood
to be the purse and apparel items, respectively, that Hooper testified to.
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in that purse and recovered such; and that he saw appellant walk past the points
of sale with the Walmart purse draped on her shoulder.
Given the weight of Hooper’s cumulative testimony, a rational jury could
have rejected the allegedly conflicting testimony that was made only on redirect
in response to an apparent misstatement by a prosecutor. Two answers to
questions that contradict the record on the whole and misidentify who possessed
the unpaid-for Walmart purse and its contents could fairly be rejected and do not
overcome the rational presumption that the jury resolved the conflicting
inferences in favor of the verdict. We reject appellant’s argument that the
evidence is insufficient to establish that she unlawfully appropriated another’s
property.
Sufficiency of evidence establishing value
Appellant also contends that the evidence is insufficient to establish the
stolen property’s value. “Value” for the purposes of the theft statute is generally
the fair market value of the property at the time and place of the offense. Tex.
Penal Code Ann. § 31.08(a)(1) (West Supp. 2015). There is no exclusive
method for proving fair market value. Keeton v. State, 803 S.W.2d 304, 305
(Tex. Crim. App. 1991); Gonzalez v. State, No. 13-11-00599-CR, 2013 WL
6834798, at *5 (Tex. App.—Corpus Christi July 29, 2013, pet. ref’d) (mem. op.,
not designated for publication). Sale price at the store, given a reasonable time
for selling the property, is evidence of fair market value. See Keeton, 803
7
S.W.2d at 305. Value reflected on a price tag, too, is an acceptable method.
Gonzalez, 2013 WL 6834798, at *5.
Appellant contends that the present case is factually analogous to Scott v.
State. 741 S.W.2d 435 (Tex. Crim. App. 1987). The court in Scott held that
evidence of value was insufficient to support a conviction when the only
testimony concerning value was provided by the owner and was based on a car’s
trade-in value, a value formulated by differing standards than those for cash or
fair market value. Id. at 438–39. Unlike the record in Scott, our record consists
of Hooper’s testimony as to the $104.34 value of the unpaid-for retail
merchandise found in appellant’s possession and an original receipt indicating
the $104.34 totaled price of such items at the time and place of the theft.
Although appellant argues the “training receipt” is insufficient evidence of value,
Hooper testified that original receipts such as the one admitted into evidence are
customarily produced upon retrieving unpaid-for Walmart merchandise, and this
receipt in particular was subsequently verified as an accurate depiction of the
merchandise. Cf. Himelright v. State, No. 06-13-00246-CR, 2014 WL 4558919,
at *5 (Tex. App.—Texarkana Sept. 16, 2014, no pet.) (mem. op., not designated
for publication) (relying on a Walmart receipt as evidence of value).
Given the sufficiency of evidence to convict appellant as a principal in theft,
and in light of Hooper’s testimony and appellant’s possession of the unpaid-for
items, we conclude that viewing the evidence in the light most favorable to the
verdict, a rational jury could have found beyond a reasonable doubt that
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appellant unlawfully appropriated property valued, in total, at more than $50 but
less than $500. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; see also Tex.
Penal Code Ann. § 31.03(a). For these reasons, we overrule appellant’s first
point.
The Trial Court’s Law of Parties Jury Instruction
In her second point, appellant challenges the propriety of the trial court’s
jury instruction on the law of the parties. The instruction stated,
All persons are parties to an offense who are guilty of acting
together in the commission of an offense. A person is criminally
responsible as a party to an offense if the offense is committed by
his own conduct, by the conduct of another for which he is criminally
responsible, or by both.
A person is criminally responsible for an offense committed by
the conduct of another if, acting with intent to promote or assist the
commission of the offense, he solicits, encourages, directs, aids or
attempts to aid the other person to commit the offense. Mere
presence alone will not constitute a party to an offense.
At trial, appellant objected to this instruction on the basis that there was no
evidence to support its submission.
In our review of a jury charge, we first determine whether error occurred.
Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). If error occurred,
whether it was preserved determines the degree of harm required for reversal.
Id. For the reasons stated below, we hold that the trial court did not err by
including the instruction on the law of parties.
A person is criminally responsible as a party to an offense if the offense is
committed by his own conduct, by the conduct of another for which he is
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criminally responsible, or by both. Tex. Penal Code Ann. § 7.01(a) (West 2011).
A person is criminally responsible for an offense committed by the conduct of
another if while “acting with intent to promote or assist the commission of the
offense, he solicits, encourages, directs, aids, or attempts to aid the other person
to commit the offense.” Id. § 7.02(a)(2) (West 2011).
A trial court must charge the jury fully and affirmatively on the law
applicable to every issue raised by the evidence. Mullins v. State, 173 S.W.3d
167, 178 (Tex. App.—Fort Worth 2005, no pet.) (mem. op.). A law of parties
instruction is proper if sufficient evidence supports a jury verdict that the
defendant is criminally responsible under the law of parties. Id. In making this
determination, courts may consider events that occurred before, during, and after
the commission of the crime. Goff v. State, 931 S.W.2d 537, 545 (Tex. Crim.
App. 1996), cert. denied, 520 U.S. 1171 (1997).
Appellant contends that the law of parties instruction was erroneous
because there was insufficient evidence to show that she had acted with the
intent to solicit, encourage, direct, aid, or attempt to aid Davis in the commission
of theft. While appellant’s criminal responsibility may be best supported by
evidence under a principal actor theory, we conclude that there is sufficient
evidence to support a verdict that appellant is criminally responsible under an
alternate theory as a party to the offense and to therefore support the challenged
instruction.
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Hooper’s testimony establishes that appellant and Davis were together in
the Walmart store and that both placed similar unpaid-for items in the same cart
and eventually concealed them in the purses in that cart. Moreover, Hooper
testified that the two women were together at all points in the store, including
when they were apprehended past all points of sale with their purses similarly
concealing unpaid-for items.
The evidence concerning the events before, during, and after the theft is
sufficient to qualify as some evidence of appellant’s criminal responsibility as a
party to theft. See id. Therefore, we conclude that the trial court did not err by
including the law of parties instruction.
But we also hold that even if the trial court erred by including the law of
parties instruction, the error was harmless. Preserved error in a jury charge
requires reversal if it was “calculated to injure the rights of [the] defendant,” which
means no more than that there must be some harm to the accused from the
error. Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006); Reeves v. State, 420
S.W.3d 812, 816 (Tex. Crim. App. 2013).
Here, in considering the strong evidence of appellant’s guilt as a principal
to the underlying theft, the trial court’s inclusion of the law of parties instruction
was harmless. See Black v. State, 723 S.W.2d 674, 675 (Tex. Crim. App. 1986)
(“Where the evidence clearly supports a defendant’s guilt as a principal actor,
any error of the trial court in charging on the law of parties is harmless.”); see
also Cathey v. State, 992 S.W.2d 460, 466 (Tex. Crim. App. 1999) (stating the
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same), cert. denied, 528 U.S. 1082 (2000). Accordingly, even if the trial court did
err, the error was not a reversible one. For all of these reasons, we overrule
appellant’s second point.
Conclusion
Having overruled appellant’s two points of error, we affirm the trial court’s
judgment.
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; GABRIEL and SUDDERTH, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 14, 2016
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