Carrie Mae Abiola v. State ( 2015 )

Opinion filed July 23, 2015
In The
Eleventh Court of Appeals
__________
No. 11-13-00216-CR
__________
CARRIE MAE ABIOLA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 372nd District Court
Tarrant County, Texas
Trial Court Cause No. 1312082D
MEMORANDUM OPINION
The jury convicted Carrie Mae Abiola of theft of property of the value of less
than $1,500 with two prior theft convictions. See TEX. PENAL CODE ANN. § 31.03(a),
(e)(4)(D) (West Supp. 2014). The jury assessed Appellant’s punishment at
confinement in the State Jail Division of the Texas Department of Criminal Justice
for a term of two years, and the trial court sentenced her accordingly. Appellant
argues that the trial court erred when it denied her motion for a directed verdict of
acquittal because the indictment did not contain the name of the correct “owner” of
the property. We affirm.
The standard of review applicable to a motion for a directed verdict is the
same standard used for a sufficiency review. Pollock v. State, 405 S.W.3d 396, 401
(Tex. App.—Fort Worth 2013, no pet.). We review the sufficiency of the evidence
under the standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979).
Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Jones v. State, 343
S.W.3d 550, 552 (Tex. App.—Fort Worth 2011, no pet.). Under the Jackson
standard, we examine all the evidence in the light most favorable to the verdict and
determine whether, based on that evidence and any reasonable inferences from it,
any rational trier of fact could have found the essential elements of the offense
beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d
633, 638 (Tex. Crim. App. 2010).
The grand jury indicted Appellant for unlawfully acquiring or otherwise
exercising control over property of the value of less than $1,500 with the intent to
deprive the owner, Meghan Strickland, of the property. The property included four
packages of meat and five cases of beer. A person commits theft if that person
“unlawfully appropriates property with intent to deprive the owner of property.”
PENAL § 31.03(a). Such deprivation is unlawful if “it is without the owner’s
effective consent.” Id. § 31.03(b)(1). An “owner” is defined as one who “has title
to the property, possession of the property, whether lawful or not, or a greater right
to possession of the property than the actor.” Id. § 1.07(a)(35)(A). “Possession” is
defined as “actual care, custody, control, or management.” Id. § 1.07(a)(39).
The evidence at trial showed that on January 20, 2013, around 4:00 p.m.,
Appellant and a male acquaintance entered a Tom Thumb store in Arlington. Two
undercover loss-prevention officers, George Trevino and Randy Williams, watched
them enter the store. Trevino and Williams were employed through a third-party
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contractor to prevent theft at Tom Thumb locations. The officers continued to watch
Appellant and her acquaintance as they put five cases of beer and four packages of
various meats into their shopping cart. When the two stopped in the middle of an
aisle to talk, Trevino went outside so that he would be ready to apprehend them if
they tried to steal the meat and beer. Williams continued to watch Appellant and her
friend. Appellant pushed her grocery cart toward the exit door and briefly left it next
to the exit. Appellant quickly surveyed the area to see whether she was being
watched. Apparently comfortable that no one was watching her, she pushed the
shopping cart out of the store without making any attempt to pay for the items.
Once Appellant was outside the store, Trevino confronted her. Trevino
identified himself as a loss-prevention officer and asked her to come back inside the
store. After Trevino handcuffed Appellant, Trevino and Williams escorted her to a
break room inside the store. Appellant identified herself and admitted that she had
committed the theft in order to pay a late car payment.
Officer Vincent Orso of the Arlington Police Department arrived at the Tom
Thumb store shortly thereafter. After he talked with Trevino and Williams,
Officer Orso placed Appellant under arrest and took her into custody.
In the indictment, the State charged Appellant with unlawfully acquiring
property of the value of less than $1,500 from Meghan Strickland, the “owner.”
Strickland was the organized retail crime investigator for Tom Thumb in the
Dallas/Fort Worth area. At trial, Strickland testified that her undercover agents had
filed reports with her regarding the theft. Strickland also testified that, in her
capacity, she was actually the owner of the items that Appellant stole and that she
had a greater right to possession of those items than Appellant. On cross-
examination, Strickland admitted that she was not present when the theft occurred
and that the items that Appellant stole were in the care, custody, and control of the
store. Appellant’s counsel moved for a directed verdict of acquittal based on the
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lack of evidence that Strickland was the “owner” of the items Appellant stole. The
trial court denied the motion for directed verdict.
It is well settled under Texas law that ownership may be alleged in either the
actual owner or a special owner, which is someone who has actual custody or control
of property belonging to another person. Byrd v. State, 336 S.W.3d 242, 251–52
(Tex. Crim. App. 2011). It is “perfectly permissible” to name a corporation “as the
owner of the property and then call any agent or employee who holds a relevant
position in the company to testify that the corporation did not give effective consent
for a person to steal or shoplift its property.” Id. at 252. Appellant accurately relies
on Byrd and Dingler v. State for the proposition that, in order to avoid acquittal, the
State must name as the “owner” one that has an ownership interest in the property
stolen. Byrd, 336 S.W.3d at 251, 258; Dingler v. State, 705 S.W.2d 144, 146 (Tex.
Crim. App. 1984). However, that same reliance also elucidates the critical
differences between those cases and the present case.
For instance, in Byrd, the alleged owner of the items, which were stolen from
a Wal-Mart, was not an employee of the store, did not testify at trial, was not
referenced by either party at trial, and seems to have had no connection whatsoever
to any Wal-Mart store. 336 S.W.3d at 254. As the court noted, the indictment may
as well have alleged that “Carnac the Magnificent” owned the property in question.
Id. The Dingler case presents a closer question but is still clearly distinguishable
from the present case. In Dingler, a vehicle owned by a retail furniture corporation
was burglarized, and the State alleged that the owner was a local store manager with
no tenable connection to the vehicle. 705 S.W.2d at 146 (noting that there was “no
evidence in the record of appeal that would establish the employment relationship
of White [the alleged owner] to the warehouse location, which is where the burglary
occurred”). A brief selection from Dingler further differentiates it from the present
case:
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Other than testifying that he was an employee and a store manager for
Louis Shanks, White did not testify what other employment functions
he performed for the company; in particular, he was not questioned nor
did he testify as to just what his relationship was to the burglarized
vehicle, nor what his job with Louis Shanks entailed, nor did he
expressly state that he had the care, custody, control, or management of
the burglarized vehicle at the time in question. He also did not testify
that he was the “special owner” of the burglarized vehicle.
Id. at 145. Appellant is correct to rely on Dingler for the assertion that “it is not
enough to allege ownership in some high-ranking management person.” Id. at 146.
However, the facts of the present case are distinguishable.
Here, Strickland’s role and actions remedied all the deficiencies in Byrd and
Dingler. Strickland’s testimony made clear that she was responsible for all “external
theft,” that Trevino and Williams were her agents, that it was her responsibility to
supervise investigations and report theft offenses to the police, and that she handled
this case. Other courts have held that a loss-prevention officer like Trevino or
Williams qualified as an “owner” in similar theft cases, and it would be strange and
unnecessarily burdensome if the manager of these officers could not also qualify as
an “owner.” See, e.g., Murillo v. State, No. 05-10-00869-CR, 2011 WL 856911, at
*3 (Tex. App.—Dallas Mar. 14, 2011, pet. ref’d) (not designated for publication)
(holding evidence was sufficient to show that loss-prevention manager was the
“owner” of the property). As a store employee entrusted to help prevent this kind of
theft, Strickland had a greater right to possession of the stolen items than Appellant
and, thus, qualified as an “owner.” We hold that there was sufficient evidence for a
rational trier of fact to have found beyond a reasonable doubt that Strickland was the
“owner” of the items Appellant stole from the store. Appellant’s sole issue on appeal
is overruled.
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We affirm the judgment of the trial court.
JIM R. WRIGHT
CHIEF JUSTICE
July 23, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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