Kim Kaylene Williams v. State ( 2010 )

Opinion issued June 3, 2010

In The

Court of Appeals

For The

First District of Texas

NO. 01–09–00261–CR

KIM KAYLENE WILLIAMS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 268th District Court

Fort Bend County, Texas

Trial Court Cause No. 48,249

MEMORANDUM OPINION

          Appellant, Kim Kaylene Williams, was charged by indictment with the felony offense of theft of property valued at “less than $1,500,” enhanced by two prior convictions for theft. See Tex. Penal Code Ann. § 31.03(a), (e)(4) (Vernon Supp. 2009).  Appellant pleaded not guilty to the primary offense, but pleaded “true” to the enhancements.  A jury found appellant guilty, found the enhancements true, and assessed punishment at 18 months’ confinement and a $7,500 fine.

          In two points of error, appellant challenges the legal and factual sufficiency of the evidence.

          We affirm.

Background

          On September 4, 2007, Tenesha Seastrunk, a loss prevention officer at the Neiman Marcus department store in Katy Mills Mall in Fort Bend County, was monitoring the security cameras in the accessories department when she saw a woman, later identified as appellant, looking at sunglasses.  Appellant was with a friend, later identified as Gina Kennedy, and the two women were carrying large shopping bags.  Seastrunk testified that she saw appellant take several pairs of sunglasses, grab a handbag, and begin walking out of the accessories department, while looking around.  Seastrunk asked her supervisor, Edward Almerez, to watch the cameras with her. Seastrunk and Almerez watched appellant for approximately seven minutes.  Appellant walked through the men’s department and to the home decor department.  There, appellant removed the dust cover from the handbag, wrapped the sunglasses in the cover, and placed the wrapped items in a cabinet.  Appellant also took a pair of boots and placed them in a cabinet.  Seastrunk and Almerez then watched on various security cameras as appellant and Kennedy left the store in a red truck that had been parked up front in a handicapped parking space.

          Seastrunk and Almerez went to the home decor department and looked at the items that appellant had placed in the cabinet.  They each testified that there were three pairs of Dolce & Gabbana sunglasses; one pair of Prada sunglasses; one pair of Juicy Couture sunglasses; and one pair of Cavelli boots.  Almerez testified that he instructed the employees to leave the items in the cabinet for further monitoring of the situation.

          The next day, Seastrunk or Almerez saw appellant and Kennedy return to the store, in the same red truck as the day before, and park in the handicapped space. Appellant and Kennedy were again carrying large shopping bags.  Seastrunk and Almerez watched on security cameras as appellant went to the home décor department, retrieved the items she had placed in the cabinet the day before, and placed the items in her shopping bag.  Appellant then briefly walked around the store and left without paying for the items.

          Seastrunk and Almerez chased after appellant and met up with her just as she was moving through the front door.  Seastrunk testified that appellant swung her bag at Almerez, screaming, “[N]o, no, get off of me,” and that appellant slammed Almerez’s hand against the door.  Almerez testified that he grabbed appellant’s bag and held onto the door.  Appellant refused to release the bag and they struggled. Finally, Seastrunk and Almerez were able to retrieve the bag of merchandise from appellant.  During the scuffle, appellant dropped her cellular telephone.  Appellant and Kennedy ran to the red truck and drove away. Almerez got the license number and called the Katy Police Department (KPD).

          KPD Detective J. Benton interviewed appellant and showed her the security camera tapes.  Detective Benton testified that appellant identified herself and her truck on the tapes. In addition, appellant admitted that the cellular telephone recovered from the scene belonged to her. Appellant said that she had dropped the telephone “when they grabbed me.”  Detective Benton also testified that Almerez identified appellant from a photographic line-up.

          The security camera tapes were admitted at trial and played to the jury. Almerez testified that the items he recovered from appellant outside the store were the same items he and Seastrunk had identified in the cabinet the day before.  Those items are valued as follows: three pairs of Dolce & Gabbana sunglasses, valued at $79.00 each; one pair of Prada sunglasses, valued at $79.00; one pair of Juicy Couture sunglasses, valued at $69.00; and one pair of Cavelli boots, valued at $735.00.  A photograph of the items was admitted at trial.

Legal and Factual Sufficiency

          In her first and second points of error, appellant contends that the evidence is legally and factually insufficient to support her conviction.

A.      Standards of Review and Applicable Legal Principles

          We review the legal sufficiency of the evidence by considering 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 offense beyond a reasonable doubt. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007); Parker v. State, 192 S.W.3d 801, 804 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).  We “may not re-evaluate the weight and credibility of the record evidence and thereby substitute our judgment for that of the fact-finder.” Williams, 235 S.W.3d at 750.  We give deference to the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Id. Our duty is to ensure that the evidence presented actually supports a conclusion that the defendant committed the offense. Id.

          We begin our factual sufficiency review with the assumption that the evidence is legally sufficient.  Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009). Evidence that is legally sufficient, however, can be factually insufficient if (1) the evidence supporting the conviction is too weak to support the fact finder’s verdict, or (2) considering conflicting evidence, the fact finder’s verdict is “against the great weight and preponderance of the evidence.” Id. We consider all of the evidence in a neutral light, as opposed to in a light most favorable to the verdict. Id. We recognize that the factfinder is in the best position to evaluate the credibility of witnesses, and we afford due deference to the factfinder’s determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). We may only find the evidence factually insufficient when necessary to “prevent manifest injustice.” Laster, 275 S.W.3d at 518. In such case, we must explain why the evidence is too weak to support the verdict or why the conflicting evidence greatly weighs against the verdict. Id.

          A person commits theft if he unlawfully appropriates property with intent to deprive the owner of the property.  Tex. Penal Code Ann. § 31.03(a).  “Appropriate” means (A) to bring about a transfer or purported transfer of title to or other nonpossessory interest in property, whether to the actor or another or (B) to acquire or otherwise exercise control over property other than real property. Id. § 31.01(4).  Appropriation of property is unlawful if, inter alia, it is without the owner’s effective consent.  Id. § 31.03(b).

          A person acts intentionally with respect to the nature of his conduct or a result of his conduct when it is his conscious objective or desire to engage in the conduct or to cause the result. Tex. Penal Code Ann. § 6.03(a) (Vernon 2003).  To “deprive,” as applicable, means to withhold 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. Tex. Penal Code Ann. § 31.01(2).  Pursuant to the Penal Code and as applicable herein, a person is an “owner” if he 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.  Tex. Penal Code Ann. § 1.07(a)(35) (Vernon Supp. 2009).                     

B.      Legal sufficiency

          Appellant contends that the evidence is legally insufficient to show that she (1) unlawfully appropriated property (2) with intent to deprive the owner of the property.

          1.      Unlawfully appropriated property

The State presented evidence that appellant appropriated the sunglasses and boots by exercising control over them. See Tex. Penal Code Ann. § 31.01(4). 

Seastrunk and Almerez each testified that they watched appellant take several pairs of sunglasses, grab a handbag, and walk to the home décor department, where she removed the dust cover from the handbag, wrapped the sunglasses in the cover, and placed the wrapped items in a cabinet.  Seastrunk and Almerez also saw appellant place a pair of boots in the cabinet. Seastrunk and Almarez testified that they went to the home decor department and identified the items appellant had placed in the cabinet. Seastrunk and Almerez testified that they watched on security cameras as appellant returned to the store the next day, went to the home décor department, retrieved the items she had placed in the cabinet the day before, placed the items in her shopping bag, and left the store without paying for the items.  From this evidence the jury could have reasonably concluded that appellant appropriated the sunglasses and boots.  See id.

The State presented evidence that the appropriation was unlawful because appellant did not have consent of the owner, who was Almerez.  See id. § 31.03(b).

It is undisputed that Neiman Marcus, a corporation, was the actual lawful owner of the property at issue.  Because a corporation cannot itself testify, when allegedly stolen property is owned by a corporation, it is proper and preferable for the indictment to allege that the property was taken from the custody and control of a natural person acting for the corporation.  See Freeman v. State, 707 S.W.2d 597, 605 (Tex. Crim. App. 1986); Castillo v. State, 469 S.W.2d 572, 573 (Tex. Crim. App. 1971); Lewis v. State, 193 S.W.3d 137, 140 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (stating that when corporation owns property at issue, State may allege ownership in “special owner”); Villani v. State, 116 S.W.3d 297, 306 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d); Chowdhury v. State, 888 S.W.2d 186, 187 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). 

          The indictment alleged that appellant unlawfully appropriated sunglasses and boots “from Edward Alm[e]rez, the owner thereof.” Under the Penal Code, an “owner” includes one with (1) title to the property, (2) possession of the property, whether lawful or not, or (3) a greater right to possession of the property than the appellant. See Tex. Penal Code Ann. § 1.07(a)(35)(A). “Possession” means actual care, custody, control, or management.  Id. § 1.07(a)(39).

          The State presented evidence that, at the time appellant appropriated the merchandise at issue, Almerez had a greater right to possession of the merchandise than had appellant. See id. § 1.07(a)(35)(A); Freeman, 707 S.W.2d at 603. Almerez testified that he has been employed as the loss prevention manager of the Neiman Marcus store for 10 years. “Proof of a management position alone is insufficient to sustain the ownership allegation absent some showing that the named owner had exercised some degree of care, custody, control, or management over the property allegedly stolen.”  Freeman, 707 S.W.2d at 603.  Here, the record further shows that Almerez’s job function was to monitor security of the store, conduct investigations, and to prevent loss of merchandise.  Hence, the jury could have reasonably concluded that Almerez did more than occupy a management position: his responsibilities extended to physically protecting the inventory.  Almerez also testified that he had a greater right to possession of the merchandise than had appellant and that he did not consent to appellant’s removing the merchandise at issue without paying for it.

          From this evidence, the jury could have reasonably concluded that Almerez was the owner of the merchandise, as defined under the Penal Code, such that appellant’s appropriation of, or exercise of control over, the merchandise without Almerez’s consent was unlawful.  See Tex. Penal Code Ann. § 1.07(a)(35)(A); Johnson v. State, 606 S.W.2d  894, 895–96 (Tex. Crim. App. 1980) (holding store employee who was employed to protect property and keep it from being stolen had greater right to possess); Rabb v. State, 681 S.W.2d 152, 154 (Tex. App.—Houston [14th Dist.] 1984, pet. ref’d) (“A person acting on behalf of a corporation, with managerial authority and responsibility over its goods, is the effective owner . . . .”).

          2.       Intent to Deprive the Owner

Appellant further contends that the evidence is legally insufficient to show that she “had the requisite intent to deprive Almerez of the” merchandise or that Almerez was so deprived.

          A jury may infer intent from any facts that tend to prove its existence, such as acts, words, and conduct of the defendant. See Moore v. State, 969 S.W.2d 4, 11 (Tex. Crim. App. 1998); Christensen v. State, 240 S.W.3d 25, 32 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d).  Here, the State presented evidence that appellant secreted the sunglasses and boots in the home department and that she returned the next day and removed them from the store, without paying for them.  When Seastrunk and Almerez chased after her, appellant swung her bag at Almerez, screaming, “[N]o, no, get off of me” and slammed Almerez’s hand against the door.  Almerez testified that appellant refused to release the bag and that they struggled. From the evidence, the jury could have reasonably concluded that appellant acted with intent to permanently deprive Almerez of the merchandise.

Appellant complains that the evidence is insufficient to show that “she permanently withheld property from Almerez or held the property for so long a period that a major portion of the value or enjoyment of the property was lost to Almerez.”  Even though Almerez intercepted appellant and recovered the merchandise before appellant could reach her truck and drive away, a successful carrying away of the merchandise is not an element of the offense.  See Hawkins v. State, 214 S.W.3d 668, 670 (Tex. App.—Waco 2007, no pet.).  The State was required to prove only that appellant acted with intent to deprive Almerez of the property.  See Tex. Penal Code Ann. § 31.03(a).

          Viewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found beyond a reasonable doubt that appellant unlawfully appropriated property with intent to deprive the owner, Almerez, of the property.[1] See Tex. Penal Code Ann. §§ 1.07(a)(35), 31.03. We hold that the evidence is legally sufficient to support the jury’s verdict.  See Williams, 235 S.W.3d at 750.

C.      Factual sufficiency

          Appellant next contends that the same evidence is factually insufficient to support her conviction for the offense of theft.

As discussed above, the State was required to prove beyond a reasonable doubt that appellant unlawfully appropriated property with intent to deprive the owner, Almerez, of the property.  See Tex. Penal Code Ann. § 31.03.

First, the State presented evidence that appellant appropriated the sunglasses and boots by exercising control over them and that the appropriation was unlawful.  See id. § 31.01(4). Seastrunk and Almerez each testified that they watched appellant secrete the sunglasses and boots in a cabinet in housewares.  The next day, Seastrunk and Almerez watched on security cameras as appellant returned to the store, went to the home department, retrieved the items she had placed in the cabinets the day before, placed the items in her shopping bag, and then walked out of the store without paying for the items.  Almerez testified that he has been employed as the security manager of the Neiman Marcus store for 10 years and that his function is to perform security, investigations, and loss prevention for the store, that he had a greater right to possession of the store merchandise at issue than had appellant, and that he did not consent to appellant taking the merchandise without purchasing it.  See id. § 31.03(b). 

From this evidence, the jury could have reasonably concluded that Almerez was the owner of the merchandise, as defined under the Penal Code, such that appellant’s appropriation of, or exercise of control over, the merchandise was unlawful because it was without Almerez’s consent.  See id. § 31.01(4). 

In addition, the State presented evidence that appellant acted with intent to deprive the owner, Almerez, of the property.  Seastrunk and Almerez each testified that, not only did appellant secrete the items and remove them from the store without paying for them, but when Almerez attempted to regain control over the merchandise, appellant screamed, pushed Almerez against the door, and refused to release the bag of merchandise.  See id. § 31.01(4).  A jury may infer intent from a defendant’s acts, words, and conduct.  Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002); see McGee v. State, 923 S.W.2d 605, 608 (Tex. App.—Houston [1st Dist.] 1995, no pet.).  From this evidence, the jury could have reasonably concluded that appellant intended to deprive the owner, Almerez, of the merchandise.

Although she does not present clear argument or support any contentions with citation to authority, appellant seems to challenge the evidence to prove her identity as the actor.  See Tex. R. App. P. 38.1(h).  Appellant suggests that Almerez’s testimony was unclear with regard to whether appellant or Kennedy was the actor.  To the contrary, the record shows that Almerez was asked to clarify his testimony and that he specifically identified appellant as the actor. Moreover, the record also shows that Almerez identified appellant in a photographic line-up and at trial; the security tapes were played to the jury, which allowed it to draw comparisons between the actor on the tapes and appellant sitting in court; and Detective Benton testified that appellant identified herself and her truck on the tapes, admitted that the cellular telephone dropped at the scene belonged to her, and admitted that she had dropped the telephone when Almerez grabbed her.

          We must give deference to the responsibility of the factfinder to fairly weigh evidence, to draw reasonable inferences from the facts, and to resolve any conflicts in the testimony.  See Marshall, 210 S.W.3d at 625. Considering all of the evidence in a neutral light, we cannot conclude that the evidence supporting the conviction is too weak to support the fact finder’s verdict or that the verdict is against the great weight and preponderance of the evidence. See Laster, 275 S.W.3d at 518.  We hold that the evidence is factually sufficient to support the jury’s verdict.

          Accordingly, we overrule appellant’s first and second points of error.

Conclusion

       We affirm the judgment of the trial court.

                                                       Laura Carter Higley

                                                       Justice

Panel consists of Justices Keyes, Hanks, and Higley.

Do not publish.  Tex. R. App. P. 47.2(b).

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[1]              Appellant also contends that “proof that Appellant assisted the unknown primary actor in making getaway after the crime committed is insufficient to support Appellant’s conviction as a party to the crime.”  As the State points out, the jury was not instructed on, and did not convict appellant on, a parties theory.