Gilda Hernandez v. State ( 2015 )

ACCEPTED
13-14-00498-CR
FILED THIRTEENTH COURT OF APPEALS
IN THE 13TH COURT OF APPEALS CORPUS CHRISTI, TEXAS
CORPUS CHRISTI 3/25/2015 2:23:14 PM
DORIAN RAMIREZ
3/25/15 CLERK
DORIAN E. RAMIREZ, CLERK
No. 13-14-498-CR
BY DTello
IN THE COURT OF APPEALS RECEIVED IN
13th COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI/EDINBURG, TEXAS
AT CORPUS CHRISTI 3/25/2015 2:23:14 PM
DORIAN E. RAMIREZ
Clerk
GILDA HERNANDEZ,
APPELLANT,
v.
THE STATE OF TEXAS,
APPELLEE.
ON APPEAL FROM COUNTY COURT AT LAW # 2
NUECES COUNTY, TEXAS
BRIEF FOR THE STATE
Douglas K. Norman
State Bar No. 15078900
Assistant District Attorney
105th Judicial District of Texas
901 Leopard, Room 206
Corpus Christi, Texas 78401
(361) 888-0410
(361) 888-0399 (fax)
douglas.norman@co.nueces.tx.us
Attorney for Appellee
ORAL ARGUMENT IS NOT REQUESTED
TABLE OF CONTENTS
INDEX OF AUTHORITIES .......................................................................... ii
SUMMARY OF THE ARGUMENT ..............................................................1
ARGUMENT ...................................................................................................1
Reply Point
The evidence was legally sufficient to support the theft conviction. .........1
I. Statement of Fact. ............................................................................1
II. Standard of Review. .......................................................................3
III. Application to the Present Theft Conviction..............................4
PRAYER ..........................................................................................................7
RULE 9.4 (i) CERTIFICATION .....................................................................8
CERTIFICATE OF SERVICE ........................................................................8
INDEX OF AUTHORITIES
Cases
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010). .............................3
Dyer v. MacDougall, 201 F.2d 265 (2nd Cir. 1952). ......................................6
Fuentes v. State, 991 S.W.2d 267 (Tex. Crim. App. 1999). ............................4
Gear v. State, 340 S.W.3d 743 (Tex. Crim. App. 2011). ................................6
United States v. Heath, 970 F.2d 1397 (5th Cir. 1992). ..................................6
Hill v. State, 633 S.W.2d 520 (Tex. Crim. App. 1981). ............................. 4, 5
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979). ......................... 3, 4
Jones v. State, 900 S.W.2d 392 (Tex. App.—San Antonio 1995,
pet. ref’d)..........................................................................................................5
Obigbo v. State, 6 S.W.3d 299 (Tex. App.—Dallas 1999, no pet.). ...............5
Padilla v. State, 326 S.W.3d 195 (Tex. Crim. App. 2010)..................... 3, 4, 6
Roberson v. State, 821 S.W.2d 446 (Tex. App.—Corpus Christi 1991, pet.
ref'd). ................................................................................................................5
Saenz v. State, 976 S.W.2d 314 (Tex. App.—Corpus Christi 1998,
no pet.). ............................................................................................................6
Sharp v. State, 707 S.W.2d 611 (Tex. Crim. App. 1986). ...............................4
Turro v. State, 867 S.W.2d 43 (Tex. Crim. App. 1993). .................................4
Wawrykow v. State, 866 S.W.2d 87 (Tex. App.--Beaumont 1993, pet ref'd). 6
Statutes & Rules
Tex. Penal Code § 7.02. ...................................................................................3
ii
Tex. Penal Code § 31.01. .................................................................................4
Tex. Penal Code § 31.03. .................................................................................4
iii
NO. 13-14-498-CR
GILDA HERNANDEZ, § COURT OF APPEALS
Appellant, §
§
V. § FOR THE THIRTEENTH
§
THE STATE OF TEXAS, §
Appellee. § DISTRICT OF TEXAS
BRIEF FOR THE STATE
TO THE HONORABLE COURT OF APPEALS:
SUMMARY OF THE ARGUMENT
Hernandez’s active participation in placing items of merchandise in
Esparza’s bag while shopping in Hobby Lobby sufficiently showed an
exercise of control and an intent to deprive the owner of the items in
question to support her theft conviction.
ARGUMENT
Reply Point
The evidence was legally sufficient to support the theft conviction.
I. Statement of Fact.
Gilda Hernandez was charged by information with theft of property
valued at more than $50 from Hobby Lobby. (CR p. 5)
Police Officer Javier Cantu testified that Jasmine Esparza had been
detained in the office at the Hobby Lobby store and was found to have
property in her purse worth over $200 belonging to Hobby Lobby. (RR vol.
2, p. 76)
Hobby Lobby store manager Andy Moreno testified that Hernandez
and Esparza were both selecting merchandise randomly and placing it in
Esparza’s bag (RR vol. 2, p. 83), and that Hernandez was side-by-side with
Esparza and was herself placing items in Esparza’s bag. (RR vol. 2, p. 92)
Specifically, Hernandez was taking down merchandize, including jewelry
and children’s clothing, which was later recovered from Esparza’s bag. (RR
vol. 2, pp. 84-85) Esparza then left the store without paying for the
merchandise, but was caught and escorted back into the store. (RR vol. 2, p.
86)
Gilda Hernandez testified that she went to Hobby Lobby with
Esparza, who was a friend of her daughter. (RR vol. 2, p. 103) Hernandez
specifically denied that she intended to take anything from Hobby Lobby.
(RR vol. 2, pp. 106, 111) Hernandez claimed that, at some point, she found
out that Esparza was “taking things,” but she denied helping Esparza take
any items or picking out any items for Esparza to place in her bag. (RR vol.
2, pp. 106, 109) Hernandez also denied that she was walking around with
Esparza in Hobby Lobby. (RR vol. 2, p. 120)
2
The Jury Charge submitted the theory of party liability to the jury,
instructing them that Hernandez was criminally responsible “if, acting with
intent to promote or assist the commission of the offense, she solicit[ed],
encourage[d], direct[ed], aid[ed], or attempt[ed] to aid [another] person to
commit the offense.” (CR pp. 9, 11) See Tex. Penal Code § 7.02 (a) (2).
Hernandez was found guilty by a jury and was sentenced by the trial
court to 25 days in jail. (CR p. 18)
II. Standard of Review.
In order to determine if the evidence is legally sufficient, the appellate
court reviews all of the evidence in the light most favorable to the verdict
and determines 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 (1979). In Brooks v. State, 323
S.W.3d 893 (Tex. Crim. App. 2010), the Court of Criminal Appeals
abandoned factual sufficiency review and determined that the Jackson v.
Virginia legal-sufficiency standard is the only standard that a reviewing
court should apply in determining whether the evidence is sufficient. This
“familiar standard gives full play to the responsibility of the trier of fact
fairly to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts.” Padilla v.
3
State, 326 S.W.3d 195, 200 (Tex. Crim. App. 2010) (quoting Jackson, 443
U.S. at 319).
The trier of fact is the sole judge of the credibility of the witnesses and
the strength of the evidence, Fuentes v. State, 991 S.W.2d 267, 271 (Tex.
Crim. App. 1999), and, as such, may choose to believe or disbelieve any
portion of the witnesses' testimony. Sharp v. State, 707 S.W.2d 611, 614
(Tex. Crim. App. 1986). When faced with conflicting evidence, the
reviewing court should presume the trier of fact resolved conflicts in favor
of the prevailing party. Padilla, 326 S.W.3d at 200; Turro v. State, 867
S.W.2d 43, 47 (Tex. Crim. App. 1993).
III. Application to the Present Theft Conviction.
A person commits theft if he “unlawfully appropriates property with
intent to deprive the owner of property.” Tex. Penal Code § 31.03 (a). To
“appropriate” is defined as “to acquire or otherwise exercise control over
property other than real property.” Tex. Penal Code § 31.01(4)(B).
In the shoplifting context, the Court of Criminal Appeals has stated
that “it is not essential that the property be taken off the premises; it is
instead only essential that the evidence show an ‘exercise of control over the
property,’ coupled with an ‘intent to deprive the owner of the property.’”
Hill v. State, 633 S.W.2d 520, 521 (Tex. Crim. App. 1981). In Hill, the
4
Court found sufficient evidence of both exercise of control and intent to
deprive in the defendant’s act of placing an item of merchandise under his
shirt. Id.; see also Roberson v. State, 821 S.W.2d 446, 448 (Tex. App.—
Corpus Christi 1991, pet. ref'd) (evidence sufficient to show appropriation
where defendant removed tags from shirt and concealed it in a bag).
In the present case, Moreno’s testimony clearly shows that Hernandez
was assisting Esparza to obtain merchandize and place it inside her bag,
which sufficiently shows both an exercise of control and an intent to deprive.
Although Hernandez and Esparza might have had the right to carry the
merchandise in question or place it in a shopping cart or basket before taking
it to the checkout, the act of placing it inside a bag, like placing merchandise
under a shirt in Hill, goes beyond what is reasonably expected and
sufficiently shows both an exercise of control and an intent to deprive
Hoddy Lobby of the merchandise in question.
As with any other question of circumstantial evidence and inference,
the fact finder may use common sense and apply common knowledge,
observation, and experience gained in the ordinary affairs of life when
giving affect to the inferences that may reasonably be drawn from the
evidence. Obigbo v. State, 6 S.W.3d 299, 306 (Tex. App.—Dallas 1999, no
pet.); Jones v. State, 900 S.W.2d 392, 399 (Tex. App.—San Antonio 1995,
5
pet. ref’d); Wawrykow v. State, 866 S.W.2d 87, 88-89 (Tex. App.--
Beaumont 1993, pet ref'd) (citing United States v. Heath, 970 F.2d 1397,
1402 (5th Cir. 1992)); see also Saenz v. State, 976 S.W.2d 314, 322 (Tex.
App.—Corpus Christi 1998, no pet.) (“Jurors are expected to draw upon
their own experiences and common knowledge and apply them to the facts
at hand.”).
The reasonable inference here is that Hernandez and Esparza were
shoplifting. Esparza’s act of leaving the store without paying for the
merchandise in question only confirms the reliability of this inference.
In addition, the fact finder may consider a defendant's implausible and
inconsistent statements as affirmative evidence of guilt. See Gear v. State,
340 S.W.3d 743, 747 (Tex. Crim. App. 2011); Padilla v. State, 326 S.W.3d
195, 201 (Tex. Crim. App. 2010). As the court of criminal appeals has
noted, “the carriage, behavior, bearing, manner and appearance of a
witness—in short, his ‘demeanor’—is a part of the evidence.” Padilla, 326
S.W.3d at 201 (quoting Dyer v. MacDougall, 201 F.2d 265, 268–69 (2nd
Cir. 1952)).
In the present case, assuming that the jury believed Moreno’s
testimony that Hernandez was with Esparza in the store and actively helping
6
her to put merchandise in her bag, Hernandez’s untruthful denials provide
additional affirmative evidence of her guilt.
The evidence was legally sufficient to support the theft conviction and
Hernandez’s issue on appeal should be overruled.
PRAYER
For the foregoing reasons, the State respectfully requests that the
judgment of the trial court be affirmed.
Respectfully submitted,
/s/Douglas K. Norman
___________________
Douglas K. Norman
State Bar No. 15078900
Assistant District Attorney
105th Judicial District of Texas
901 Leopard, Room 206
Corpus Christi, Texas 78401
(361) 888-0410
(361) 888-0399 (fax)
douglas.norman@co.nueces.tx.us
7
RULE 9.4 (i) CERTIFICATION
In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I
certify that the number of words in this brief, excluding those matters listed
in Rule 9.4(i)(1), is 1,262.
/s/Douglas K. Norman
___________________
Douglas K. Norman
CERTIFICATE OF SERVICE
This is to certify that a copy of this brief was e-mailed on March 25,
2015, to Appellant’s attorney, Mr. Eric Flores.
/s/Douglas K. Norman
___________________
Douglas K. Norman
8