Hines, Cathy Rushing v. State ( 2006 )

Affirmed and Memorandum Opinion filed April 13, 2006

Affirmed and Memorandum Opinion filed April 13, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-04-01124-CR

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CATHY RUSHING HINES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 972,480

M E M O R A N D U M  O P I N I O N

Appellant Cathy Rushing Hines challenges her conviction for theft as a third-time offender and asserts that the trial court erred in admitting into evidence her post-arrest admission that she was on parole, as well as the opinion testimony of two loss prevention officers that appellant intended to deprive a department store of its property. We affirm.

I.  Factual and Procedural Background

On December 28, 2003, Taurus Lindsay was working as a loss prevention officer at one of Houston=s Wal-Mart locations.  Lindsay=s duties in the store included watching for shoplifting, price switching, and fraud in connection with the return of store merchandise.  Lindsay walked the floors of the store and watched for individuals engaging in suspicious behavior.  On this particular day, Lindsay and his partner, Charles Okwuonu  observed appellant walking around the store loading various items into her cart. Among the items appellant selected were a globe, two sheet sets, and a comforter set. While loading these random items into her cart, appellant appeared to be looking around for cameras and other security devices.  Appellant took the items to the front of the store where she joined another woman in the customer service line.  Lindsay testified that appellant gave the items to the cashier and obtained a gift card in return, and the two women then walked over to the McDonald=s food service counter across the store.  Lindsay and Okwuonu approached the two women and took them to the security office for questioning. At this time, appellant had the gift card in her possession.^[1] 

Appellant asked if she could return to her vehicle and speak to her minor son. While Lindsay escorted appellant out of the store to her car, appellant openly told Lindsay that she Ahad been in trouble@ and was currently Aon parole.@ Appellant asked Lindsay whether Wal-Mart was going to prosecute her, and Lindsay informed her that it was the store=s policy to prosecute all individuals for theft.  Appellant=s son was removed from the car and someone was called to retrieve him.  Appellant was escorted back to the store=s security office, where she repeated her statements about being on parole. Appellant further stated that because of her past criminal conduct, she and her cousin had decided that it would be best if her cousin, who had never been in trouble with the law before, took all the blame. Lindsay and Okwuonu then called the Houston Police Department and officers  came to the store and arrested both appellant and her cousin.

Appellant=s cousin, Ella Rushing, testified at appellant=s trial that due to the long lines at the customer service desks, she told appellant that she would stand in line while appellant went into the store to pick up items that she wished to get in exchange for those she was returning. Rushing stated that she had no intention of engaging in any criminal activity until another woman in the line told her how she could obtain a gift card without having to exchange her own merchandise.   Thus, when appellant returned,  Rushing stated that she took the basket of shopping items from appellant and went through the line alone while appellant waited by the McDonald=s counter across the store.

Appellant was charged by indictment with the offense of theft, enhanced with two prior theft convictions, thereby elevating the offense to a third degree felony.   Appellant pleaded not guilty. 

Before trial, appellant filed a motion in limine to exclude any mention of her oral statements to Wal-Mart personnel about being on parole.  The trial court denied this motion and the case proceeded to trial before a jury.  The jury found appellant guilty as charged, and the trial court assessed appellant=s punishment at two years= confinement in the state jail.

II.  Issues Presented

Appellant asserts the following points on appeal:

(1)     The trial court erred in admitting appellant=s statements to Okwuonu and Lindsay that she Ahad been in trouble before@ and was Aon parole@ because the statements were given during a custodial interrogation without Miranda warnings and violated the rule set out in Tamez v. State, 11 S.W.3d 198 (Tex. Crim. App. 2000).  

(2)-(3) The trial court erred in allowing the loss-prevention officers testify and give their opinions as to whether they believed appellant intended to deprive the store of its property.

III.  Analysis

A.      Did the trial court err in admitting into evidence appellant=s oral statements that she Ahad been in trouble@ and was on parole?

In her first issue, appellant contends that the trial court erred in admitting into evidence her oral statements that she was Aon parole@ and had Abeen in trouble,@ because these statements were given during a custodial interrogation without Miranda warnings.  She further asserts that these statements also constitute improperly admitted evidence of prior convictions used for jurisdictional purposes.

As a threshold matter, we conclude that appellant=s statements during questioning were not subject to Miranda or article 38.22 protections because she was not in Acustody@ when she made the statements.  See Tex.Code Crim. Proc. Ann. art. 38.22 (Vernon Supp. 2005).  

The main issue before this court is whether article 38.22 requires Miranda warnings on oral statements of the accused taken by private security personnel.   We follow our prior opinion in Oriji v. State, and conclude that it does not. 150 S.W.3d 833, 836B37 (Tex. App.CHouston [14 Dist.] 2004, pet. ref=d).

Article 38.22 places strict requirements that must be satisfied before oral statements made as a result of custodial interrogation may be admitted into evidence.  Tex. Code Crim. Proc. Ann. art. 38.22. In Bass v. State, the Court of Criminal Appeals analyzed article 38.22 and concluded the term Acustodial interrogation@ was intended by the legislature to be construed consistently with its meaning under the Fifth Amendment of the United States Constitution. 723 S.W.2d 687, 690‑91 (Tex. Crim. App. 1986).   In Miranda v. Arizona, the United States Supreme Court defined custodial interrogation as Aquestioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.@    384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694 (1966); see Escamilla v. State, 143 S.W.3d 814, 821 (Tex. Crim. App.  2004) (stating that article 38.22 does not apply to non‑law enforcement personnel who are not state agents).   Appellant does not contend Okwuonu and Lindsay are law enforcement officers.           We conclude that the Asafeguards attendant to custodial interrogation do not come into play unless the person to whom the statements are made is acting as an agent of law enforcement pursuant to a police practice.@   Macias v. State, 733 S.W.2d 192, 195 (Tex. Crim. App. 1987).   Private citizens, even security guards, are not ordinarily considered Alaw enforcement officers.@  Ortiz v. State, 727 S.W.2d 37, 38-39 (Tex. App.BSan Antonio 1987, pet. ref=d); see also Hill v. State, 643 S.W.2d 417, 419 (Tex. App.BHouston [14th Dist.] 1982, no pet.); Lambert v. State, 625 S.W.2d 31, 33 (Tex. App.BSan Antonio 1981, no pet.). The statements complained of were made to employees of Wal-Mart, who worked in the loss prevention department.

          There is no evidence in this case to suggest that the store employees were acting as agents of law enforcement pursuant to a police practice.   In determining whether a private citizen (or here, a security guard) is an agent of the State, we must consider whether the government initiated, knew of, or acquiesced in intrusive conduct and whether the party performing the search intended to assist law enforcement efforts or to further his own ends.  Dawson v. State, 868 S.W.2d 363, 369 (Tex. App.BDallas 1993, pet. ref=d) (holding that wrongful search and seizure by private individual did not violate the Fourth Amendment). Statements that are not the Aresult of@ or do not Astem from@ custodial interrogation are admissible under article 38.22 on the question of guilt, and not merely to impeach a defendant who testifies.  Chambliss v. State, 647 S.W.2d 257 (Tex. Crim. App. 1983); Kohler v. State, 713 S.W.2d 141, 143 (Tex. App.BCorpus Christi 1986, pet. ref'd) (finding that Fourth Amendment protections against searches apply only to searches conducted by law enforcement personnel).

The record contains no evidence that either of the employees were law enforcement officers or agents of law enforcement pursuant to a police practice. Law enforcement officials did not initiate, know of, or acquiesce in Wal-Mart=s employees efforts to obtain appellant=s statement, and the record reflects that appellant voluntarily offered her statements about being on parole.  See Arnold v. State, 659 S.W.2d 45, 48 (Tex. App.BHouston [14th Dist.] 1983, no pet.).  We conclude that  appellant=s statements were not made as a result of custodial interrogation. Thus, Miranda warnings were not required and the statements were not subject to article 38.22=s admissibility requirements.

As for appellant=s other arguments that these statements were improperly admitted evidence of prior convictions used for jurisdictional purposes and that they lacked relevance, we conclude that appellant has waived these complaints. Although appellant made the former objection during her motion in limine at the beginning of trial, she did not request a running objection to this evidence in connection with her motion in limine, nor did she re-urge this objection when this evidence was offered at trial.  The only objection appellant made at trial was during  Lindsay=s testimony: 

Q:[Prosecutor]: Did ya=all let her do that?

A: [Lindsay]: Yes, ma=am. I had the defendant leave her purse inside of our office with her cousin, a witness; and I escorted the defendant out to her car myself where we went up to her car, got her son.  On the way there the defendant then started questioning me on, do we have to prosecute her, which is Wal-Mart=s policy.  Anyone that comes in and deprives or steals their property are asked to be prosecuted. I explain to the defendant this is their policy.  I have to ask for prosecution.

Q: [Prosecutor]: Did she make any other statements to you at this time?

Defense Counsel: Your Honor, any statement that would be made at this point in the trial would not only be hearsay, but it would be at the time when this gentleman had her in a custodial manner and she was not free to go.  She was not advised of any Miranda rights. I would ask that he not be able at this point for those reasons to elicit what was said.

The Court: It will be overruled.

Q: [Prosecutor]: Did she make any other comments to you at the time you were going to get her child out of the car?

A: [Lindsay]: Yes. The defendant made the statement that she was on parole at the time, and that was the reason that she was out on parole at the time, and that was the reason that she was more or less willing-- or her cousin was willing, who had no record, to my knowledge, would basically say, prosecute my cousin and let me go...

(emphasis added).  Although the record reflects that appellant objected to the alleged use of prior convictions in her motion in limine, the record also reflects that she failed to register a timely and specific objection on these grounds during introduction of this evidence.  A motion in limine, even if granted, does not preserve error.  See Willis v. State, 785 S.W.2d 378, 384 (Tex. Crim. App. 1989); Webb v. State, 760 S.W.2d 263, 275 (Tex. Crim. App. 1988).   Appellant did not preserve any alleged error referring to the prior convictions or admitting irrelevant evidence.  See Armstrong v. State, 718 S.W.2d 686, 699 (Tex. Crim.  App. 1985);  Ford v. State, 112 S.W.3d 788, 791 (Tex. App.BHouston [14 Dist.] 2003, no pet.) (holding that appellant preserved error by requesting a running objection to the introduction of evidence of his prior convictions in connection with his motion in limine). Therefore, we overrule appellant=s first issue.

B.      Did the trial court err in allowing the store=s lossBprevention officers to testify that they believed appellant intended to deprive the store of its property?  

In her second and third issues, appellant contends that the trial court erred in allowing  Wal-Mart employees Lindsay and Okwuonu to give their Aopinions@ as to whether appellant intended to deprive Wal-Mart of its property.  More specifically, appellant argues that this testimony was speculative and beyond the scope of any expertise that either witness possessed.  Appellant further argues that this testimony concerned appellant=s mental state which was allegedly improper and not helpful to the jury.  We conclude that Lindsay=s and Okwuonu=s opinions on this issue were rationally based on their perceptions and proper lay opinion testimony under Texas Rule of Evidence 701.

When conducting a Rule 701 evaluation, the trial court must decide whether (1) the opinion is rationally based on perceptions of the witness and (2) it is helpful to a clear understanding of the witness=s testimony or to the determination of a fact in issue. Tex. R. Evid. 701.   The initial requirement that an opinion be rationally based on the perceptions of the witness is itself composed of two parts. First, the witness must establish personal knowledge of the events from which his opinion is drawn and, second, the opinion drawn must be rationally based on that knowledge.  Fairow v. State, 943 S.W.2d 895, 898 (Tex. Crim. App.  1997).  The perception requirement of Rule 701 requires the proponent of lay‑opinion testimony to establish that the witness has personal knowledge of the events upon which his opinion is based.  Id.   Personal knowledge often comes directly from the witness=s senses. See, e.g., Smith v. State, 683 S.W.2d 393, 404 (Tex. Crim. App.1984) (stating that police officer may give non‑expert opinion regarding physical facts he has observed ); Doyle v. State, 875 S.W.2d 21, 23 (Tex. App.BTyler 1994, no pet.)(holding that prison guard allowed to give opinion testimony under Rule 701 based on Awhat he saw@); State v. Welton, 774 S.W.2d 341, 343 (Tex. App.BAustin, pet. ref=d)(stating that police officer permitted to give non‑expert opinion regarding intoxication based in part on smelling the odor of alcohol).  Personal knowledge also may come from experience.  See  Austin v. State, 794 S.W.2d 408, 410‑11 (Tex. App.BAustin 1990, pet. ref=d) (holding that police officer permitted to testify that, based on his personal experience, it was his opinion that ASwedish deep muscle rub@ was a code for prostitution); Williams v. State, 826 S.W.2d 783, 785 (Tex. App.BHouston [14th] 1992, pet. ref'd) (using past experience, a police officer was permitted to testify, as either a lay‑witness or an expert, that he interpreted the defendant=s actions to be a drug transaction).  Although a witness cannot possess personal knowledge of another=s mental state, he may possess personal knowledge of facts from which an opinion regarding mental state may be drawn.  Fairow, 943 S.W.2d at 899.  The jury is then free to give as much or as little weight to the opinion as it sees fit. Id.  Thus, once the proponent of the opinion establishes personal knowledge of the facts underlying the opinion, he has satisfied the perception requirement of Rule 701. Id.  This is so even if the opinion concerns culpable mental state. Id.  Once the perception requirement is satisfied, the trial court must determine if the opinion is rationally based on that perception. Id.  at 900.  An opinion is rationally based on perception if it is an opinion that a reasonable person could draw under the circumstances.  Id.

As noted, the second requirement for admissibility under Rule 701 is that the opinion be helpful to the trier of fact either to understand the witness=s testimony or to determine a fact in issue. Tex. R. Evid. 701. Although there is no bright line indicating when an opinion is helpful, general evidentiary considerations of relevance and balancing invariably will assist the trial judge in making this determination.  Fairow, 943 S.W.2d at 900.  For example, a trial court properly acting within its discretion may determine that the confusing, misleading, or cumulative nature of an opinion renders it not helpful to the trier of fact and thus improper under Rule 701.

Another important factor in determining helpfulness is the ability or inability of the witness to convey the events from which his opinion is drawn.  See Roberts v. State, 743 S.W.2d 708, 711 (Tex. App.BHouston [14th] 1987, pet. ref.) (holding that an officer=s lay opinion about whether the police were harassing the defendant was unnecessary and inadmissible when the jury had the information before it and was able to draw its own inferences).  If the events are difficult or impossible to describe, however, an opinion is likely to be helpful.  See Jackson v. State, 822 S.W.2d 18, 29 (Tex. Crim. App. 1990) (allowing a police officer to testify that a defendant gave his confession voluntarily because it Awas no more than a short rendition of the facts.@).

Whether an opinion meets the fundamental requirements of Rule 701 is within the sound discretion of the trial court and its decision regarding admissibility should be overturned only if it abuses its discretion.  Joiner v. State, 825 S.W.2d 701, 708 (Tex. Crim. App. 1992).  Further, if there is evidence in the record supporting the trial court=s decision to admit or exclude an opinion under Rule 701, there is no abuse of discretion. See Carroll v. State, 916 S.W.2d 494, 503 (Tex. Crim. App. 1996).

In this case, both Lindsay and Okwuonu, working as lossBprevention officers for Wal-Mart, witnessed appellant=s actions in the store before, during, and after she exchanged Wal-Mart=s property for a gift card.  On the day of the incident, Lindsay and Okwuono observed appellant walking around the store loading random items of merchandise into her shopping cart. They both testified how they observed appellant  take the shopping cart to the customer service line and engage in a fraudulent return of merchandise.  Both Lindsay=s and Okwuonu=s opinions were based on events they personally witnessed. See Fairow, 943 S.W.2d  at 898‑99.  The trial court did not abuse its discretion in concluding that their opinions were rationally based on their personal observations.  See id. at 900. 

Moreover, the opinions given by Lindsay and Okwuonu go to a disputed fact issueBwhether appellant had the intent to deprive Wal-Mart of its property.  In addition, the record clearly indicates a conflict in the testimony between these loss prevention officers and appellant=s cousin, Ella Rushing.   Thus, the opinion testimony of the loss prevention officers satisfies the requirement of Rule 701(b) that the opinions be Ahelpful to ... the determination of a fact in issue.@ See Tex. R. Evid. 701(b); Webster v. State, 26 S.W.3d 717 (Tex. App.BWaco 2000, pet. ref=d.) (holding that opinion testimony helpful because it went to a disputed fact issueB whether the defendant was intoxicated as alleged in the indictment).  We conclude that the trial court did not abuse its discretion in admitting the opinions of the  lossBprevention officers regarding whether appellant intended to deprive Wal-Mart of its property.^[2]  See Chatham v. State, 2004 WL 2058396, *5 (Tex. App.CHouston [14 Dist.] 2004, no pet.) (holding opinion by witness that the collision was intentional and not accidental was rationally based on his perception) (not designated for publication).

Finally, even if the trial court=s admission of this evidence were erroneous, the error would be harmless. The jury heard all the facts upon which Lindsay=s and Okwuono=s opinions were based, and neither witness was presented as an expert on such matters. Therefore, the opinions added little, if any, weight to their testimony, and no harm resulted.  See Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001). Accordingly, we overrule appellant=s second and third issues.

Having overruled all of appellant=s issues, we affirm the trial court=s judgment.

/s/      Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed April 13, 2006.

Panel consists of Justices Hudson, Frost, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Okwuonu testified that appellant passed the shopping cart to the other woman (later identified as appellant=s cousin), who already was standing in line and then appellant walked over to the McDonald=s counter alone. He further stated that appellant did not stand in the customer service line with the other woman. Okwuonu believed the other woman, not appellant, had the gift card in her possession at the time he and Lindsay approached them. Appellant puts a significant amount of emphasis on the conflicting statements given by Okwuonu and Lindsay.  However, the jury, as the trier of fact, Ais the sole judge of the credibility of the witnesses and of the strength of the evidence.@  Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999).  The jury was free 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, we presume the trier of fact resolved conflicts in favor of the prevailing party.  Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). 

^[2]  Appellant also contends that Okwuonu=s testimony was inadmissible under Texas Rule of Evidence 702.  However, appellant concedes in her appellate brief that the record contains no evidence supporting Okwuonu=s expertise, skill, training, education, or specialized knowledge.  Okwuonu was not an expert, nor did he testify as an expert. Thus, Rule 702 was inapplicable to Okwuonu=s testimony and his opinion was properly admitted under Rule 701 as lay opinion testimony. See Tex. R. Evid. 701; 702.