Shameon Eshae Henry v. State ( 2014 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-13-00730-CR
Shameon Eshae HENRY,
Appellant
v.
The State of
The STATE of Texas,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2013CR2853
Honorable Maria Teresa Herr, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice
Marialyn Barnard, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: June 4, 2014
AFFIRMED AS MODIFIED
A jury found Shameon Henry guilty of the offense of theft under $1,500, enhanced by prior
convictions. The trial court sentenced Henry to imprisonment in state jail, probated for two years,
and assessed a fine of $1,000. In two issues on appeal, Henry contends: (1) the evidence at trial is
insufficient to support her conviction; and (2) the trial court improperly assessed attorney’s fees.
We modify the trial court’s judgment with regard to the assessment of attorney’s fees and affirm
the judgment as modified.
04-13-00730-CR
BACKGROUND
Adolpho Vidales, a plain-clothed loss prevention employee at a Walmart store, observed
Henry and Chantel West, “quick-select” several items of merchandise in the infant department and
place them in a shopping cart. Vidales testified that “quick-selecting,” which occurs when
someone quickly selects merchandise without examining it, is an indication of shoplifting. Vidales
then observed Henry and West walk together to the women’s clothing department where West
“quick-selected” additional items of merchandise. Henry and West then walked together to the
customer service counter without paying for the merchandise, and West requested a refund for the
merchandise. Pursuant to the store’s policy regarding items returned with no receipt, the cashier
issued a gift card for $176.56. Vidales testified that the gift card was handed to West. Vidales
then observed Henry and West walk back to the infant department where West handed the gift
card to Henry, and Henry placed it in her back pocket. The two women parted ways and left the
store through different exits.
Vidales approached Henry after she exited the store and asked to speak with her about the
fraudulent refund. Henry produced the gift card from her pocket and accompanied Vidales to the
loss prevention office. Henry and West were subsequently arrested for committing theft.
SUFFICIENCY OF THE EVIDENCE
A. Standard of Review
The standard for reviewing sufficiency of the evidence in a criminal appeal is the Jackson
v. Virginia legal sufficiency standard. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App.
2010). “In determining whether the evidence is legally sufficient to support a conviction, a
reviewing court must consider all of the evidence in the light most favorable to the verdict and
determine whether, based on that evidence and reasonable inferences therefrom, a rational fact
finder could have found the essential elements of the crime beyond a reasonable doubt.” Gear v.
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State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307,
318–19 (1979)). When viewing the evidence in the light most favorable to the verdict, we defer
to the jury’s credibility and weight determinations. Brooks, 323 S.W.3d at 899. Circumstantial
evidence alone can be sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.
App. 2007). When the charge authorizes the jury to convict the defendant on more than one theory,
the guilty verdict will be upheld “if the evidence is sufficient on any theory authorized by the jury
charge.” Anderson v. State, 416 S.W.3d 884, 889 (Tex. Crim. App. 2013).
B. Discussion
Under the charge, the jury was allowed to find Henry guilty of the theft of the gift card,
either as a principal or under the law of parties. Henry contends the evidence is insufficient to
establish her intent to deprive Walmart of property because she did not participate in the refund
transaction. Henry concedes that the evidence is sufficient to establish that West committed the
theft, but contends that Henry cannot be responsible as a party because there is no evidence that
she knew West intended to commit a theft.
A person commits theft if he “unlawfully appropriates property with intent to deprive the
owner of property.” TEX. PENAL CODE ANN. § 31.03(a) (West Supp. 2013). Under 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 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 . . . acting with the 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.” TEX. PENAL CODE ANN. § 7.02(a)(2) (West 2011). The intent to promote
or assist the commission of a theft may be inferred from the acts, words, and conduct of the accused
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and from the circumstances under which the theft occurred. Roberts v. State, 319 S.W.3d 37, 49
(Tex. App.—San Antonio 2010, pet. ref’d).
To prove that a person is responsible as a party, there must be sufficient evidence of “an
understanding and common design to commit the offense.” Gross v. State, 380 S.W.3d 181, 186
(Tex. Crim. App. 2012). In making this determination, we may consider “events occurring before,
during and after the commission of the offense.” Cordova v. State, 698 S.W.2d 107, 111 (Tex.
Crim. App. 1985). When relying on circumstantial evidence, “[e]ach fact need not point directly
and independently to the guilt of the [defendant], as long as the cumulative effect of all the
incriminating facts are sufficient to support the conviction.” Guevara v. State, 152 S.W.3d 45, 49
(Tex. Crim. App. 2004). Without other incriminating evidence, the mere presence of a person
either before, during, or after the commission of the offense, or in flight from the scene, is
insufficient to establish party status. Thompson v. State, 697 S.W.2d 413, 417 (Tex. Crim. App.
1985).
The jury was provided sufficient evidence from which it could rationally conclude that
Henry aided West in committing theft of the giftcard. Vidales testified that Henry placed two
items of merchandise in the shopping cart from the infant department. Vidales recalled that one
of the items was either a stroller, a play pen, or a swing. A photograph of the merchandise was
entered into evidence. Consistent with Vidales’s testimony, one of the items was a baby accessory
in a large box. The police officer dispatched to investigate testified that West was “significantly”
and noticeably pregnant. Vidales also testified that he stayed with Henry and West as they walked
throughout the store and that they never separated until after Henry received the gift card. Viewing
this evidence in the light most favorable to the verdict, a rational juror could conclude that Henry
aided West by loading merchandise in the shopping cart.
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The jury could also infer from these circumstances that Henry intended to assist West in
the commission of the theft. Henry “quick-selected” merchandise and observed West as she
“quick-selected” merchandise. Henry then accompanied West as she bypassed the checkout
registers and went directly to the customer service counter. Vidales testified that Henry was
present as West requested a refund for the merchandise that was never purchased. Vidales then
witnessed Henry and West walk back to the infant department where West gave Henry the gift
card. Viewing this evidence in the light most favorable to the verdict, a rational juror could infer
that Henry knew that West would commit theft. Accordingly, we hold that the evidence is
sufficient to support Henry’s conviction under the law of parties.
ASSESSMENT OF ATTORNEY’S FEES
In its final judgment, the trial court assessed court costs of $348 in addition to an
unspecified amount of attorney’s fees. Henry contends that her status as an indigent defendant
precludes assessment of the attorney’s fees. A trial court may not assess the costs of legal services
provided, including the cost of an appointed attorney, unless the trial court determines that the
defendant has financial resources that enable him to offset the costs. TEX. CODE CRIM. PROC. ANN.
art. 26.05(g) (West Supp. 2013); Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010).
“A defendant who is determined by the court to be indigent is presumed to remain indigent for the
remainder of the proceedings in the case unless a material change in the defendant’s financial
circumstances occurs.” TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West 2009). The trial court
determined that Henry was indigent when it appointed an attorney to represent her, and the State
concedes that the record contains no evidence of a material change in Henry’s financial
circumstances. Accordingly, we hold that the trial court erred in assessing attorney’s fees and
modify the trial court’s judgment to delete the assessment of attorney’s fees. See Cates v. State,
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402 S.W.3d 250, 251–52 (Tex. Crim. App. 2013); Fulmer v. State, 401 S.W.3d 305, 318–19 (Tex.
App.—San Antonio 2013, pet. ref’d).
CONCLUSION
The trial court’s judgment is modified to delete the assessment of attorney’s fees. As
modified, the trial court’s judgment is affirmed.
Catherine Stone, Chief Justice
DO NOT PUBLISH
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