Billie Knoll v. State

NUMBERS 13-14-00305-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
BILLIE KNOLL, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the County Court at Law No. 4
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Perkes
Memorandum Opinion by Justice Perkes
Appellant Billie Knoll appeals her conviction for misdemeanor theft. See TEX.
PENAL CODE ANN. § 31.03(a) (West, Westlaw through Ch. 46 2015 R.S.). The trial court
found appellant guilty and assessed punishment at six months’ community supervision
and a fine of $500.00. By a single issue, appellant contends the evidence was
insufficient to prove she had the requisite intent to deprive the store of the merchandise.
We affirm.
I. BACKGROUND
Johnny Rodriguez was employed as a loss prevention officer at a Sears
department store. While observing the conduct of store patrons, Rodriguez observed
appellant removing clothing from hangers and placing the clothing into plastic Sears
shopping bags. According to Rodriguez, this conduct served as a “big alert signal,”
warranting appellant’s continued observation via the store’s security cameras. In the
course of Rodriguez’s observation, he saw appellant continue to place Sears
merchandise into shopping bags throughout the store, remove two pairs of shoes from
the children’s shoe department and place them under her filled shopping bags, and then
proceed to the automotive section of the store. At the automotive section of the store,
Rodriguez watched appellant stop at a register, speak to an attendant, and then exit the
store with her cart full of unpaid-for merchandise. This testimony was corroborated by
surveillance footage admitted into evidence and played during the trial.
Jacob Cotton was also employed as a loss prevention officer at the store. He
reviewed the recorded surveillance footage of appellant’s earlier conduct in the store.
On the video, Cotton observed appellant “[grab] a stack of bags from the auto department
underneath the register” and begin placing merchandise into those bags. Cotton testified
that appellant made no effort to pay for the merchandise, except for the purchase of a car
detailing kit and the auto service performed on her vehicle, which she paid for with cash
about ten minutes after entering the store.
Officer Ghezzi, an off-duty police officer working at the mall where the store was
2
located, was called by the Sears loss prevention office and notified of appellant’s
behavior. Officer Ghezzi was told about a woman (appellant) “taking tags off of property
and secreting it away” by placing it into shopping bags. He and Officer Rogers, another
police officer, then went to the store. Officer Rogers joined Cotton and Rodriguez and
watched appellant, whereas Officer Ghezzi remained outside in his vehicle. Officer
Rogers subsequently notified Officer Ghezzi that appellant was leaving the store without
having paid for the merchandise. As appellant left the store and started walking towards
her vehicle, Officer Ghezzi approached and arrested her.
Appellant admitted during the trial that she placed the Sears merchandise into
bags and exited the store without having paid for it. She defended herself, however, by
stating that even though she exited the store with the unpaid-for merchandise, she did
not leave the store with the intent to deprive Sears of the merchandise without having
paid for it. Appellant testified that she went to Sears to have her vehicle serviced and,
anticipating a quick service, she left her purse in her vehicle. She took only her wallet
into the store. After leaving her car with the service technicians, she learned that the
service was going to take about an hour. She stated that approximately ten minutes after
arriving at the service department, she purchased a car detailing kit and unsuccessfully
attempted to retrieve a credit card from her vehicle.
Appellant testified she then decided to shop for her children. She explained that
the reason she removed the clothes from the hangers and placed them into the shopping
bags was because she was sorting the items into bags for each child, and trying to prevent
the hangers from tearing the bags. She further explained that because she left her credit
3
card in her purse, she intended to store her cart full of bagged merchandise in a certain
“glass cubbyhole thing” located inside the interlock door between the inside and outside
of the store. While between the two doors, she observed Officer Ghezzi “waiving like
something was wrong.” Based on her training as a nurse, she thought he was in distress.
Appellant testified she believed that she was responding to a perceived medical
emergency, and did not consciously take her shopping cart into the parking lot.
II. SUFFICIENCY OF EVIDENCE
By her sole issue, appellant contends the evidence was insufficient to prove she
had the requisite intent to commit a theft. Specifically, appellant argues that because
she was arrested prior to physically leaving the Sears property, which includes the parking
lot, the State did not show that she intended to commit theft.
A. Standard of Review
“The standard for determining whether the evidence is legally sufficient to support
a conviction is ‘whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.’” Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim.
App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307 (1979)) (emphasis in original); see
Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010) (plurality op.). The
fact-finder is the exclusive judge of the credibility of witnesses and of the weight to be
given to their testimony. Anderson v. State, 322 S.W.3d 401, 405 (Tex. App.—Houston
[14th Dist.] 2010, pet. ref'd) (citing Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App.
2008)). Reconciliation of conflicts in the evidence is within the fact-finder's exclusive
4
province. Id. (citing Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000)). We must
resolve any inconsistencies in the testimony in favor of the verdict. Id. (citing Curry v.
State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000)).
We measure the sufficiency of the evidence by the elements of the offense as
defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327
(Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997)). Such a charge is one that accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State's burden of proof or unnecessarily
restrict the State's theories of liability, and adequately describes the particular offense for
which the defendant was tried. Id.
In reviewing the sufficiency of the evidence, we look at “events occurring before,
during and after the commission of the offense and may rely on actions of the defendant
which show an understanding and common design to do the prohibited act.” Guevara v.
State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004) (citations omitted). Each fact need not
point directly and independently to the guilt of the appellant, as long as the cumulative
effect of all the incriminating facts are sufficient to support the conviction. Id. (citing
Alexander v. State, 740 S.W.2d 749, 758 (Tex. Crim. App. 1987) (en banc)). The
evidence is sufficient if the conclusion of guilt is warranted by the combined and
cumulative force of all the incriminating circumstances. Russell v. State, 665 S.W.2d
771, 776 (Tex. Crim. App. 1983)
B. Applicable Law
A person commits theft if she unlawfully appropriates property with the intent to
5
deprive the owner of the property. TEX. PENAL CODE ANN. § 31.03(a). A person acts
with intent when it is her conscious objective or desire to engage in the conduct or cause
the result. Id. § 6.03(a). Deprivation is not an element of intent to deprive; therefore,
the State need not prove actual deprivation in order to prove intent to deprive. Rowland
v. State, 744 S.W.2d 610, 612 (Tex. Crim. App. 1988). While evidence of actual
deprivation may be evidence of intent to deprive, other evidence may also indicate
whether intent to deprive exists. Id. Criminal intent is necessary to establish theft. See
Ellis v. State, 877 S.W.2d 380, 383 (Tex. App.—Houston [1st Dist.] 1994, pet. ref'd).
C. Discussion
During the trial, the trial court heard testimony that appellant acted in a suspicious
manner, removed clothes from hangers, removed price tags from clothes, placed
merchandise into shopping bags which she took from under a register, removed shoes
from boxes and placed them under the filled shopping bags, and walked out of the store
with a shopping cart full of unpaid merchandise. The court also heard testimony that
appellant, prior to walking out of the store, spoke to a checkout attendant, who then
proceeded to chase her as she walked out of the store. The court then heard Officer
Ghezzi’s testimony that he intercepted appellant after she left the store with unpaid
merchandise while she was walking toward her vehicle. Lastly, the trial court viewed the
videotape, and considered appellant’s conflicting explanations regarding why she bagged
the items and left the store without paying.
The reconciliation of the conflicting testimony “is within the fact-finder’s exclusive
province.” See Wyatt, 23 S.W.3d at 30. In weighing the credibility of the two accounts
6
and reconciling the inconsistencies in the testimony, the trial court was not obligated to
believe appellant’s version of events. See Anderson, 322 S.W.3d at 405 (“The fact-
finder is the exclusive judge of the credibility of witnesses and of the weight to be given
to their testimony”). We conclude that the cumulative force of the evidence is sufficient
to lead a rational trier of fact to believe appellant possessed the requisite intent to commit
theft. See Guevara, 152 S.W.3d at 49.
III. CONCLUSION
The trial court’s judgment is affirmed.
GREGORY T. PERKES
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
23rd day of July, 2015.
7