Opinion
No. 01-06-00806-CR
Opinion issued December 6, 2007. DO NOT PUBLISH. See TEX. R. APP. P. 47.2(b).
On Appeal from the County Court at Law No. 1 Brazoria County, Texas, Trial Court Cause No. 145377.
Panel consists of Justices, TAFT, HANKS, and HIGLEY.
MEMORANDUM OPINION
Appellant, Angela Renee Chenevert, pleaded not guilty to the Class B misdemeanor offense of theft. See TEX. PEN. CODE ANN. § 31.03(e)(2)(A)(i) (Vernon Supp. 2006). A jury found appellant guilty, and the trial court assessed punishment at 30 days in jail, suspended for nine months' community supervision and a $50 fine. We conclude that the evidence is legally insufficient to support appellant's conviction for theft. We reverse and render a judgment of acquittal.
Facts
In August 2006, appellant went shopping at a Kohl's Department Store with Dianndrea Telsey. Appellant was a passenger in Telsey's car. The two shopped for over an hour, each carrying a large, black purse. Appellant also carried throughout the store a Styrofoam cup and a plastic bag. Catching the attention of loss-prevention personnel early in their shopping excursion because their large black purses raised suspicion, appellant and Telsey were followed with security cameras as they meandered throughout the store. Although there are times when appellant is not visible on the videotape created from the security cameras, her absences are sporadic and brief. Appellant and Telsey sometimes browsed the store together and other times separated. It is undisputed that Telsey attempted to steal some items. Security cameras recorded her tearing tags from the items and placing them in her bag at a time when appellant was not with her. The videotape reveals no suspicious behavior from appellant, however. After shopping for over an hour, appellant and Telsey went to customer service to "check out." Telsey went to the restroom, while appellant completed her purchase and exchange. Once her transaction was completed, appellant went to the restroom, taking her purse, but leaving her purchase and Styrofoam cup on the counter. When she returned, appellant took her items from the counter and left the store. Telsey was still completing her transaction when appellant left. It is undisputed that no one saw appellant conceal any items while in the store, and that no effort was made to stop appellant prior to her leaving. Telsey was, however, detained in the foyer and found to have stolen merchandise. After waiting some time at the car, appellant returned to the store, apparently looking for Telsey, whom appellant was unaware had been detained. Appellant made a couple of trips between the car and the store until she was detained by the Brazoria County Police. After obtaining consent to search the car, the police discovered a plastic bag in the glove compartment containing two pair of jeans sold exclusively at the Kohl's chain of stores. When appellant could not produce a receipt for the jeans, she was arrested for stealing them.Legal Sufficiency of the Evidence
A. Standard of Review
When evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Evans v. State, 202 S.W.3d 158, 161 (Tex.Crim.App. 2006); Drichas v. State, 175 S.W.3d 795, 798 (Tex.Crim.App. 2005). The standard is the same for both direct and circumstantial evidence cases. King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995). We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, because this was the function of the trier of fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999); Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). Instead, our duty is to determine whether both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict. Adelman, 828 S.W.2d at 422. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843.B. Governing Law
A person commits the offense of theft if she unlawfully appropriates property with the intent to deprive the owner of the property. TEX. PEN. CODE ANN. § 31.03(a) (Vernon Supp. 2006). "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). The indictment alleged that appellant appropriated the property by "acquiring or other [sic] exercising control over" it.C. Analysis
Viewing the evidence in the light most favorable to the verdict, a rational trier of fact could not have found beyond a reasonable doubt that appellant appropriated the jeans found in the glove box of Telsey's car. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Drichas, 175 S.W.3d at 798. The State contends that it proved that appellant committed theft as alleged in the indictment by circumstantial evidence. "Circumstantial evidence is `direct proof of a secondary fact which, by logical inference, demonstrates the ultimate fact to be proven.'" Cowan v. State, 840 S.W.2d 435, 438 n. 10 (Tex.Crim.App. 1992) (quoting Taylor v. State, 684 S.W.2d 682, 684 (Tex.Crim.App. 1984)). BarJohn Coleman, the loss-prevention supervisor at Kohl's, testified that he watched appellant and Telsey while they browsed throughout the store. Coleman did not witness any suspicious behavior by appellant. However, once Coleman saw Telsey place items in her bag, his focus remained primarily on Telsey. Coleman testified that the jeans that appellant was charged with stealing could have been stolen from any Kohl's on any day. Coleman never saw appellant or Telsey with any jeans. Crystal Haury, the district loss-prevention manager for Kohl's, testified that she was in this particular store for training when appellant and Telsey raised suspicion. She, along with Coleman, kept a continuous eye on them. Haury did not notice any suspicious behavior from appellant. After the Brazoria County Police had searched Telsey's car, Haury identified "two pairs of little girl's Candie's bottoms, jeans" which were found in the glove compartment. Haury explained that the jeans were sold exclusively at Kohl's and testified that they had a Kohl's "ticket" on them with a unique UPC and bar code. She clarified that those jeans were sold exclusively by Kohl's company, not exclusively by that particular Kohl's store. Id. Haury testified that she could not say when the jeans had been stolen, although Kohl's keeps a "very detailed inventory of its merchandise in the store." Maury explained that, if two pair of pants went missing on a particular day, she would be able to find that out. However, no effort was made to determine if jeans matching those that appellant was arrested for stealing went missing that day from that particular store. The State's case is best summed up through its closing argument:[I]s it reasonable that this Defendant just hopped in the car where there was stolen merchandise, where the other person with them never made it to that car? How did that stolen merchandise get there? Is it just a really unfortunate coincidence that this Defendant hopped into that automobile? I mean, really unfortunate from — that those pair of pants, Candie's, who have exclusive rights with Kohl's, exclusive, how did they end up there? Okay.
. . .
We don't actually see this woman conceal anything, and all we do see is the other woman tearing tickets — the tags, off the other stuff; but I'm going to ask you to look at that video and say — look at that quality. Are there times that the tracking is — I can't make out what's going on? Okay. Are there times that neither one are on the video camera itself? Okay. And secondly — excuse me, thirdly, BarJohn Coleman's testimony himself. He was keyed on the other lady. There were other times that she was completely off the screen. We don't know where she was. Okay. Look at that. Think about that. Okay. That's evidence.
Now, you're going to see suspicious behavior. You're going to see people standing behind fixtures, behind racks. People are in the way. We've got an unclear quality. But what we do know is that this woman right here walked out to her car and put some Candie's jeans in the glove box. Where was she sitting in that car? In the passenger seat. Where was it found? In the glove box, in front of the passenger seat. How long did she sit in that car? How long did — you can watch the video. You can take a look. Were those windows tinted? They were. I don't know if y'all noticed, but those were tinted windows.
And you know what else we didn't see? We didn't see her exit the very first time. We didn't see her exit the very first time. . . . Remember the suspicious black purse? We had two people testify about that suspicious black purse. How about this? How about the suspicious other bags from other stores carried in there? . . . Remember, thieves don't commit crimes in front of cameras.(Emphasis added). The State contends on appeal that the following evidence supports the verdict: (1) appellant was carrying a large, black bag, as was Telsey, who was caught shoplifting; (2) appellant left the store before Telsey had finished her transaction and did not search the store when she returned to find Telsey, but rather waited in the foyer before returning to the car; (3) appellant had access to Telsey's car and, therefore, access to the glove compartment where the jeans were found; (4) the jeans were found in the glove compartment of a car in the parking lot of that particular Kohl's and, therefore, were more than likely stolen from that Kohl's; and (5) appellant was the only one with access to the car during the time that Telsey was detained. This evidence fails to support an inference that appellant committed theft. To warrant an inference of guilt from the circumstance of possession, the possession must be personal, recent, unexplained, and involve a distinct and conscious assertion of right to the property. Sweeny v. State, 925 S.W.2d 268, 270 (Tex.App.-Corpus Christi 1996, no pet.) (citing Sutherlin v. State, 682 S.W.2d 546, 549 (Tex.Crim.App. 1984)). There is no evidence that appellant consciously asserted any right to the jeans concealed in Telsey's glove compartment. See id. Further, although appellant had access to the jeans via her access to the interior of Telsey's car, access to property alone cannot support a conviction. See Thomas v. State, 915 S.W.2d 597, 599 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd). Most importantly, there is no evidence that the jeans were unlawfully appropriated by anyone, much less by appellant. No direct evidence established that appellant acquired or exercised control over the jeans. Further, no rational fact-finder could infer from the circumstantial evidence presented at trial that appellant exercised control over them. Neither appellant nor Telsey was ever seen with the jeans, and there is no evidence that the jeans were missing from this Kohl's inventory. The jeans could have been purchased or stolen at any time from any Kohl's. Viewing the evidence in the light most favorable to the verdict, we hold that no rational trier of fact could have found that appellant unlawfully appropriated the jeans identified in the indictment. See Johnson, 23 S.W.3d at 7. Thus, the evidence was legally insufficient to support the conviction for theft.