Opinion
No. 05-10-01135-CR
02-09-2012
VANESSA RENEE HUFF, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion Filed February 9, 2012.
On Appeal from the County Court at Law No. 3
Collin County, Texas
Trial Court Cause No. 005-88109-09
OPINION
Before Justices Lang, Murphy, and Myers
Opinion By Justice Myers
Appellant, Vanessa Renee Huff, was convicted by a jury of theft of property valued at $50 or more but less than $500, and was sentenced by the trial court to 120 days in jail, probated for fifteen months. In three issues, appellant argues the trial court violated her constitutional right of confrontation, improperly allowed the admission of lay opinion testimony, and that the evidence is factually insufficient to support the verdict. We affirm.
Background and Procedural History
On the afternoon of July 29, 2009, Destiny Johnson was working as a cashier at register fifteen at a Walmart store located at Spring Creek and Highway 75 in Plano, Collin County, Texas. At approximately 1:30 p.m., appellant selected a shopping cart and entered the store. According to still photographs taken from an in-store surveillance camera, appellant was not carrying any items except for a purse or handbag, and her shopping cart was empty. Appellant walked around the store, putting groceries and various other items in the cart. At approximately 1:40 p.m., she checked out at Johnson's register. Appellant removed the items from her cart and put them on the conveyor belt at the register to be scanned, except for a steam vacuum cleaner, which she left in the cart. Johnson asked appellant about the vacuum cleaner, which was in a box, and appellant said she was taking the vacuum cleaner to customer service "for an even exchange." Appellant pointed to the customer service area as she spoke. Video footage from another in-store surveillance camera shows appellant pointing towards the customer service area, with both women looking in that direction. Johnson testified that she did not scan the vacuum cleaner because appellant led her to believe she had already purchased it. Appellant paid for the purchases with a gift card. According to Walmart's record of the transaction, her total purchase was $26.76. The price of the steam vacuum cleaner was $188.92.
Troy Rowe, the store's "asset protection coordinator," testified that all Walmart stores, including the one in this case, had "CCTV" video surveillance systems. The video footage from the surveillance cameras, which were located throughout the store, was not continuously monitored, but it was saved to a digital video recorder that could be reviewed in the event of any suspicious activity. Rowe testified that State's exhibit sixteen was the complete in-store video of appellant's "whole trip through our store," including appellant entering and leaving the parking lot, "shopping throughout the store," and going through the checkout line. State's exhibit seventeen was an edited version of the video that excluded "some of the parking lot shots of [appellant] actually pulling into the parking lot and leaving the parking lot." There is no sound on the surveillance video.
Rowe actually testified that the sales total was $26.73, but the written record of the transaction, which was admitted as State's exhibit fifteen, shows that appellant's purchases totaled $26.76.
Video footage from an in-store surveillance camera shows that, after leaving the cash register, appellant pushed the shopping cart to the customer service area. At the customer service area, video from a camera positioned above a nearby "Money Center Express" machine shows that appellant pushed the cart to the customer service desk, set it aside, and then walked over to the machine. She stood in front of the machine for several seconds, looked at a receipt or something in her hand, and then left without using the machine. She remained in the customer service area for only a few seconds and never spoke to anyone there. Still photographs taken from another surveillance camera show appellant leaving the store carrying the vacuum cleaner in her shopping cart, holding up a receipt to the "door greeter."
Rowe testified that the "Money Center Express" looked like an ATM but was actually a machine that processed money orders using a credit card.
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Before appellant left the parking lot, a Walmart employee obtained the license plate number of appellant's car. Plano Police Officer Eric Seed spoke to Troy Rowe, the store's "asset protection coordinator," and obtained a physical description of the suspect and copies of the store receipts and logs "showing the full scale of the items" appellant purchased. Seed testified that the receipts and logs showed "that this particular vacuum cleaner had not been purchased in the last week." Later that day, Seed interviewed appellant at her home. The video camera in the patrol cruiser recorded their conversation and was introduced at trial. According to the audio recording, when Seed asked appellant about the vacuum cleaner, he specified that he was talking about a "Bissell Pro Heat Two X Steam Vac" that was priced at $188.92. Appellant produced a receipt dated July 28, 2009, which was the previous day. But Seed testified that this receipt was for a "canister vac," not a steam vacuum cleaner, and that the value of the item was "around $50." Seed checked the "canister" vacuum cleaner's uniform price code and told appellant that was not the vacuum cleaner he was looking for. He asked her if she had another vacuum in the house that she had purchased that day, and she said no.
Appellant eventually went into her home to look further, followed by Seed and another officer who was assisting him. Appellant walked up the stairs to her bedroom, closed the bedroom door, and then, as Seed recalled, "came back out with the Bissel Steam Vac that we were looking for." Seed believed it was the missing steam vacuum cleaner because "[t]he uniform price code matched," and the shipping label on the box "indicated that it had been shipped to 6001 Central Expressway, store 1117, which is the Walmart that [Seen] initially responded to."
Appellant offered conflicting accounts about what had occurred at the check-out register, first telling Seed that she left all her purchases in her cart and Johnson scanned them with her scan gun, and then that she placed all of the items on the conveyor belt but Johnson must have forgotten to "ring up" the steam vacuum cleaner. One of the officers asked appellant why she did not notice that she was not charged for the steam vacuum cleaner, which sold for nearly $200, and appellant said she did not look at her receipt because she paid for the purchase with a gift card. Appellant questioned the accuracy of the receipt produced by Seed, suggesting she did not purchase some of the items that were listed there. Appellant also told Seed that she had gone to the customer service area to try to get a receipt for a television she had previously purchased.
Appellant testified that she did not intend to steal the steam vacuum cleaner, that she thought she paid for it, and she did not learn that she did not pay for it until "the police officer came to my house." She testified that she was distracted at the check-out register because she was talking to other people, she did not look at her receipt, and she did not notice the amount of her purchase because she paid with a gift card. She denied telling Johnson that she was taking the vacuum cleaner to customer service to exchange it and contended instead that she told Johnson she "needed to get my hard copy for my steam cleaner." She said that if she told Seed that she went to customer service for a "hard copy" of a receipt for a television, not a steam vacuum cleaner, it was because she was so surprised by his presence that her "words came out wrong." Appellant acknowledged that Seed asked her about the Bissell steam vacuum cleaner, but she contended that, at the time, "none of that registered to me because I was so surprised and stunted [sic] that he was actually asking me about that item." As for why she did not talk to anyone at customer service, appellant explained that when she got to the customer service desk, she noticed that neither of the two employees who normally waited on her, and could get her a "hard copy" of a receipt, were on duty that day, so she "decided to go ahead and leave." Appellant also testified that she was in a hurry to return home and finish cleaning the carpets before the arrival of her fiancé, Tim, who works as a truck driver. In addition, appellant noted that her twenty-two year old daughter, who has the mental capacity of a five or six year old child and suffers from cerebral palsy, suffered a seizure on the night before the visit to the Walmart.
Troy Rowe testified that, as part of his job as an "asset protection coordinator," he received on-the-job training in the area of "asset protection," and had been an asset protection associate whose job it was to walk the sales floor to observe shoplifters. On the afternoon of July 29, 2009, Rowe was "walking the sales floor" when he was alerted to a possible shoplifter by Johnson and several other associates that worked at the front of the store. After appellant left the store, Rowe went to the office and reviewed the video footage from the in-store surveillance cameras. He found that appellant matched the description provided by the associates, and then contacted the police. Regarding the in-store surveillance video, Rowe testified in part as follows:
Q. [PROSECUTOR:] So she walks in, selects a shopping cart, talks to the greeter for a minute or two, then what does she do?Rowe was also asked whether he believed appellant "appropriated" the vacuum cleaner:
A. [ROWE:] She immediately walks down--our general merchandise which is the main alley on the side opposite the grocery.
Q. Right.
A. And procedures [sic] towards our housewares department. She stops along the way where she picks up a small white trash can, and then she proceeds directly to where the steam vacs were located.
Q. Okay. So she proceeds to where the steam vacs are located, and do you see all that on video?
A. No, sir. We actually do not have the steam vacs on camera exactly.
Q. Okay. So there are some blind spots on your video system?
A. Correct.
Q. Okay. So you see her walk on over to where the steam vacs are and she disappears for a minute?
A. Yes. We actually have video of her going into that exact isle [sic] where the steam vacs are located without anything but the white trash can in her possession.
Q. Okay. Do you see her when she comes out?
A. Yes.
Q. And what does she have when she comes out?
A. Well, she comes out of the office at the end of that isle [sic]. She has the steam vac in question and the white trash can.
Q. [PROSECUTOR:] Okay. Did she appropriate the steam vac?
A. [ROWE:] Yes.
Q. Did [appellant] exercise control over it when she selected it from the shelf and put it in her basket?
A. Yes.
Q. And did she-did it appear that she was doing so with intent to do so?
A. It appeared so. As she went to the isle [sic] she did appear to be looking around and watching out for anybody who could be possible-
[DEFENSE COUNSEL:] Objection, Judge, that calls for conclusion and speculation.
THE COURT: Overruled. You may complete your answer.
Rowe did not finish his answer. The prosecutor instead asked him if he could see appellant as she entered the aisle where the steam vacuum cleaners were located, and if so, "what her body language" was. Rowe answered "yes," and the prosecutor then asked him to interpret appellant's "body language." Rowe testified that "he interpreted [appellant's] body language to be on a mission and looking, or appearing to be aware of her surroundings as to who is around her." Rowe also testified that, in his experience, potential shoplifters often look at the people around them in an attempt to identify asset protection employees, instead of looking at merchandise. Later, toward the end of his direct testimony, Rowe was asked if he believed, based on his investigation, appellant "had any intent to steal" the steam vacuum cleaner. He answered 'yes" and gave the following reason for his opinion:
The opinion is based on actions the subject exhibited inside the store, facts given to me by other associates in the store, [appellant's] statement of telling me that she had spoken with the subject who said that she was going to take the steam vac to the service desk and that she never took it there. And it's just based on general actions that he [sic] had while she was in the store.
On cross-examination, appellant asked Rowe if his experience as an asset protection associate and coordinator tended to make him more suspicious of activity "that may be perfectly normal," and Rowe admitted it had. Appellant also challenged Rowe's interpretation of her behavior as she entered the steam vacuum aisle, suggesting an alternative interpretation of her actions:
Q. [DEFENSE COUNSEL:] Okay. Now, Mr. Rowe, you were talking about she was leaving the isle [sic] and she appears to be looking around; is that correct?
A. [ROWE:] Yes, sir.
Q. That she's looking at other customers?
A. Yes, sir.
Q. Isn't there a phenomenon going on now concerning go [sic] to Walmart and watching the other customers, what do they call that? Have you heard about that?
A. I have not heard about this, sir.
Q. In fact, people are taking pictures of Walmart customers and putting them on my book [sic], my face [sic], or Facebook or You Tube or whatever, aren't they?
A. I--
Q. You don't know that?
A. No, I haven't heard about this.
Q. Okay. Called Walmart viewers or something like that, people checking out what other customers are doing. Checking out the different types of people that go into Walmart, have you not heard about this?
A. I have not heard about this.
Q. All right. Thank you. I have no further questions.
The jury convicted appellant of theft of property valued at $50 dollars or more but less than $500. The trial court sentenced her to 120 days in jail, probated for fifteen months. This appeal followed.
Discussion
Right to Confrontation
In her first point of error, appellant argues her constitutional right of confrontation was violated because the trial court limited her cross-examination of Rowe.
During the trial, after Rowe finished testifying and left the courtroom subject to recall by appellant, appellant asked the court for permission to recall Rowe, publish State's exhibits sixteen and seventeen--the in-store surveillance video--to the jury, and then cross-examine Rowe using the surveillance video. The trial court told the defense that it could recall Rowe and cross-examine him further, but the court would not allow the defense to publish the surveillance video. Appellant objected that the trial court was not giving her an opportunity to properly cross-examine Rowe, and that the court's ruling violated her constitutional right to confront witnesses. Appellant elected not to recall Rowe. Appellant did not make an offer of proof or a formal bill of exceptions regarding what questions she would have asked Rowe or what she expected to establish with the testimony. A trial court's decision to limit cross-examination is reviewed for an abuse of discretion. Carroll v. State, 916 S.W.2d 494, 499 (Tex. Crim. App. 1996); Walker v. State, 300 S.W.3d 836, 843-45 (Tex. App.-Fort Worth 2009, pet. ref'd). To preserve a complaint that the court erroneously excluded evidence, the complaining party must bring forward a record indicating the nature of the evidence. See Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App. 1999). Unless the excluded evidence is apparent from the context of the record, the offering party must present a timely offer of proof or formal bill of exception. Tex. R. Evid. 103(a); Guidry, 9 S.W.3d at 153. Without a showing of what such evidence would have been, or an offer of a statement concerning what the excluded evidence would show, nothing is presented for review. Guidry, 9 S.W.3d at 153 . In this case, because the record contains no offer of proof or bill of exceptions identifying the substance of the excluded cross-examination testimony, the complaint presents nothing for our review. Accordingly, appellant's first point is overruled.
Lay Opinion Testimony
In her second point of error, appellant argues the trial court erred by "allowing lay opinion testimony [from Rowe] that appellant knowingly and intentionally entered Walmart with the intent to commit theft." The State responds that appellant failed to preserve error, that the trial court did not abuse its discretion under rule 701, and that the error, if any, was harmless.
As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion. Tex. R. App. P. 33.1. "An error [if any] in the admission of evidence is cured where the same evidence comes in elsewhere without objection." Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004); see also Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) ("Our rule . . . is that overruling an objection to evidence will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling."). This rule applies whether the other evidence was introduced by the defendant or the State. Leday, 983 S.W.2d at 718.
In this case, the trial court overruled appellant's objection and told Rowe he could complete his answer. The witness, however, did not complete his answer, and instead responded to questions from the prosecutor regarding appellant's "body language" on the security video. Later, toward the end of his direct testimony, Rowe testified without objection that he believed appellant intended to steal the vacuum cleaner. Therefore, the error, if any, in admitting the complained-of testimony was harmless. Appellant's third point is overruled.
Sufficiency
In her third point of error, appellant argues the evidence is factually insufficient to prove beyond a reasonable doubt that she had the intent to commit theft.
In Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (plurality op.), the court of criminal appeals concluded the Jackson v. Virginia standard is the only standard a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. Brooks, 323 S.W.3d at 894-95. Under that standard, we examine the evidence in the light most favorable to the judgment and determine whether a 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 (1979); Brooks, 323 S.W.3d at 899-900; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony because the jury is the sole judge of those matters. Brooks, 323 S.W.3d at 899-900; Laster v. State, 275 S.W.3d 512, 517-18 (Tex. Crim. App. 2009).
A person commits theft if she "unlawfully appropriates property with intent to deprive the owner of property." Tex. Penal Code Ann. § 31.03(a) (West 2011). Intent may be inferred from circumstantial evidence such as acts, words, and the conduct of the defendant. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). Attempts to conceal incriminating evidence, inconsistent statements, and implausible explanations to the police are probative of wrongful conduct and are also circumstances of guilt. Id. A defendant's conduct in lying to police officers shows a consciousness of guilt and may be considered as circumstantial evidence of guilt. King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000).
Reviewing the evidence under the appropriate standard, a rational trier of fact could have found beyond a reasonable doubt that appellant appropriated the steam vacuum cleaner from the Walmart store with the intent to deprive Walmart of the property. As the sole judge of a witness's credibility and the weight of the testimony, the jury was free to believe or disbelieve all or any part of appellant's testimony. See Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). The jury was also free to resolve conflicts in testimony, and having done so, the jury could rationally find all of the essential elements of theft beyond a reasonable doubt. Thus, the evidence is sufficient to support the jury's verdict. We overrule appellant's third point of error. We affirm the trial court's judgment.
LANA MYERS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
101135F.U05