No. 05-04-00935-CR
Opinion issued September 23, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Criminal Court No. 11, Dallas County, Texas, Trial Court Cause No. MB02-26834-N. Affirmed.
Before Justices MORRIS, WRIGHT, and RICHTER.
Opinion By Justice MORRIS.
Convicted of theft, Maria E. Sanchez now complains on appeal that the evidence against her is insufficient. She further complains she received ineffective assistance of counsel. Concluding appellant's complaints are without merit, we affirm the trial court's judgment.
Factual Background
One afternoon, appellant purchased a vacuum cleaner from a now-closed Kmart store. Approximately two hours after she purchased the original vacuum cleaner, she returned to the store, picked up a second one in the store, and brought it to the store's service desk with her original receipt. A store clerk gave her a refund. Former employees of the Kmart store testified that they believed appellant was trying to defraud the store into giving her a refund for a vacuum cleaner she had not purchased. Appellant maintained the refund was a misunderstanding based on her inability to communicate clearly in English. The front manager of the store testified that she became suspicious when she noticed appellant looking at her. Appellant was passing the cash registers and heading to the store's service desk with the vacuum cleaner. She had walked from the back of the store to the front, which was unusual because the service desk for refunds is in the front of the store. The manager suspected appellant might be trying to shoplift the vacuum cleaner, so she contacted the store's loss prevention officer and asked him to review the videotape of appellant's actions in the store. On the videotape, the front manager and the loss prevention officer saw appellant walk into the store without a vacuum cleaner. Then they saw her get a shopping cart and push the cart to the back of the store, where she retrieved a vacuum cleaner in a box. The loss prevention officer testified that he watched appellant on the video screen show the clerk her receipt, pocket the refunded money, and walk out the store's front door into the vestibule. In the store's vestibule, the loss prevention officer confronted appellant. She did not act surprised. She walked with him back into the store. At the front doors, the officer asked for the refunded money, and appellant took it out of her pocket and returned it to him. When they got to the loss prevention office, the officer requested appellant's identifying information. She claimed she did not speak English. The officer summoned an interpreter from the store, who remained long enough for the officer to get appellant's information. After the interpreter left, appellant asked the loss prevention officer and a police officer whether she could go if her husband brought the original vacuum cleaner back to the store. She made the request in English. The police officer present at the time confirmed that appellant had made the request. According to the police officer, the request was "clearly understandable." The loss prevention officer testified that when he viewed the videotape of appellant's actions after she had been arrested, he noticed that when appellant took the second vacuum cleaner off the shelf, she ripped open its box before returning it. The officer explained that he believed appellant opened the box to make it look like she had actually bought the vacuum cleaner earlier and returned it after inspecting it. The loss prevention officer had been unable to locate the videotape from the date of appellant's offense because after Kmart declared bankruptcy, the store was closed. Although he had searched, he had not been able to discover where the old tapes had been sent. The service desk clerk also testified for the State. She recalled getting a call from the loss prevention officer telling her to stall appellant's refund while he reviewed the store's videotapes. When appellant got to the counter, she handed the clerk her receipt and said in English that she needed a refund. The clerk noticed the box was open. When she asked if there was anything wrong with the vacuum cleaner, appellant responded that there was nothing wrong with it, but that her husband said it cost too much money and she needed her money back. The clerk testified that she had no problem speaking with appellant. In her opinion, appellant was "speaking perfect English." She testified that if she had a problem talking with appellant in English, she would have asked another Kmart employee who was working across from her to translate. The front manager, too, stated that there were Spanish-speaking cashiers at the front of the store when appellant returned the vacuum cleaner. After the service desk clerk gave appellant the refund, she watched the loss prevention officer stop appellant in the store's vestibule. In the clerk's opinion, appellant was calm when she was approached, "like she expected it." The clerk testified that there was no doubt in her mind that appellant's intent was to get a refund. Appellant's husband testified for the defense. He claimed that appellant was unable to converse in English until approximately two months before trial, when she began taking classes to learn the language. He stated that he and their children communicate with appellant in Spanish only. According to appellant's husband, she called him on the day of the offense after she bought the first vacuum cleaner and asked if she should buy a warranty. He told her it was a good idea. He told her to return to the store and purchase the warranty. Through an interpreter, appellant also testified in her defense. She claimed that she spoke only a "few words" of English. She claimed that she was now taking classes in English, two years after the incident, because of what had happened to her. Appellant also claimed, like her husband, that she had called him after the initial purchase to see if he thought she should pay an additional fifteen dollars to purchase a warranty for the vacuum cleaner. Because her husband told her to purchase the warranty, appellant returned to the store. According to appellant, she had purchased the original vacuum cleaner from a Spanish-speaking woman named Araceli. Araceli had told her if she wanted to later buy the warranty, all she would need would be the receipt. Appellant claimed she could not locate Araceli when she returned to the store, so she picked up another box. She claimed the box was already open on the shelf. She also claimed she approached the service desk because she could not find Araceli at the cash register area. According to appellant, there were "no Hispanics" at the front cash registers. Appellant testified that at the front of the store, she asked if they could get someone to speak Spanish to her. According to her version of events, she waited thirty minutes to speak with someone who could talk to her in Spanish, then she used a few English words she knew. Appellant claimed she said "something about 'I'm return,'" but she was trying to say that she had come to purchase a warranty. According to appellant, when the clerk handed her a refund, she tried to explain what she actually wanted and "[a]t that moment" was arrested. She claimed she tried to explain to the loss prevention officer that she did not want to take the refund. She stated that she never pocketed the money. According to her, she did not give the money to the officer until she was in the loss prevention office. Appellant claimed she tried to explain through the translator who had been brought to the loss prevention office that all she wanted to do was purchase a warranty, "but they wouldn't listen to that at all." She denied asking the officers in English whether she could be released if her husband brought the original vacuum cleaner to the store. She claimed, instead, that she told the police officer "that I didn't want anything to do with Kmart that if my husband would bring back the vacuum would they give him back the money." Discussion
In her first two points of error, appellant complains the evidence against her was factually insufficient and the evidence in her case "did not exclude every reasonable hypothesis except that of the guilt of the Appellant." Initially, we address appellant's point of error two. Without referencing a legal or factual sufficiency complaint, appellant cites overruled law for her contention that a "conviction based on circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of the guilt of the defendant." The Texas Court of Criminal Appeals abandoned the "outstanding reasonable hypothesis" construct for legal sufficiency analysis in Geesa v. State, 820 S.W.2d 154, 161 (Tex.Crim.App. 1991). Because appellant's point of error relies solely on this outdated method of evaluating the legal sufficiency of the evidence, we overrule it and proceed to appellant's factual insufficiency claim. In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). Evidence can be factually insufficient if it is too weak to support the finding of guilt beyond a reasonable doubt, or if contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484-85. We defer to the fact finder as the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). Here, appellant and her husband presented one version of events, and the State's witnesses presented another. The jury as fact finder clearly found the State's witnesses more credible. Deferring to the jury's role as judge of witness credibility, and viewing all the evidence under the applicable standard, we conclude the evidence against appellant is factually sufficient. We overrule her first point of error. In her third point of error, appellant contends she was denied her right to effective assistance of counsel. She specifically complains her attorney failed to object when the State elicited testimony from its witnesses about whether they thought appellant was guilty. The attorney did not object when the Kmart manager responded to the question, "Is there any doubt in your mind that the Defendant came in there with nothing and tried to exchange a vacuum cleaner that wasn't hers to get the money," with the comment, "I saw the film when she came in. It showed she didn't have anything in her hand." The attorney also did not object when the loss prevention officer testified that seeing the video replay of appellant grabbing a cart and moving to the back of the store was "confirmation" to him that she intended to get a refund for a vacuum cleaner she had not purchased. Similarly, the attorney did not object to testimony by the officer that a person might rip open a box in a store "[t]o give the impression that it had been bought earlier or that it was old and that it needed to be refunded for whatever reason." The attorney did not object when the officer testified he believed appellant intentionally appropriated the refunded money and stated there was no doubt in his mind that appellant committed the offense to get the money. Additionally, the attorney did not object when the service desk clerk testified there was no doubt in her mind that appellant intended to get the money. We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). See Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999). To prevail on her claim, appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for counsel's errors, the result would have been different. See Strickland, 466 U.S. at 687-88, 694. Our review of counsel's performance is highly deferential, and we presume counsel provided reasonable assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). We must look to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel. See Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). When the record is silent about the motivation of counsel's tactical decisions, the appellant usually cannot overcome the strong presumption that counsel acted reasonably. Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001). We commonly assume a strategic motive if any can be imagined and find counsel's performance deficient only if the conduct was so outrageous that no competent attorney would have engaged in it. Andrews v. State, 159 S.W.3d 98, 101 (Tex.Crim.App. 2005). Here, the record contains no explanation of counsel's motive in choosing not to object to the complained-of testimony. But, as the State points out, a possible strategy exists for the decision. The defense position at trial was that the State's witnesses had decided appellant was guilty of theft before she ever got to explain her actual intent in returning to the store. By choosing to allow the State's witnesses to testify about their beliefs, counsel furthered the defense position that the store employees had pre-determined appellant's guilt and were unable to see her side of the story. Appellant has failed to overcome the presumption that her counsel acted reasonably. Accordingly, we overrule her third point of error. We affirm the trial court's judgment.