Opinion
No. 05-08-01501-CR
Opinion Filed November 17, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 382nd Judicial District Court, Rockwall County, Texas, Trial Court Cause No. 2-07-526.
Before Chief Justice WRIGHT and Justices RICHTER and LANG.
OPINION
Following a plea of not guilty, appellant Heather Correne Talley was convicted by a jury of theft of property in the amount of $1500 or more, but less than $20,000. Appellant pleaded not true to two enhancement paragraphs, and the jury found those enhancement paragraphs true. Punishment was assessed by the jury at fifteen years' confinement and a fine of $10,000. In two issues on appeal, appellant contends (1) the evidence is legally and factually insufficient to support the conviction and (2) the trial court erred in admitting evidence of an extraneous offense. For the reasons below, we decide appellant's two issues against her. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
Daniel Alexander testified at trial that at approximately 6:20 p.m. on July 3, 2007, he was working as a loss prevention supervisor for the Kohl's department store "right off of I-30" in Rockwall, Texas. Alexander testified that while "walking the floor" to look for shoplifting behavior, he observed appellant in the jewelry section of the store with an individual later identified as Jacob Zander. According to Alexander, appellant and Zander exhibited behavior typical of shoplifters. Specifically, Alexander testified, the two were (1) using a store-provided "buggy" they had lined with a store-provided mesh shopping bag, which is conducive to quick removal of merchandise from a store without paying, and (2) selecting multiple items without paying attention to the price of the items. Alexander continued to observe appellant and Zander from the floor for approximately eight to nine minutes, then left the floor and observed them "on closed circuit television" from the store's loss prevention office. Two videotapes containing recordings by the stores's video monitoring system on the date of the offense were admitted into evidence and published to the jury. Those recordings showed appellant and Zander entered the store through the south doors at 6:06 p.m. Appellant exited through the store's north doors at 6:47 p.m., got into a red truck, and drove outside the range of the store's video camera. During that time, Zander, still inside the store, removed the mesh bag of merchandise from the buggy and walked toward the south doors. At 6:51 p.m., appellant parked the red truck near the store's north doors and re-entered the store through those doors. Zander exited the store through the south doors at 6:52 p.m., carrying the mesh bag of merchandise and passing all points of sale without paying for the merchandise. Alexander testified he had called police prior to the time Zander exited the store, and a police officer waiting outside the south doors attempted to stop Zander after he exited. Zander dropped the bag of merchandise in the street and ran to a nearby business, where he was apprehended by Alexander and police. A Kohl's employee picked up the bag of merchandise. Alexander testified he returned to the store after Zander was apprehended and "took an actual inventory of the items and took photos of the items" in the mesh bag dropped by Zander. The mesh bag contained the following items: nine bottles of fragrance, twelve gold toe rings, four gold anklets, one gold chain, two pairs of shoes, four pairs of pants, five bras, four packages of panties, one pair of sunglasses, seven shirts, one belt, one package of socks, and two packages of boxers. Alexander stated he prepared two "evidence logs." One log listed all items in the mesh bag. The other log listed only items from that bag that had been selected by appellant, as determined from Alexander's earlier surveillance. The log that listed only items selected by appellant showed appellant selected multiple quantities of several items, including the twelve gold toe rings, the four gold ankle bracelets, and three bottles of a particular fragrance. Alexander testified each log included the "suggested retail price" from the store tag of each item listed, and the sum of those prices. Over objection by appellant, both logs were admitted into evidence. According to Alexander, based on the logs, the total value of all items in the mesh bag was $2127.57, and the total value of the items from that bag selected by appellant was $1561. Officer Robert McIntire of the Rockwall Police Department testified he arrived at the Kohl's store where the events at issue took place at approximately 6:45 p.m. on July 3, 2007, in response to a call. McIntire testified he parked at the south end of the store, exited his squad car, and waited near the south doors. A few minutes later, Zander exited through the south doors, and McIntire yelled to get his attention. According to McIntire, Zander threw down a blue mesh Kohl's bag and "took off running." McIntire, Alexander, and another police officer chased Zander on foot to a service road. McIntire testified he fell in some mud and discontinued the chase. While Alexander and the other police officer pursued Zander, McIntire went back to the store to wait "for the other person to come out." McIntire stated he found appellant about five to seven minutes later near the jewelry counter in the store. McIntire asked appellant to speak with him outside the store and read her "the Miranda warning." According to McIntire, appellant told him she and Zander were shopping and she had gone out to the truck to get $300 to pay for merchandise. McIntire testified appellant said she could not find the $300 and could not find Zander when she returned to the store. Appellant was taken into custody by police. Zander testified he pleaded guilty to "theft of over $1500, less than $20,000" based on the events giving rise to this case. He was placed on deferred adjudication, but subsequently violated the conditions of his probation and was sentenced to fifteen months' confinement. Zander testified he intended to steal merchandise when he entered the store on the date of the offense, but appellant was not aware of his intention. He stated he told appellant to go get his wallet out of the truck. According to Zander, he planned to run out of the store while appellant was outside looking for his wallet in the truck. He testified appellant "messed the whole thing up" when she re-entered the store to look at jewelry. At the conclusion of appellant's case-in-chief, the State requested the trial court hold a hearing outside the presence of the jury to determine the admissibility of evidence regarding an incident of theft subsequent to the events at issue. At that hearing, Shana Douglas testified that while employed as a loss prevention officer for Target on January 3, 2008, she observed appellant at the Target store on Haskell in Dallas at approximately 4 p.m. According to Douglas, she saw appellant put five "DVD box sets" into her purse. Then, appellant entered a fitting room. Douglas testified it was later learned appellant unwrapped two of the box sets at that time. Appellant came out of the fitting room, removed all the box sets from her purse and placed them into a shopping cart, then put the two unwrapped box sets back into her purse. Douglas stated appellant went to the food court and sat down "for a second," then left her purse on a bench in the food court and exited the store. Appellant spoke to another female outside the store, then returned to the store, placed her purse into a shopping cart, and walked around the store. Douglas testified appellant "met back up with the other female inside the store." The other female removed her jacket, placed the purse containing the box sets on her shoulder, and put the jacket back on, concealing the purse underneath her jacket. Then, the other female left the store without paying for the box sets concealed in the purse. Douglas testified appellant put the three wrapped box sets "back where she found them" in the store's electronics department, then went into the store's restroom, where she remained for approximately twenty minutes. When appellant came out of the restroom, she was arrested by an off-duty Dallas police officer contacted by Douglas. Appellant objected to Douglas's testimony on the grounds that (1) adequate notice as to that testimony had not been provided and (2) "the prejudice outweighs the probative value." The trial court overruled appellant's objection as to notice. Further, the trial court statedWith regard to the issue of prejudice versus probative, I do find that the similarity is such that although prejudicial, it is outweighed by its probative value, that it will go to the issue of intent, plan, and lack of mistake. So I'm going to allow [Douglas] to testify.Douglas testified before the jury as to the same facts to which she had testified during the hearing. Following Douglas's testimony, the trial court stated to the jury Ladies and gentlemen, let me give you an instruction about the testimony that you heard. You are instructed that if there is any testimony before you in this case regarding the defendant's having committed offenses other than the offense alleged against her in the indictment in this case, you cannot consider said testimony for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offenses, if any were committed, and even then, you may only consider the same in determining the intent, knowledge, plan, or absence of mistake of the defendant, if any, in connection with the offense, if any, alleged against her in the indictment in this case and for no other purpose. The charge of the court included law regarding theft and parties to an offense. Further, the charge of the court stated in relevant part:
The State has introduced evidence of an extraneous crime or bad act other than the one charged in the indictment in this case. This evidence was admitted only for the purpose of assisting you, if it does, for the purpose of showing the defendant's intent, plan, knowledge, or absence of mistake, if any. You cannot consider the testimony for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed said act, if any, was committed.Following the jury's finding of guilt and assessment of punishment and the trial court's sentencing of appellant, this appeal was timely filed.
II. SUFFICIENCY OF THE EVIDENCE
In her first issue, appellant contends the evidence is legally and factually insufficient to support her conviction. Specifically, appellant asserts (1) she "was not shown by the evidence to have carried out the last essential element of the offense, not paying for the merchandise, and was not shown to have been a knowing participant or party to the crime" and (2) the evidence did not show the "value" of the property at issue to have been within the range alleged, $1500 to $20,000.A. Standard of Review
In reviewing the legal sufficiency of the evidence, we view all of 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 crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hooper v. State, 214 S.W.3d 9, 14 (Tex. Crim. App. 2007); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). The jury is the sole judge of the witnesses' credibility and the weight to be given their testimony and, therefore, is free to accept or reject any or all evidence presented by either side. See Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). We must give deference to the trier of fact "to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper, 214 S.W.3d at 14. In a factual sufficiency review, we view all the evidence from a neutral perspective. Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). The evidence, though legally sufficient, is factually insufficient if it is so weak that the jury's verdict seems clearly wrong or manifestly unjust or if, considering conflicting evidence, the jury's verdict, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence. See Berry v. State, 233 S.W.3d 847, 854 (Tex. Crim. App. 2007); Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007); Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).B. Applicable Law
A person commits the offense of theft if he "unlawfully appropriates property with intent to deprive the owner of property." Tex. Penal Code Ann. § 31.03(a) (Vernon Supp. 2008). "Appropriate" is defined in relevant part by the Texas Penal Code to mean "to acquire or otherwise exercise control over property other than real property." Id. § 31.01(4)(B). Section 31.03(b) of the penal code provides in relevant part that appropriation of property is unlawful if it is without the owner's effective consent. Id. § 31.03(b). 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. Id. § 7.01 (Vernon 2003). Each party to an offense may be charged with commission of the offense. Id. § 7.01(b). The penal code provides in relevant part that a person is "criminally responsible" for an offense committed by the conduct of another if "acting with 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." Id. § 7.02(a)(2). A person acts with intent with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. Id. § 6.03(a). In determining whether an accused participated as a party, the court may look to events occurring before, during, and after the commission of the offense, and may rely on actions of the defendant that show an understanding and common design to do the prohibited act. Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994). Further, circumstantial evidence may be used to prove party status. Id. For purposes of punishment, an offense of theft under section 31.03 is classified based on the value of the property stolen. See Tex. Penal Code Ann. § 31.03(e). Section 31.08(a) of the penal code defines "value" as "(1) the fair market value of the property or service at the time and place of the offense; or (2) if the fair market value of the property cannot be ascertained, the cost of replacing the property within a reasonable time after the theft." Id. § 31.08(a). "No one method [of proving fair market value] has ever been held to be exclusive." Keeton v. State, 803 S.W.2d 304, 305 (Tex. Crim. App. 1991). "Use of various methods to show fair market value is certainly due to the necessity for flexibility because of the various circumstances of theft that arise." Id. Retail price is one method of proving fair market value. Id.; Robalin v. State, 224 S.W.3d 470, 475 (Tex. App.-Houston [1st Dist.] 2007, no pet.).C. Application of Law to Facts 1. Appellant's Participation as a Party
Appellant contends that "only the act of passing the checkout register, with merchandise, without paying, constituted the essential elements of theft." According to appellant's brief on appeal,[W]ithout completion of the offense in some manner, placing items in a shopping cart, without more, while it does not constitute theft, is as close as [a]ppellant got to participating in the theft Zander committed. Without evidence that [a]ppellant knew Zander would leave the store without paying, the essential elements making her a party to theft are not present.The State responds that the facts in this case are sufficient to show appellant's participation as a party to theft. The record shows appellant and Zander entered the store together and shared a single shopping "buggy," which was lined with a store-provided mesh shopping bag. Appellant was observed placing items into the buggy without looking at the price. Further, the record shows appellant selected multiple quantities of several items, including twelve gold toe rings, four gold ankle bracelets, and three bottles of a particular fragrance. Alexander testified behavior typical of shoplifters includes (1) using a buggy lined with a shopping bag, which is conducive to quick removal of merchandise from a store without paying, and (2) selecting multiple items without paying attention to the price of the items. Video recordings showed appellant exited the store's north doors at 6:47 p.m., drove briefly in a red pickup truck outside the range of the video camera, then parked the truck near the north doors and re-entered the store through those doors at 6:51 p.m. Zander left the store through the south doors at 6:52 p.m. with the mesh bag of merchandise. McIntire testified he had parked his squad car near the south doors at approximately 6:45 p.m. and was waiting outside those doors at the time Zander exited. When appellant was later questioned by McIntire, she said she went out to the truck to get $300 to pay for the merchandise. The $300 was never found. In determining whether an accused participated as a party, the court may look to events occurring before, during, and after the commission of the offense, and may rely on actions of the defendant that show an understanding and common design to do the prohibited act. Ransom, 920 S.W.2d 302. Further, circumstantial evidence may be used to prove party status. Id. In this case, the jury viewed video recordings from the store's surveillance cameras and watched and listened as the witnesses testified. From the evidence presented at trial, a rational jury could have found appellant participated in selecting items to be stolen and placed them in the mesh bag within the buggy for easy removal from the store. Additionally, the jury could have found appellant attempted to assist Zander in fleeing by moving the truck near an entrance as he was preparing to leave the store. Applying the appropriate standards of review, we conclude the evidence is both legally and factually sufficient to support a finding appellant was a party to theft. See Tex. Penal Code Ann. § 7.02(a)(2) (person is "criminally responsible" for offense committed by conduct of another if "acting with 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").
2. Value
According to appellant, the evidence "does not prove any certain likelihood or even possibility that the property could or would sell at its tagged price." Additionally, appellant contends Alexander "was unwilling or unable to testify on value or fair market value beyond saying his employer was responsible for price tag amounts." However, retail price is one method of proving fair market value. See Keeton, 803 S.W.3d at 305; Robalin, 224 S.W.3d at 475. Alexander testified he used the "suggested retail price" taken from the price tag on each item of stolen merchandise to determine the value of that merchandise. According to Alexander, based on those retail prices, the total value of all items in the mesh bag dropped outside the store by Zander was $2127.57, and the total value of the items in that bag selected by appellant was $1561. Appellant does not assert, and the record does not show, any rebuttal evidence was offered regarding the retail prices of the stolen items. Cf. Keeton, 803 S.W.2d at 305 (defendant is free to rebut a store price as evidence of fair market value by showing such retail or sale price was inflated as evidenced by the price of the item at the same kind of store in the same general locale). Accordingly, we conclude the evidence in the record is legally and factually sufficient to support a finding that the value of the property at issue was within the range of $1500 to $20,000. We decide against appellant on her first issue.III. EXTRANEOUS OFFENSE
In her second issue, appellant contends the trial court erred in admitting evidence of an extraneous offense. Specifically, appellant asserts the extraneous offense at issue (1) was not proven beyond a reasonable doubt and (2) "served only to confuse and prejudice the jury and had no substantial probative value on the issue of intent." The State responds appellant's assertions are both contradicted by the record at trial.A. Standard of Review and Applicable Law
We review the trial court's decision to admit or exclude evidence under an abuse of discretion standard. See McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim. App. 2008). As long as the trial court's evidentiary ruling was within the zone of reasonable disagreement, we will not disturb that ruling. See Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show he acted in conformity with that character. Tex. R. Evid. 404(b). However, such evidence may be admissible for other purposes, such as proof of intent or absence of mistake or accident. See id. Relevant evidence may nevertheless be excluded if its probative value is substantially outweighed by danger of unfair prejudice, confusion of the issues, or misleading the jury. Tex. R. Evid. 403. The burden of proof for admission of extraneous offenses is proof beyond a reasonable doubt. Harrell v. State, 884 S.W.2d 154, 159 (Tex. Crim. App. 1994).B. Application of Law to Facts
The record shows Douglas testified that while employed as a loss prevention officer for Target on January 3, 2008, she observed appellant put five "DVD box sets" into her purse. According to Douglas, appellant subsequently removed the box sets from her purse and placed them into a shopping cart, then put two of the sets back into her purse. Appellant set her purse on a bench inside the store and exited the store. She spoke to another female outside the store, then returned to the store, placed her purse into a shopping cart, and walked around the store. Appellant "met back up with the other female inside the store." The other female placed the purse containing the box sets underneath her jacket and left the store without paying for the concealed box sets. Then, appellant went into the store's restroom, where she remained for approximately twenty minutes. When appellant came out of the restroom, she was arrested. According to appellant's brief on appeal,[T]he minimal evidence from [Douglas] does not satisfy the State's burden of proof beyond a reasonable doubt. The proof of the extraneous offense suffers from the same defect as in the present case: there is no proof beyond a reasonable doubt that [a]ppellant intended to steal when it was another person who walked out without paying for the merchandise.However, at trial, appellant objected to Douglas's testimony on the grounds that (1) adequate notice as to that testimony had not been provided and (2) "the prejudice outweighs the probative value." Thus, appellant's contention on appeal does not comport with her trial objections. See Tex. R. App. P. 33.1(a). Moreover, as discussed above, a person commits the offense of theft if he "unlawfully appropriates property with intent to deprive the owner of property." See Tex. Penal Code Ann. § 31.03(a). A person is a party to an offense if "acting with 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." Id. § 7.02(a)(2); see also Ransom, 920 S.W.2d 302 (in determining whether accused participated as party, court may look to events occurring before, during, and after commission of offense, and may rely on actions of defendant that show understanding and common design to do prohibited act). Here, Douglas's testimony shows appellant selected items at Target and concealed those items in her purse. Appellant then met inside the store with another female, who concealed the purse underneath her jacket and left the store without paying for the items. Thus, the evidence at issue is sufficient to allow a jury to find beyond a reasonable doubt appellant was a party to the offense of theft at Target on January 3, 2008. Next, we address appellant's contention that "the prejudicial effect of the evidence completely overwhelmed any true probative value." The record shows the trial court ruled Douglas's testimony admissible as to "the issue of intent, plan, and lack of mistake." Under rule of evidence 403, it is presumed that the probative value of relevant evidence exceeds any danger of unfair prejudice. See Hammer v. State, No. PD-0786-08, 2009 WL 928561, at *8 (Tex. Crim. App. Apr. 8, 2009). In a rule 403 analysis, the trial court must balance (1) the inherent probative force of the proffered evidence along with (2) the proponent's need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006). With respect to the first and second factors above, appellant presented testimony of Zander that appellant had no knowledge of his intent to steal merchandise during their visit to Kohl's. Thus, the "intent" of appellant was made a contested fact, and evidence regarding appellant's intent was therefore necessary. Evidence of the incident at Target was highly probative as to appellant's intent because of the similarities to the facts in this case. The incidents occurred within six months of each other and both took place at department stores. In each instance, appellant (1) selected merchandise that was subsequently taken from the store by another person with whom appellant had interacted and (2) remained in the store after the incident. With respect to the third and fourth factors, the extraneous offense involved only the theft of two DVD box sets. Thus, the evidence at issue was not inflammatory or so extreme as to distract the jury or suggest decision on an improper basis. The trial judge specifically told the jury the extraneous offense could be considered only in "determining the intent, knowledge, plan, or absence of mistake of the defendant, if any, in connection with the offense, if any, alleged against her in the indictment in this case and for no other purpose." Further, a similar statement was included in the charge of the court. As to the fifth factor, appellant does not argue, and the record does not show, the jury had "not been equipped to evaluate the probative force" of the evidence at issue. See id. at 641 ("scientific" evidence might mislead a jury not properly equipped to judge probative force of evidence). Finally, as to the sixth factor, Douglas's testimony comprised only six pages of a trial record of more than 170 pages and was not repetitive. Balancing the Gigliobianco factors as described above, we cannot conclude the trial court abused its discretion by admitting the evidence at issue. See id. at 641-42. We decide against appellant on her second issue.