Opinion
No. 04-08-00646-CR
Delivered and Filed: July 15, 2009. DO NOT PUBLISH.
Appealed from the 186th Judicial District Court, Bexar County, Texas, Trial Court No. 2006-CR-5701, Honorable Maria Teresa Herr, Judge Presiding. Affirmed.
Sitting: KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Flor E. Arriaga was charged with one count of theft from an elderly individual, $500 — $1500, and three counts of debit card abuse. She was found guilty on all counts and was sentenced to two years confinement in state jail, probated, to run concurrently. Additionally, with respect to the theft count, she was fined $15,000. On appeal, Arriaga argues that (1) the evidence is legally and factually insufficient; (2) her right to confrontation was violated pursuant to Crawford v. Washington, 541 U.S. 36 (2004); and (3) the trial court erred in overruling her hearsay objection. We affirm.
Background
The allegations against Arriaga stem from her employment with the complainant, Mary Kelley. In 2005, Kelley was an eighty-year-old woman who, after a surgery in early 2005, needed the help of caregivers. Thus, she hired Domestic Agency to provide caregivers for her. Domestic Agency sent Arriaga to work for Kelley. In October 2005, Arriaga had been working for Kelley for a couple of months when Kelley accused Arriaga of stealing her money by fraudulently using her ATM debit card. Five months later, Kelley died. Arriaga did not stand trial until July 2008, at which time she admitted that she had used Kelley's ATM debit card, but testified that Kelley had given her consent to use the card. Thus, the factual issue to be determined by the jury at trial was whether Kelley had given Arriaga consent to use the ATM debit card.Trial
At trial, the State called six witnesses: Richard Dean Walsh, Cindy McQuarters, Benjamin Paul Watt, Patricia Sandusky, Officer Aaron Pembley, and Detective David Kinney. The defense called only one witness: Arriaga. Richard Dean Walsh, Mary Kelley's son, testified that after his mother's open-heart surgery in January 2005, she was unable to take care of herself and needed a caregiver. The caregivers would make meals for his mother, help her with chores, drive her places, and assist her with purchases. Walsh further testified that his mother mostly paid bills by check and rarely used cash. According to Walsh, when his mother did withdraw cash, she did so from an ATM at a branch of her bank because she did not like to pay the fees associated with using another ATM. Kelley's bank records were admitted in evidence, and her bank statement for October 2005 showed four ATM withdrawals. On October 7, 2005, $200 was withdrawn from a convenience store ATM, which charged Kelley a fee of $1.50. Her bank charged her an additional fee of one dollar. On October 11, 2005, $300 was withdrawn from a convenience store ATM, which charged Kelley a fee of $1.75. Her bank charged her an additional fee of one dollar. On October 12, 2005, $300 was again withdrawn from a convenience store ATM, which charged Kelley a fee of $1.50. Her bank charged her an additional fee of one dollar. Also on October 12, 2005, $150 was withdrawn from the ATM at Kelley's bank branch. Kelley's son, Walsh, was asked at trial whether Kelley would need $950 in cash over a period of a week to pay her bills. Walsh replied that she would not, explaining that his mother's car was paid for, her home was paid for, and that Kelley just had routine, normal bills that she, as a practice, paid by check. Cindy McQuarters, a loss prevention manager for Valero Energy, then testified that in October 2005, she was asked by Detective Kinney about whether Valero Energy's convenience stores had retained videotape of October 7, 2005, and October 12, 2005. Because the videotapes repeat themselves every fifteen days, McQuarters was unable to retrieve videotape relating to October 7, 2005. However, she did retrieve videotape of October 12, 2005, at 8:17 a.m. The videotape showed Arriaga entering the convenience store alone and withdrawing money from the ATM. Benjamin Paul Watt, who in October 2005 worked in the Card Services Department of Kelley's bank, testified that on October 12, 2005, he received a call from Patricia Sandusky, another bank employee, informing him that one of the bank's customers, Kelley, was reporting fraudulent activity with respect to ATM transactions. Watt testified that Kelley opened her account on July 7, 2005, and that as a customer opening an account, she was offered a debit card. Watt further testified that Kelley had had no debit card transactions in July, August, or September. In October 2005, Kelley had four debit card transactions, one at the bank location, and three at an offsite ATM. And, he testified that Kelley had no debit card transactions in November. According to Kelley's bank records, the first time her debit card was used was on October 7, 2005, at a convenience store ATM. Patricia Sandusky, a bank employee, next testified. She testified that on October 12, 2005, Kelley and her caregiver, a Hispanic woman who was about 5' 3", came into the bank branch. Kelley was upset and said that she had some transactions on her debit card that were not hers and that there was money missing from her account. Sandusky printed out the activity on Kelley's account. Kelley reviewed the transactions and identified three transactions that were not hers. When asked whether the debit card had ever been out of her possession, Kelley responded that it had not. When asked whether anyone else had control over her card, Kelley said that her caregiver knew the PIN number, because when they went to a drive-thru ATM, she would have to give her caregiver the card and tell her caregiver the PIN number to complete the transaction. According to Sandusky, Arriaga said that "it was not me [who] did those transactions." Sandusky testified that she called Benjamin Watt of the bank's card services department, who printed out two forms for Sandusky: a Cardholder Dispute Form and a ATM/Freedom Card Fraud Research Form. Both forms were admitted in evidence. According to Sandusky, she helped Kelley fill out both forms. The Cardholder Dispute Form indicates that Kelley was disputing $807.75 in unauthorized charges on her debit card; that Kelley had the card in her possession; and that she discovered the loss and reported the loss on October 12, 2005. The ATM/Freedom Card Fraud Research Form states that she had authorized her caregiver, Arriaga, to use her card; that she knew who may have used her card; and that her PIN was in her wallet with the card. The form then has a place for "Member's Comments," which states the following:Card has been in possession. The first time Mary Kelley used the card was Tuesday afternoon at the Live Oak Branch and withdrew $150. Mary Kelley and Flora [Arriaga] are the only ones to Mrs. Kelley's knowledge [who] knew the card number.Sandusky testified that she handwrote the above for Kelley because Kelley had difficulty writing. Kelley then signed both forms. Sandusky told Kelley that before the bank would reimburse her for the fraudulent transactions, Kelley would have to file a police report. On cross-examination, the defense questioned Sandusky about whether Kelley said she had ever gone to an ATM to withdraw money with her caregiver:
And it's on your — the other sheet. On reading it, the card has been in my possession. The first time that Ms. Kelley or Mary Kelley used the card was Tuesday afternoon. So as my memory is start — my memory is starting to come back. I think I asked her when she activated the card because in order to activate the card, you have to do a PIN-based transaction. And I think that she thought that — she was saying that she activated the card when she went to the Live Oak branch. But looking at the transactions, it was activated prior to that. When we see that type of situation, we will ask the member, "Is there anybody else [who] could have gotten your mail, [who] could have gotten the card, and could have gotten the PIN that was mailed to you and gone and used the card and the PIN since they have access to it? And that's where this could be from. The transactions prior to the 12th could have been — easily could have been — if anybody has possession of those two items, the transactions could have been done.The defense then asked Sandusky how somebody activates a card:
We will order the card. It takes seven to ten business days to receive the card. Separately a PIN, which is four numbers, is mailed to them. They can come a couple of days before or after the card. Once they have the card and the PIN, they go to an ATM, they put the card in there, they enter the PIN that was mailed to them, and they can do an inquiry or withdraw money. And now it's with that — that PIN-based transaction, that card has just been activated.On re-direct, Sandusky testified that Kelley thought she had activated the card on Tuesday, October 11, 2005, because that was the first time she had used the card. Officer Aaron Pembley then testified that on October 12, 2005, at 2:30 p.m., Kelley came into the police station with her caregiver, Arriaga, and wanted to file a report. After Kelley provided him with information, Officer Pembley contacted Benjamin Watt at the bank and obtained Kelley's financial records showing when and where the fraudulent transactions had taken place. Kelley told Officer Pembley that Arriaga had access to her card and PIN number, but was not allowed to make withdrawals without her permission. Kelley told Officer Pembley that Arriaga was not authorized to make the three transactions at issue. Detective David Kinney then testified that he received the report filed by Kelley on October 14, 2005. He interviewed Kelley and obtained a written statement. Detective Kinney went to the three convenience stores in question and was able to retrieve video footage of the October 12, 2005, transaction, which showed Arriaga making a withdrawal at the convenience store ATM. At the end of direct examination, the following exchange took place between Detective Kinney and the State:
Q: And did [Kelley] complete an intent to prosecute form?
A: Yes, she did.
Q: And who did she say she wished to file charges against?
A: The defendant in this case.Then, on cross-examination, the following exchanged occurred between Detective Kinney and the defense:
Q: So in the second paragraph [of the report] when you said that Ms. Kelley acknowledged that Arriaga had access to her card and PIN number.
A: Yes, sir.
Q: Correct? And also said that she was not allowed to make a withdrawal without permission?
A: Correct.
Q: Doesn't that suggest that at some points she may have had permission?
A: I'm not sure if she was allowed or not. She advised me that she was not authorized at the times of these three transactions.
Q: Well, I'm just trying to make sure I understand what you meant when you wrote it that way. [It] seems to imply at certain times she had permission and certain times she did not.
A: That's the gist of what I understood from our meeting, yes, sir.
Q: In other words, that's what you intended when you wrote that?
A: Yes, sir.
Q: Okay. Did you see any need to inquire further of her when she told you that? For example: Ms. Kelley, tell me what you mean. When did she have permission and when did she not have permission?
A: Well, like I said, sir, she brought these three separate incidents to my attention, stating that these were the three that were not authorized, so that's . . .
Q: Okay. So you just took it that whatever transactions occurred in the past, these particular three in her recollection were not authorized?
A: Correct.The defense then moved to admit Defendant's Exhibit 1, which was admitted without objection. Defendant's Exhibit 1 is a copy of the affidavit Kelley signed at the police station and states the following:
My name is Mary Kelley and I am 80 years old. Det. David Kinney assisted me with the preparation of this statement, [but] the words and thoughts are my own. On 10/12/05, at 1430, [my bank] called me and reported that over eight hundred dollars had been withdrawn from my account using my ATM/Debit card. The first withdrawal was on 10/06/05, at 1544 hours for $202.50, the second was [on] 10/10/05, at 1130, for $302.75, and the third was on 10/12/05, at 0820, for $302.50. I suspect one of my care takers named Flor Arriaga may have used the card to steal from me. She knew where the card was and she knew where the PIN number was because she occasionally did transactions on my behalf.After the State rested, Arriaga testifed on her own behalf. According to Arriaga, she was present with Kelley when Kelley first activated her debit card. Arriaga was then asked to describe what happened when Kelley activated her card:
We went to the ATM, and we attempted to activate the card but three times it failed to do so. And, since the third time the card would no longer work because it just quit working, then I would help her get up in the car and took her to the office. I took her to the lobby of the bank, and I spoke to someone over there, one of the girls there. And [Kelley] told her what had been going on with her card. And, so I sat down, and she continued doing her things. And, that's when the girl told [Kelley] that she had to work the card three times in order to activate it. And, she did not remember the number three times. And, so that's when she asked me and that's when I helped her to do that.Arriaga testified that Kelley asked her several times to take money out of the ATM for her, because Kelley could not walk well and was using a walking stick. Arriaga was not able to remember the exact dates that Kelley asked her to use the ATM card, but she did remember on one occasion, Kelley was at the animal hospital and needed money to pay the animal hospital. So, while Kelley remained at the hospital, Arriaga went to retrieve money from an ATM. Arriaga did not know why Kelley did not write a check. Arriaga was then shown pictures of herself using Kelley's ATM card at the convenience store. Arriaga admitted that the person in the picture was her. But, according to Arriaga, she had Kelley's permission to use the card, and the day in question was the day that Kelley asked her to withdraw money to pay the animal hospital. When asked why she had told the bank employee that she had not taken the money, Arriaga testified, "What I felt was that they asked the question as if I had taken it out for myself and that's why I answered." Later, when asked again why she did not explain to the bank employee that Kelley occasionally gave her permission to use the card, Arriaga stated, "Well, the deal is when she told me this, I really felt bad so I kind of froze and I did not say anything." According to Arriaga, she then went to Mexico because her father had died, and when she came back, her boss informed her that there would be an investigation. On cross-examination, Arriaga testified that she did not know when her father died, but said that it was sometime during the month of October 2005. Arriaga claimed that she stopped working for Kelley because she had to leave to go to Mexico because of her father's death. However, on cross-examination she was confronted with her paycheck stubs, which did not show a gap in payment until December 2005. According to Arriaga's paycheck stubs, she did not receive a paycheck between December 2, 2005, and March 3, 2006. When asked if that could have been when her father passed away, Arriaga could not recall, but claimed that there was not a lot of work during that time period. Arriaga was then questioned about the three transactions at issue:
Q: Did you make all three of those transactions that we're talking about on Mrs. Kelley's [debit] card?
A: Yes, ma'am.
Q: And you made the one that was at the drive-thru teller for the 150; is that correct?
A: Yes, ma'am.
Q: One was for 200?
A: Yes.
Q: Is that correct? One was for 300?
A: Yes, ma'am.
Q: And the third one was for 300?
A: Yes, ma'am.
Q: Those were all three from convenience stores?
A: Uh-huh, yes.
Q: And then one was from the drive-thru at Randolph Brooks, at the bank, correct?
A: Yes, ma'am.
Q: What were the — what was the withdrawal for on October 6th?
A: To tell you the truth, I don't know. She simply asked me to withdraw the money.
Q: And what about October the 10th or the 11th — 10th, yes.
A: The only thing I remember is the day that we were at the [animal] hospital and she needed the money, but I would not ask her otherwise because that was her business.
Q: So when you were in the bank — Oh, tell me about activating the card again. How did you use the card on October 6th, the first time?
A: She went to the ATM outside, she stuck the card in and she punched in the numbers, but it blocked — the numbers were blocked. So, she got back in the car and then that's when I took her around the bank to take her to the lobby.
Q: What about the transactions on — the transaction on October 6th?
A: She did it with my help.
Q: At the convenience store?
A: Yes, ma'am.
Q: So now she got out and went inside a convenience store and tried to use it three times?
A: No.
Q: Then when did she try to use it three times? You said that — you just said that you used the card — on October 6th, you used it three times at convenience stores. And then — excuse me, go ahead.
A: No. What happens is that I would only take her and then she would tell me to withdraw the money. And that's all I would do is simply help her out.
Q: Okay. How long was her — which pet went to the animal hospital?
A: Her cat.
Q: And this is the same day that you went to the bank?
A: Yes, in the morning.
Q: So, her cat had a dire emergency that day. Your testimony is the cat had an emergency that day, had to go to the vet, she couldn't use her checkbook, and she sent you to an ATM to withdraw $300?
A: No. The cat, by then, had already been at the hospital for about three or four days.
Q: And, this wasn't mentioned by anybody at the bank, either by you or Mrs. Kelley, that that same day you had paid the money for the cat?
A: No, ma'am.
Q: And, you don't recall why you took out the money on the 6th for 200 and why you took out 300 on the 10th?
A: She would tell me to withdraw this money and that's what I would do. I really can't tell you what she would want it for. I would simply do what she asked me to do.
Q: And on the 6th, which was the first time that the ATM card was used, that's not the day that you had difficulty with the PIN number?
A: I don't remember.
Q: You heard the bank person testify that the first time you used the card, you just used the card and the PIN and you activated it, correct?
A: Yes, I heard that.
Q: And you were the first one to use the card, correct?
A: To tell you the truth, yeah.
Q: And you activated the card on that first day you used it?
A: With her.
Q: With her. At the convenience store?
A: Yes, ma'am.
Q: So on that day she took her walker and walked into the convenience store?
A: Yes.
Q: Okay. When you withdrew the $150, that was actually on Tuesday afternoon, correct?
A: Yes. If that's what it says, that's what it is.
Q: And then Wednesday morning is when you took the money out, the $300 that we saw on the videotape?
A: Yes.Arriaga then testified that she did not tell the bank employee that Kelley had given her permission to make the withdrawals, nor did she inform the police officer at the police station that she had permission.