Opinion
No. 06-11-00127-CR
03-16-2012
CHELVARLIER QUENTICE BROWN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 188th Judicial District Court
Gregg County, Texas
Trial Court No. 40,258-A
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Chelvarlier Quentice Brown was convicted of theft under $1,500.00. Her conviction of the theft charge was enhanced by prior offenses, and she was sentenced to ten years' imprisonment. On appeal, she challenges the sufficiency of the evidence. We overrule her appellate arguments and affirm the trial court's judgment.
Blake Peoples, the manager of The Buckle clothing store at the Longview mall, noticed Brown and two other women who had entered the store in December 2010. What had caught Peoples' eye and made their appearance seem suspicious to him was that all three wore sweatpants under their dresses and wigs that he called "strange," "kind of like a disguise almost." Peoples characterized the sweatpants worn under dresses as a very unusual fashion choice. As he watched, Brown entered a dressing room and had a store employee give her random sizes of clothes. Peoples said the sizes that Brown requested were unusual for a woman of Brown's size to request because the sizes requested were ones "that normally would not fit her body type." As Brown was engaging in this conduct, another of the three women was in the back of the store, where she was seen with her dress "hiked up," and a shirt fell from under it. When Peoples approached the other woman and asked her about the shirt on the floor, the woman caused a scene, accused Peoples of racial profiling, and asked for the telephone number to the store's corporate office. Brown joined in this "loud scene." As one of the women was speaking on the telephone with the store's corporate office, the other two women were making their way toward the front of the store. The third woman had moved toward the back of the store, where Peoples saw her take several pairs of jeans (valued at almost $800.00) out of her sweatpants and put them on a wall rack. This same woman also dropped a pair of wire cutters, a device which Peoples said was used to cut security devices from clothing. Shortly thereafter, the mall's security officer arrived, and the three women were arrested. Peoples said it was "obvious" that the one woman, who had jeans under her shirt or dress, did not intend to pay for the clothes she had in her possession.
The jury was sent out, and based on the discussion from the parties, there was an agreement not to mention the wire cutters again. Peoples was instructed not to mention them again, but no instruction was requested to be made to the jury to disregard the statement already made and no such instruction was given.
Sufficiency of Evidence
Brown's first point of error claims that the evidence is insufficient to sustain her conviction. Specifically, Brown argues that because none of the items of clothing was ever taken outside the store, no theft occurred.
In reviewing the legal sufficiency of the evidence, we review all the evidence in the light most favorable to the jury's verdict to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref'd) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). Our rigorous legal sufficiency review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917-18 (Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury "to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19).
Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury charge "sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id.
The jury was instructed on the law of parties. TEX. PENAL CODE ANN. §§ 7.01, 7.02 (West 2011).
The indictment alleged Brown did "unlawfully appropriate, by acquiring or otherwise exercising control over, property, to-wit: clothing, of the value of less than $1,500.00, from B. Peoples, the owner thereof, without the effective consent of the owner, and with intent to deprive the owner of the property." The indictment then listed prior theft convictions elevating the allegation to a state-jail felony; and two prior state-jail felony convictions, elevating the punishment range to that of a third-degree felony. See TEX. PENAL CODE ANN. §§ 31.03(e)(4)(D), 12.42(a)(1) (West Supp. 2011).
Cf. TEX. PENAL CODE ANN. § 31.03(a), (b)(1) (West Supp. 2011).
Removal of Property Not Required
In order for a theft to occur, the stolen property need not be removed from the owner's premises; rather, theft can be accomplished if there is evidence that the defendant exercised control over the property and had the intent to deprive the owner of the property. Hill v. State, 633 S.W.2d 520, 521 (Tex. Crim. App. [Panel Op.] 1981). In Hill, Hill and another man entered a gun shop together; while the partner examined ammunition, the proprietor saw Hill put a pistol in his shirt. Hill then dropped two pistols on the counter and fled. The Texas Court of Criminal Appeals found the evidence sufficient to prove the elements of theft. As in Hill, the evidence here is sufficient to prove that Brown exercised control over the clothing with the intent to deprive the owner of said property.
See also Barnes v. State, 513 S.W.2d 850, 851 (Tex. Crim. App. 1974) ("Having taken possession and control of the automobile by entering it and starting the motor, with his hands on the steering wheel, with the obvious intent to drive it away, the taking was complete although appellant was interrupted before he had time to abscond with it.").
Brown also contends that the evidence does not prove that Peoples, the store's manager (who was alleged in the indictment as being the owner of the property), did not consent to Brown's appropriation of the merchandise. Brown offers no legal authority or citations to support this claim. On the contrary, she simply asserts "there is no evidence that if a taking did occur, that the owner did not give consent." Regardless, the jury could infer Peoples' lack of consent from circumstantial evidence, i.e., his description of events and summoning of security. See Wells v. State, 608 S.W.2d 200, 203 (Tex. Crim. App. [Panel Op.] 1980) (op. on reh'g).
Enhancement Proved
In her last point, Brown complains about a variance in the proof of one of the prior theft convictions used to determine the offense level. The indictment alleged that Brown had two prior theft convictions, one on June 4, 2004, "in the County Criminal Court of Law at Harris County, Texas, in cause number 989375." At trial, the State made a proffer of proof (which was admitted into evidence) of a judgment showing that Brown had been convicted of theft June 4, 2004, in cause number 989375, this portion of the proof conforming to the indictment. However, the court of conviction was the 182nd Judicial District Court of Harris County, not a County Criminal Court of Law of that same county. During opening argument, Brown's attorney unequivocally stipulated that Brown had twice previously been convicted of theft, pointing out that the guilt or innocence of Brown for the crime with which she was currently charged (and not the prior convictions) was the matter the jury needed to consider. Brown offered no objection when judgments of the two prior theft convictions were offered.
The Texas Penal Code proves that a theft of property valued at less than $1,500.00 is a state-jail felony if the defendant has previously been convicted of theft two or more times. TEX. PENAL CODE ANN. § 31.03(e)(4)(D).
The judgment is on a form which, in the upper right section, has entries for either designation of a District Court or a County Criminal Court at Law, each with a blank which presumably could be completed to indicate which court rendered the judgment.
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"A defendant in a criminal case may stipulate to evidence against him. If the defendant elects to do this, his stipulation is a kind of judicial admission." Bryant v. State, 187 S.W.3d 397, 400 (Tex. Crim. App. 2005). If a defendant wishes to stipulate to prior convictions, then that defendant cannot later complain because the jury did not have an opportunity to decide that uncontested element. Martin v. State, 200 S.W.3d 635, 642 (Tex. Crim. App. 2006).
Even absent the stipulation, allegations of prior convictions for enhancement purposes do not need to have the same particularity that is required in charging a primary offense. Freda v. State, 704 S.W.2d 41, 42 (Tex. Crim. App. 1986); see also Rooks v. State, 576 S.W.2d 615, 617 (Tex. Crim. App. [Panel Op.] 1978) (acknowledging "the trend in the law regarding allegations of prior convictions has generally been toward a relaxation of the rigid rules of the past"). The accused is entitled only to a description of the judgment of former conviction that will enable her to find the record and prepare for a trial on the question of whether she is the convictee named in the judgment. Villescas v. State, 189 S.W.3d 290, 293 (Tex. Crim. App. 2006) (quoting Hollins v. State, 571 S.W.2d 873, 875 (Tex. Crim. App. 1978)). Variances between an enhancement allegation and the proof in regard to cause numbers, courts, and dates of conviction have all been held to be immaterial. Freda, 704 S.W.2d at 42-43. In Arce v. State, 552 S.W.2d 163, 164 (Tex. Crim. App. 1977), the enhancement paragraph was held to provide sufficient notice to enable the accused to locate the prior felony convictions alleged: in Arce, the State alleged the cause number, county, and date of conviction, but omitted the designation of the court in which Arce was convicted.
The evidence was sufficient to prove the prior theft conviction; the variance of indicting the prior theft conviction with the incorrect court is not material. We affirm the trial court's judgment.
Bailey C. Moseley
Justice
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