No. 12-04-00076-CR
Opinion delivered April 29, 2005. DO NOT PUBLISH.
Appeal from the 173rd Judicial District Court of Henderson County, Texas.
Panel consisted of WORTHEN, C.J., GRIFFITH, J., and DeVASTO, J.
DIANE DEVASTO, Justice.
Appellant Rebecca Carpenter appeals her conviction for theft over $1,500 but less than $20,000. In two issues, Appellant challenges the sufficiency of the evidence to support her conviction. We affirm.
Background
Appellant was charged by indictment with theft over $1,500 but less than $20,000, a state jail felony. See Tex. Pen. Code Ann. § 31.03(a), (e)(4)(A) (Vernon Supp. 2004-2005). Specifically, Appellant was charged with unlawfully appropriating United States currency having a value of $1,500 or more but less than $20,000 from Deann Owens, the owner thereof, with intent to deprive Owens of the property. Appellant pleaded "not guilty" and elected a trial by jury. During the guilt/innocence phase, the State's first witness was Deann Owens, a twenty-two-year employee of Cedar Creek Bank who had been senior vice president for the past ten years. Owens testified that Appellant was a temporary employee who began working at the branch bank in Tool in October 2000. Owens also described the bank's computer systems as well as the internal checks and balances used by the tellers as they conduct banking activity with customers. She described journal tapes that record deposits, "cash out," lists of checks, loan payments, and account histories as well as the history of all transactions as they are recorded and printed. The journal tapes are used by the tellers to balance their cash drawers at the end of the day. Owens testified that on April 5, 2001, Appellant balanced her drawer to show a correct cash balance of $11,220.61. Appellant logged off the system, removed the drawer, and placed it in the bank vault. Thereafter, on April 6 and 9, 2001, Appellant failed to appear for work at the bank. Owens further testified that she retrieved the duplicate key from the main branch and removed Appellant's cash drawer from the vault. The cash drawer was audited in the presence of Lynn Clowdus, another bank employee. The audit revealed a $5,999.86 shortfall in Appellant's drawer. This amount was also indicated on the journal tape for April 9, 2001. Another audit, conducted for verification, showed the same result. Owens contacted Appellant, who seemed unconcerned about the missing money and told Owen that her drawer was balanced when she left the bank on April 5. Owens also testified that security at the bank is monitored by a system that records all entries and that no one entered the bank after banking hours from April 5 to April 9. Karen Harrell testified that she had assisted Owens with the second audit of Appellant's drawer and found it short by $5,999.86. She also stated that the drawer did not appear to be tampered with in any way. She counted the other tellers' cash drawers and even checked the trash, but found none of the missing money. Harrell and Owens watched a videotape of Appellant and other tellers from April 5, 2001. They observed that no one had any contact with Appellant's drawer after she balanced it, locked it, and placed it in the vault. Clowdus testified about the bank policies and procedures, including access to duplicate keys and teller drawers. Henderson County Sheriff's Office Investigator David Jones testified that he never received any records or memos from the bank and that the videotape of the bank for the day in question had been taped over. Also, he stated that Appellant voluntarily gave him a tape-recorded statement, but the statement was lost. He noted that Appellant was extremely cooperative and made no incriminating remarks in her statement. She informed him that she did not know what happened to the money. At the conclusion of the trial, the jury found Appellant guilty of theft as charged in the indictment. After a punishment hearing, the court assessed punishment at confinement for eighteen months, probated for four years with various conditions, including restitution. This appeal followed. Factual Sufficiency of the Evidence
In her first issue, Appellant contends the evidence is factually insufficient to support her conviction. She argues that the bank failed to preserve the journal tapes from the teller transactions of April 5 and April 9, 2001. In addition, she argues that the bank destroyed a videotape that may have contained exculpatory evidence. Finally, she asserts that the Henderson County sheriff's office lost her tape-recorded statement and that this tape could have contained exculpatory information. She argues that these missteps by the bank and the State were the result of negligence and created a situation in which the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Although Appellant characterizes this issue as a factual sufficiency challenge, her argument, in substance, relates to the destruction of evidence and its effect on the outcome of her trial. Consequently, in addition to factual sufficiency, we will also address Appellant's implicit contention that the destruction of the evidence violated her due process rights. Standard of Review
When reviewing the factual sufficiency of the evidence, we review all of the evidence but not in the light most favorable to the prosecution. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). We must determine whether a neutral review of the evidence, both for and against the finding, demonstrates that a rational jury could find guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilty beyond a reasonable doubt. Id. Evidence is also factually insufficient when contrary evidence is so strong that the beyond-a-reasonable-doubt burden of proof could not have been met. Id. at 484-85. Our evaluation should not substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony. Wesbrook v. State, 29 S.W.3d 103, 112 (Tex.Crim.App. 2000) (citation omitted). Analysis
The loss or destruction of exculpatory evidence can deny a criminal defendant due process of law. Lee v. State, 893 S.W.2d 80, 86 (Tex.App.-El Paso 1994, no pet.). The duty to preserve evidence is limited to evidence that possesses an exculpatory value that was apparent before the evidence was destroyed. Id. (citing California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 2534, 81 L. Ed. 2d 413 (1984); McDonald v. State, 863 S.W.2d 541, 543 (Tex.App.-Houston [1st Dist.] 1993, no pet.)). Absent bad faith, the mere failure to preserve potentially useful evidence does not of itself result in the denial of due process. Lee, 893 S.W.2d at 86 (citing Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 337, 102 L. Ed. 2d 281 (1988); Ex parte Brandley, 781 S.W.2d 886, 894 (Tex.Crim.App. 1989)). However, we examine the totality of the circumstances to determine whether the loss resulted in a trial so lacking in fairness as to offend due process. Lee, 893 S.W.2d at 86 (citing Ex parte Brandley, 781 S.W.2d at 892; Gilbert v. State, 840 S.W.2d 138, 142 (Tex.App.-Houston [1st Dist.] 1992, no pet.)). To show that denial of due process occurred when evidence was lost, an appellant must show that (1) the evidence was lost or destroyed by the State after a request therefor, (2) the evidence was favorable to the defense, and (3) the evidence was material. Nastu v. State, 589 S.W.2d 434, 441 (Tex.Crim.App. 1979). A showing that the evidence might have been favorable does not meet the materiality standard. Lee, 893 S.W.2d at 87 (citing Hernandez v. State, 867 S.W.2d 900, 908 (Tex.App.-Texarkana 1993, no pet.); McDonald v. State, 863 S.W.2d at 543). In her brief, Appellant does not contend, nor does the record reflect, that the State ever had any of the lost or destroyed items in its possession or had any role in their loss or destruction. Consequently, Appellant has not satisfied the first requirement of Nastu. See Nastu, 589 S.W.2d at 434 (must show evidence was lost or destroyed by the State after a request therefor). Appellant complains that the items lost or destroyed by the bank "could have contained exculpatory information" and "could have exonerated" her. Appellant also contends that the unavailability of the bank information, combined with the loss of her videotaped statement to law enforcement, required the jury "to surmise an opinion based on assumptions and emotions" rather than admissible, factually sufficient evidence. However, she provides no explanation of the nature of the missing evidence or how the evidence might have exonerated her. Therefore, her allegations constitute only bare assertions that the evidence might have been favorable. See Lee, 893 S.W.2d at 87. These allegations, which are unsupported by the record, are insufficient to establish that the lost or destroyed items were favorable to Appellant or that they were material. See id. Moreover, Owens and Harrell both testified that the destroyed bank items showed no evidence of tampering by another person and were destroyed in accordance with bank policy. Jones testified that Appellant's videotaped statement did not include any exculpatory information. No evidence to the contrary is included in the record. Based upon our review of the record, we conclude that Appellant has wholly failed to satisfy the requirements of Nastu. Therefore, she has not shown that the loss or destruction of the identified items violated her right to due process. See id. In hearing the evidence, the jury determined the credibility of the witnesses and resolved the evidentiary inconsistencies in the State's favor, which is its prerogative as fact finder. See Wesbrook, 29 S.W.3d at 112. In reviewing the factual sufficiency of the evidence, both for and against the verdict, and giving due deference to the factfinder, we cannot say that the evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Nor can we conclude that the contrary evidence is so strong that the beyond-a-reasonable-doubt burden of proof could not have been met. Therefore, we conclude that the evidence is factually sufficient for the jury to find Appellant guilty as charged in the indictment. Appellant's first issue is overruled. Legal Sufficiency of the Evidence
In her second issue, Appellant contends that the evidence is legally insufficient to support her conviction. Specifically, Appellant argues that even viewing the evidence in the light most favorable to the verdict, there was no evidence that Owens was the "owner" of the currency as alleged in the indictment. Standard of Review
"Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction." Escobedo v. State, 6 S.W.3d 1, 6 (Tex.App.-San Antonio 1999, no pet.) (citing Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-88, 61 L. Ed. 2d 560 (1979)). The standard of review is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; LaCour v. State, 8 S.W.3d 670, 671 (Tex.Crim.App. 2000). The evidence is viewed in the light most favorable to the verdict. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; LaCour, 8 S.W.3d at 671. The conviction will be sustained "unless it is found to be irrational or unsupported by more than a `mere modicum' of the evidence. . . ." Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988). The jury is the sole judge of the credibility of witnesses and of the weight to be given their testimony. Barnes v. State, 876 S.W.2d 316, 321 (Tex.Crim.App. 1994). Any reconciliation of conflicts and contradictions in the evidence is entirely within the jury's domain. Losada v. State, 721 S.W.2d 305, 309 (Tex.Crim.App. 1986). If a reviewing court finds the evidence legally insufficient to support a conviction, the result is an acquittal. Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S. Ct. 2211, 2217-18, 72 L. Ed. 2d 652 (1982). A person commits theft if she unlawfully appropriates property with the intent to deprive the owner of the property. Tex. Pen. Code Ann. § 31.03 (a). The term "owner" includes a person who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor. Tex. Pen. Code Ann. § 1.07(a)(35)(A) (Vernon Supp. 2004-2005); see also Alexander v. State, 753 S.W.2d 390, 392 (Tex.Crim.App. 1994) (holding that ownership may be proved in three ways: title, possession, or a greater right to possession than defendant). "Possession" means actual care, custody, control, or management. Tex. Pen. Code Ann. § 1.07(a)(39) (Vernon Supp. 2004-2005). Owens testified at trial that she is the senior vice president of Cedar Creek Bank and oversees all branch banking activities, which include new accounts, teller areas, customer accounting, the call center, and data processing. She has been with the bank for twenty-two years and is ultimately responsible for the bank's cash on hand and missing money. She testified that she has access to the keys that unlock all the teller drawers and she has the audit authority for those drawers. In fact, she stated that she has audit authority for all the vaults at all branch locations. Appellant cites Simpson v. State, 648 S.W.2d 1 (Tex.Crim.App. 1983) to support her argument that there was no evidence or, alternatively, insufficient evidence that Owens had a greater right than Appellant to possession of the currency in question in this case. However, in Simpson there was no testimony that the "owner" named in the indictment had title to the property, possession of the property, or a greater right to possession than the appellant. See id. at 2. Here, Owens's capacity and responsibilities at the bank were explained in great detail and established that Owens had a greater right to possession of the currency than did Appellant. As such, the State established that Owens was the "owner" of the currency as that term is defined in the penal code. See Tex. Pen. Code Ann. § 1.07 (a)(35)(A). Viewing the evidence in the light most favorable to the jury's verdict, we conclude that a rational trier of fact could have found the elements of theft beyond a reasonable doubt. Accordingly, Appellant's second issue is overruled. Disposition
Having overruled Appellant's first and second issues, we affirm the judgment of the trial court.