No. 08-07-00120-CR
October 21, 2009. DO NOT PUBLISH.
Appealed from the 346th District Court of El Paso County, Texas (TC#20060D02089).
Before CHEW, C.J., McCLURE, and CARR, JJ. CARR, J., not participating.
ANN CRAWFORD McCLURE, Justice.
This is an appeal from a jury conviction for the offense of theft of property in an amount of $1,500 or more but less than $20,000 (aggregated). The jury assessed punishment at one hundred and eighty days' confinement in the State Jail Division of the Texas Department of Criminal Justice. For the reasons that follow, we affirm.
Appellant was originally charged in an eight count indictment which consisted of seven counts of forgery and one count of theft. Appellant was found not guilty of the seven forgery counts and it is the remaining theft count that is before us in this appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant was accused of having unlawfully appropriated from William Missik United States currency in a sum of $1,500 or more, but less than $20,000 between the dates of July 5, 2005 and July 23, 2005, as one scheme and continuing course of conduct. Seven different instances of theft were alleged which were aggregated to equal a sum within that range of dollar amounts. Prior to trial, Appellant objected to expert witness testimony by David Lopez and Susan Cross with regard to any handwriting or fingerprint analysis. Appellant maintained that the State had violated the trial court's discovery order by failing to timely designate the two witnesses as experts. The trial court sustained the objection and the testimony of Lopez and Cross was disallowed. At trial, William Missik testified that he was the office manager for A B Auto Salvage in El Paso, Texas. He was introduced to Appellant by a mutual friend at Thirsty's Bar and Grill. Appellant mentioned that she was looking for a job. Missik needed help in the office, and he suggested that she apply for a job. She filled out an employment application in Missik's presence. The application contained Appellant's social security number and her date of birth. She was called in for two interviews and then hired. Missik testified that he would frequently give Appellant a ride to work in the morning as she did not have a car. Missik's desk was in the middle of the office, and Appellant's desk was at one end of the office, about two or three feet away from his desk. There was an extra desk at the far corner of the office behind his desk. Appellant's primary duties were to input data into the computer as the hard drive had crashed. Missik was able to write checks on behalf of his employer. Most of the checks were kept in the safe, but twenty or thirty checks were kept in a bin on the wall by his desk. They were available to him on a daily basis. Anyone who knew the checks were in the bin could access them. Every morning Missik would check the bank account online and make a report for his employer. Appellant's duties did not involve writing checks, and she was not authorized to write any. She was not on the payroll and she was paid in cash because she was in training. Missik's employer had never written a check to Appellant, nor had he ever signed a check using Missik's name. Missik testified that all the checks had been cashed and debited from the business bank account. Appellant stopped showing up for work after about two months. She did not give any notice. When Missik checked the bank account on July 27, 2005, several days after Appellant quit, he noticed five checks that he had not written. He reported the theft to his employer, and then to the police. He also notified the bank. Two more stolen checks were subsequently discovered on the bank account. Missik testified that check number 8520 was dated July 5, 2005, and was made payable to Appellant in the amount of $187.50. He stated that his name appeared on the check but it was not his signature. He knew he had not written the check because he had never written a check to Appellant for any reason; he never wrote out the word "dollars" as "D.L.L.S." as it appeared on the check; it was not his handwriting; and he always wrote in print rather than script. He signed his name on a blank page on an easel in front of the jury. He agreed that the signatures on the easel and the check were close, but he was "100 percent positive" that the signature on the check was not his. Missik testified that he had not given Appellant consent to write the check or sign his name. He also testified that the check had been cashed, and that Appellant's name appeared on the back of the check. The social security number and date of birth given by the person who cashed the check matched the information Appellant provided on her employment application. On cross-examination, Missik explained that he had observed Appellant's signature in the past and that the signature on the back of the check appeared to be hers. Missik was shown check number 8536 dated July 12, 2005 in the amount of $187.50. He had not authorized Appellant to write or cash the check. His testimony mirrored the testimony given concerning check number 8520. He offered similar testimony with regard to check number 8552 dated July 14, 2005 in the amount of $187.50, check number 8557 dated July 18, 2005 in the amount of $187.00, check number 8558 in the amount of $200, check number 8559 in the amount of $456.05 made payable to "Electric Company," and check number 8560 dated July 23, 2005 in the amount of $200. On cross-examination, Missik explained that he gave Appellant rides to work because she lived along his route. He had never tried to pursue a relationship with her. Customarily, employees were paid in cash for two weeks until they were put on the payroll. Appellant was not placed on the payroll because the nature of her work required a greater training period. Missik also testified that the checks in question were not payroll checks because they would not have been handwritten; they would have been printed through the business's computer. Missik admitted that he stopped working at A B Auto Salvage and took a job at Andre Auto Salvage. He returned to A B a short time later, and he then went back to Andre Auto Salvage. He was unhappy with the situation at A B and he did not see a future there as the company's sales had diminished. Detective Ellen Thompson of the El Paso County Sheriff's Office testified that she investigated the case involving the stolen checks. She compared the amounts on the checks with the hours that Appellant worked and she found the amounts inconsistent. She also confirmed that the check written to the Electric Company had been paid toward Appellant's account. LEGAL SUFFICIENCY
In Issues One, Two, and Five, Appellant complains that the evidence is legally insufficient to support the conviction. We begin with the standard of review. Standard of Review
In reviewing the legal sufficiency of the evidence, we are constrained to view the evidence in the light most favorable to the judgment to determine whether any rational trier of fact could find the essential elements of the offense, as alleged in the application paragraph of the charge to the jury, beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). More particularly, sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically-correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 239-40 (Tex.Crim.App. 1997). Our role is not to ascertain whether the evidence establishes guilt beyond a reasonable doubt. Stoker v. State, 788 S.W.2d 1, 6 (Tex.Crim.App. 1989), cert. denied, 498 U.S. 951, 111 S.Ct. 371, 112 L.Ed.2d 333 (1990); Dwyer v. State, 836 S.W.2d 700, 702 (Tex.App.-El Paso 1992, pet. ref'd). We do not resolve any conflict in fact, weigh any evidence or evaluate the credibility of any witnesses, and thus, the fact-finding results of a criminal jury trial are given great deference. Menchaca v. State, 901 S.W.2d 640, 650-52 (Tex.App.-El Paso 1995, pet. ref'd); Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991); Leyva v. State, 840 S.W.2d 757, 759 (Tex.App.-El Paso 1992, pet. ref'd); Bennett v. State, 831 S.W.2d 20, 22 (Tex.App.-El Paso 1992, no pet.). Instead, our only duty is to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict. Adelman, 828 S.W.2d at 421-22. In so doing, we resolve any inconsistencies in the evidence in favor of the verdict. Matson, 819 S.W.2d at 843, citing Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988). The trier of fact, not the appellate court, is free to accept or reject all or any portion of any witness's testimony. Belton v. State, 900 S.W.2d 886, 897 (Tex.App.-El Paso 1995, pet. ref'd). Without Effective Consent or Intent to Deprive
In Issue One, Appellant maintains that the evidence is legally insufficient with regard to two of the checks because the State failed to prove that she appropriated check numbers 8520 and 8558 without the owner's effective consent or that she did so with the intent to deprive the owner of the checks. A person commits the offense of theft if she unlawfully appropriates property with the intent to deprive the owner of the property. See Rushing v. State, 141 S.W.3d 739, 742 (Tex.App.-El Paso 2004, no pet.). Such appropriation is unlawful if it is without the owner's effective consent. Id. at 742. Appellant contends that as Missik failed to state that he did not give Appellant consent to cash check numbers 8520 and 8558, the State had failed to prove lack of effective consent. Lack of effective consent may be proven by circumstantial evidence. Smith v. State, 710 S.W.2d 947, 948 (Tex.App.-Dallas 1986, no pet.). Here the evidence suggests that all seven checks represented unauthorized transactions. Missik testified that he had not written the checks and the signatures were not his. He did not give consent for the other checks to be cashed. From this evidence, the jury could have reasonably concluded Appellant unlawfully appropriated the money without the effective consent of the owner. See Lacour v. State, 8 S.W.3d 670, 671 (Tex.Crim.App. 2000); Green v. State, 767 S.W.2d 919, 923 (Tex.App.-Beaumont 1989, pet. ref'd). We overrule Issue One. Identity
In Issue Two, Appellant contends that with the exception of the check issued to the Electric Company, the State failed to establish that she was the individual who stole the checks. Specifically, she asserts that absent direct evidence such as fingerprints, handwriting analysis, or direct eyewitness testimony linking her to the crime, the evidence as to identity is insufficient. The identity of an accused may be proved by circumstantial evidence. Dimas v. State, 14 S.W.3d 453, 458 (Tex.App.-Beaumont 2000, pet. ref'd). Here the record demonstrates that Appellant worked at A B during the time the checks were stolen. There were identifying factors on all the checks, and Appellant had ready access to the checks. Missik testified that Appellant's signature on the checks appeared to be her signature; further, she apparently absconded prior to the discovery of the checks. It was within the jury's purview to believe Missik's testimony. Because there was sufficient evidence of identity, we overrule Issue Two. Inconsistent Verdicts In Issue Five, Appellant argues that the evidence is legally insufficient in that the jury acquitted her of the forgery counts thereby indicating an inconsistent verdict. Inconsistent verdicts do not require reversal for legal insufficiency. Jackson v. State, 3 S.W.3d 58, 61 (Tex.App.-Dallas 1999, no pet.). Even in a situation where an inconsistent verdict might have been the result of compromise or mistake, the verdict will not be overturned utilizing appellate speculation or inquiry into the verdict. See id. at 62. Issue Five is overruled. FACTUAL SUFFICIENCY
In Issue Three, Appellant claims that the evidence is factually insufficient to support the conviction. In reviewing the factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). Evidence is factually insufficient, if it is so weak that it would be clearly wrong and manifestly unjust to allow the verdict to stand or the finding of guilt is against the great weight and preponderance of the available evidence. Johnson, 23 S.W.3d at 10. Therefore, the question we must consider in conducting a factual sufficiency review is whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the fact finder's determination or that the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See id. at 11. In performing this review, we are to give due deference to the fact finder's determinations. See id. at 8-9; Clewis, 922 S.W.2d at 136. The fact finder is the judge of the credibility of the witnesses and may "believe all, some, or none of the testimony. . . ." Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). Consequently, we may find the evidence factually insufficient only where necessary to prevent a manifest injustice from occurring. See Johnson, 23 S.W.3d at 9, 12; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). Appellant maintains that the evidence is factually insufficient because there were other theories presented, such as the possibility that the checks were legitimate payroll checks. When a defendant identifies an alternative reasonable hypothesis raised by the evidence, the standard of review remains the same, and a verdict may be overturned only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis, 922 S.W.2d at 129. Here, it was within the province of the jury to believe Missik's explanations concerning the payroll and we must give due deference to the jury's determinations. We overrule Issue Three. INEFFECTIVE ASSISTANCE OF COUNSEL
In Issue Four, Appellant argues that trial counsel did not provide effective assistance of counsel. Successful claims of ineffective assistance of counsel must first demonstrate that counsel was not functioning as counsel guaranteed by the Sixth Amendment in providing reasonably effective assistance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). The second prong of this test requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial, such that there arises a reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have been different. Reasonable probability is a likelihood sufficient to undermine confidence in the outcome. Id. at 694, 104 S.Ct. at 2068. Texas adopted the Strickland test in Wilkerson v. State, 726 S.W.2d 542, 548 (Tex.Crim.App. 1986), cert. denied, 480 U.S. 940 (1987); see also McFarland v. State, 845 S.W.2d 824, 842 (Tex.Crim.App. 1992), cert. denied, 508 U.S. 963 (1993), overruled on other grounds by Mosley v. State, 983 S.W.2d 249, 264 n. 18 (Tex.Crim.App. 1998), cert. denied, 526 U.S. 1070 (1999). The constitutional right to counsel does not guarantee errorless representation. To meet the constitutional standard, counsel must provide reasonably effective assistance. Wilkerson, 726 S.W.2d at 548. In reviewing ineffective-assistance assertions, the totality of representation is examined, as opposed to focusing upon isolated acts or omissions. Ineffective assistance of counsel cannot be established by isolating or separating out one portion of the trial counsel's performance for examination. Bridge v. State, 726 S.W.2d 558, 571 (Tex.Crim.App. 1986). We will not engage in hindsighted comparisons of how other counsel, in particular appellate counsel, might have tried the case. See Wilkerson, 726 S.W.2d at 548. A fair assessment of trial counsel's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances at trial, and to evaluate the conduct from counsel's perspective at the time. Stafford v. State, 813 S.W.2d 503, 506 (Tex.Crim.App. 1991). We must indulge a strong presumption that counsel's conduct falls within the wide range of reasonably professional assistance. An appellant must overcome the presumption that, under the circumstances at trial, the challenged action could be considered sound trial strategy. Strickland, 466 U.S. at 688-89, 104 S.Ct. at 2065; Stafford, 813 S.W.2d 506. Ultimately, an appellant bears the burden of proving ineffective assistance by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999); Bradley v. State, 960 S.W.2d 791, 804 (Tex.App.-El Paso 1997, pet. ref'd). Any allegation of ineffectiveness must be firmly founded and affirmatively demonstrated in the record. Thompson, 9 S.W.3d at 813. In the majority of instances, an appellant cannot rebut the presumption of reasonable assistance, because the record on direct appeal is simply undeveloped and does not adequately reflect the alleged failings of trial counsel. Id. at 813-14. A silent record that provides no explanation for counsel's actions will not ordinarily overcome the strong presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003). Any error in trial strategy will be deemed inadequate representation only if counsel's actions are without any plausible basis. Id. Indeed, an appellate court should not declare trial counsel ineffective without a record showing that counsel had some opportunity to explain himself, absent conduct "so outrageous that no competent attorney would have engaged in it." Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005), quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001), cert. denied, 537 U.S. 1195 (2003). Appellant filed a motion for new trial which alleged generally that the verdict was contrary to the law and the evidence, and not in the interest of justice. Because no hearing was held, the record is silent as to trial counsel's explanation for his actions. Accordingly, Appellant has failed to overcome the presumption of reasonable assistance. See Rylander, 101 S.W.3d at 110-11. We overrule Issue Four. Having overruled all issues presented for review, we affirm the judgment of the trial court.