No. 05-03-00561-CR.
Opinion Filed February 23, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law No. 5 Collin County, Texas Trial Court Cause No. 005-84112-02. Affirm.
Before Justices MOSELEY, O'NEILL, and RICHTER.
Opinion By Justice O'NEILL.
A jury convicted Beau Michael Hanna of theft of property valued at $500 or more but less than $1500. The trial court sentenced appellant to ninety days in the county jail, probated for one year. In two points of error, appellant contends the evidence is legally and factually insufficient to support the conviction. We will affirm the trial court's judgment.
Background
Gary Godshaw, a loss-prevention investigator for Payless Shoe Source, Inc. (PSS) was contacted by a district manager about questionable refund activity at one of its Plano stores. The district manager said the questionable activity was directed toward one primary sales associate who worked at the store, naming appellant as the suspect. Godshaw began his investigation on June 4, 2002. He found that appellant had been transferred to the Plano store in February 2002. Godshaw reviewed the documentation on all refunds, void items, and item corrections from February 2002 to June 2002. Godshaw testified he found twenty fraudulent cash refunds were made from March 14, 2002 to May 25, 2002, totaling $950, and each of the fraudulent refunds was completed under appellant's employee identification number (EID). Godshaw testified PSS's policy dictates that each associate is given an EID and password to log onto the register and the main computer in the back of the store. The EID has to be entered into the register before beginning any type transaction. The associate enters his EID and password, completes the transaction, then gets a printed receipt from the register. Godshaw testified that with credit card transactions, when a customer returns an item, the customer is to be given a credit on his or her card and not a cash refund. Godshaw found that, in direct violation of PSS's policy, several of the fraudulent refunds were initially credit card transactions that were refunded in cash. Godshaw testified he tracked the transaction numbers from the fraudulent refund receipts to the actual transaction that had occurred either by a sales receipt or though a computer tape of their system. The items listed on the refund receipts were not physically in the store's inventory. Godshaw testified he was never able to find any of the pieces of merchandise that were allegedly returned for cash in the store's inventory. Godshaw used the dates on the refund receipts to check employee time records. Appellant was working in the store on all of the dates when the fraudulent refunds were made, and time records showed appellant was alone in the store on eight of those dates. Godshaw testified three other associates and a store manager also worked at that store between March and May 2002. Although the other associates did not work the exact same shift as appellant worked, there was a possibility any one of them had access to appellant's EID and password. Appellant was not responsible for opening or closing the store, and he did not have keys to the store. Godshaw testified appellant's signature and handwritten initials appeared on some of the refund receipts. Other receipts did not have any associate's signature. However, appellant's EID number appears on all twenty of the fraudulent refund receipts printed from the register. Godshaw testified that when he asked appellant about the questionable refunds, appellant shrugged his shoulders and said he did not know anything about them. Godshaw testified he did not give appellant consent to take cash or merchandise from PSS. Appellant denied that his signature appeared on any of the refund receipts or that he was the person who made the fraudulent refunds. Appellant testified he had worked part-time for PSS for nine months before the allegations of theft were made. Appellant acknowledged that his EID appeared on all of the refund receipts. Appellant testified he did not know why his EID appeared on the refund receipts, and that none of the handwriting on the receipts was his. Appellant testified three other associates worked in the store, he knew their EIDs and they knew his EID, and he did not know who used his EID to make the refunds. Appellant testified he never worked alone in the store. When the others clocked out for lunch, they usually ate lunch in the back room, with appellant up front helping customers. Appellant testified he did not need his EID to work the register because the associates only used their passwords to log onto the register, and all of the associates knew everyone else's password. Appellant denied knowing who made the false refunds. Appellant testified he told Godshaw he had never seen the refund receipts and did not know anything about them. Applicable Law
In reviewing the legal sufficiency of the evidence, we examine 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 offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). The standard is the same for both direct and circumstantial evidence cases. See Edwards v. State, 813 S.W.2d 572, 575 (Tex. App.-Dallas 1991, pet. ref'd). In a factual sufficiency review, we determine whether a neutral review of all the evidence demonstrates the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). The jury is the exclusive judge of the facts provided and of the weight to be given to the testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). While the reviewing court has some authority to disregard evidence that supports the verdict, it may not substitute its own determination for that of the jury. See Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex.Crim.App. 2002), cert. denied, 123 S.Ct. 1901 (2003); Scott v. State, 934 S.W.2d 396, 399 (Tex. App.-Dallas 1996, no pet.). The State was required to prove beyond a reasonable doubt that appellant unlawfully appropriated property, valued at $500 or more but less than $1500, with intent to deprive the owner of the property and without the owner's effective consent. See Tex. Pen. Code Ann. § 31.03(a), (e)(3) (Vernon Supp. 2004). Discussion
Appellant argues the evidence is legally and factually insufficient to support the conviction because only circumstantial evidence linked him to the allegedly false transactions. Appellant argues that in the absence of direct evidence linking him to the offense, guilt can only be found upon inference that cannot be otherwise explained by a reasonable hypothesis. Appellant asserts there were several reasonable hypotheses that could be drawn from the evidence presented, such as 1) the merchandise could have been taken into the store for a refund and later resold; 2) someone took the returned merchandise since there was no evidence the register was "short" or the store's daily books did not balance; or 3) other employees could have committed the fraudulent transactions while working at the store with appellant. Appellant argues the State failed to show the suspected refunds were fraudulent or that appellant was the individual connected with those transactions. The State responds the evidence is legally and factually sufficient to support appellant's conviction, and the jury was free to believe the complainant's testimony and disbelieve appellant's testimony. The alternative reasonable hypothesis construct is no longer used in the appellate evaluation of the legal sufficiency of the evidence. See Geesa v. State, 820 S.W.2d 154, 156 (Tex.Crim. App. 1991), overruled on other grounds by Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App. 2000). In a factual sufficiency analysis, the existence of alternative reasonable hypotheses raised by the record may be considered, but the existence of such hypotheses is not determinative. See Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999); see also Goodman v. State, 66 S.W.3d 283, 298 n. 16 (Tex.Crim.App. 2001) (court never held old alternative reasonable hypothesis test must be satisfied for evidence to be factually sufficient). In this case, there was evidence that twenty fraudulent cash refunds were made during the time appellant worked for the store. The receipts were generated from the register, each receipt had appellant's EID printed on it, and some had either appellant's signature or handwritten initials on them. Godshaw testified an associate's EID and password had to be entered before a transaction could be completed at the register, and that the items listed on the receipts as being returned were not found in the store's inventory. Appellant's time records showed he worked in the store on all the dates the cash refunds were made, and appellant was alone in the store on eight of those dates. Appellant denied making any of the fraudulent refunds, and testified that at least one other associate was in the store whenever appellant worked in the store. Appellant claimed the store employees knew each other's passwords, and someone else could have entered his password into the register to issue the false refunds. It was the fact finder's role to weigh the credibility of witnesses and to reconcile any conflicts in the evidence. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003); Goodman, 66 S.W.3d at 287. We conclude a rational trier of fact could have found the evidence presented embraced the essential elements of the offense, and the proof of guilt is not greatly outweighed by contrary proof. See Sanders, 119 S.W.3d at 820; Johnson, 23 S.W.3d at 11. Accordingly, we overrule appellant's two points of error. We affirm the trial court's judgment.