Opinion
05-22-00903-CR
01-31-2024
MELISSA ANN KELLY, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish TEX. R. APP. P. 47.2(b)
On Appeal from the Criminal District Court No. 7 Dallas County, Texas Trial Court Cause No. F-2000513-Y.
Before Carlyle, Goldstein, and Breedlove, Justices.
MEMORANDUM OPINION
MARICELA BREEDLOVE, JUSTICE.
Appellant Melissa Ann Kelly was convicted of theft of money in an amount of at least $300,000 after a jury trial and sentenced to a term of imprisonment of seven years. Appellant appeals, complaining that the evidence was legally insufficient to support the conviction and that appellant's common law right to allocution was violated. We affirm the trial court's judgment as modified.
I. BACKGROUND
From October 15, 2014, until March 2018, appellant worked for Charles Williams, and during this time appellant and Williams engaged in a volatile working relationship. Appellant was initially hired to assist in the front office, handling reception and payment tasks, and was eventually given bookkeeping responsibilities for his entities. During the course of her employment, appellant used various company credit cards to make over $300,000 in personal purchases and issued herself duplicative paychecks, all of which she hid in the companies' financial books. In March of 2018, Williams' wife hired Lori Deuerling, an accountant, to look into the companies' financial position. Deuerling discovered the transactions made by appellant and notified Williams. Williams then reported the charges to his credit card company, as well as to the authorities. Appellant alleged her actions were done with Williams' knowledge and consent.
Appellant was charged with theft of money in an amount of at least $300,000 and pled not guilty. She was tried before a jury, found guilty, and sentenced to seven years in prison. Appellant moved for a new trial, which was overruled by operation of law. Tex.R.Civ.P. 329b(c). On September 7, 2022, she filed this appeal. In three issues, appellant argues that: (1) the trial court's judgment must be reformed or modified to reflect that appellant entered a plea of not guilty; (2) the trial court's judgment of conviction must be reversed or vacated and an order of acquittal entered because it was based on legally insufficient evidence; and (3) the trial court violated appellant's common law right to allocution such that appellant should receive a new punishment hearing.
II. LEGAL SUFFICIENCY
In her second issue, appellant argues that the evidence is legally insufficient to support the verdict because the record does not contain evidence that the guilty verdict was rational to the high degree of certainty required by the beyond-a-reasonable-doubt burden of proof.
Because appellant's first issue requests only a modification of the judgment, we discuss that issue following the discussion of appellant's two substantive issues.
A. Standard of Review
In determining whether the evidence is sufficient to support a criminal conviction, we apply well-established standards. See Jackson v. Virginia, 443 U.S. 307, 316 (1979). We view the evidence in the light most favorable to the verdict and determine whether a rational jury could have found all the elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 313; Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). The jury, as the fact-finder, may make reasonable inferences from the evidence presented at trial in determining appellant's guilt. Hooper v. State, 214 S.W.3d 9, 14-15 (Tex. Crim. App. 2007). When there is conflicting evidence, we presume the fact-finder resolved those conflicts in favor of the verdict and defer to that resolution so long as it is supported by the evidence. Jackson, 443 U.S. at 326; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
We also defer to the trier of fact's determinations of witness credibility and the weight to be given their testimony. Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 899. Our role as an intermediate appellate court is restricted to guarding against the "rare occurrence when a factfinder does not act rationally." Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010) (quoting Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009)).
B. Discussion
To convict appellant of theft, the State had to prove that appellant unlawfully appropriated another's property with intent to deprive the owner of property. See Tex. Penal Code Ann. § 31.03(a). Of particular importance in this case, appropriation of property is unlawful if it is without the owner's effective consent. Id. § 31.03(b)(1). To support her argument, appellant cites to testimony by Williams that he did not expressly tell appellant she could not use company cards for personal purchases and that Williams himself may have used company money for personal purchases. Appellant also points to evidence that she was never fired, which further supports her contention that she had Williams' consent-implied if not explicit- and that she was always treated more favorably than other employees. However, the record contains conflicting evidence, including Williams' testimony, that it was understood business funds were not to be used for personal purchases and Williams did not know about appellant's personal use of company funds. Testimony of Williams' other current and former employees supports the inference that appellant knew employees were not allowed to make personal purchases with business funds without receiving express consent from Williams and an agreement to pay the money back with interest. The existence of contrary evidence is not enough to sustain a sufficiency of the evidence challenge. See Lee, 186 S.W.3d at 656 (citing Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001)). Moreover, in conducting a sufficiency review, "our role is not to become a thirteenth juror." Isassi, 330 S.W.3d at 638. Here, the jury was charged with weighing the evidence and assessing the witnesses' credibility, and we do not reweigh the evidence. See Cardenas v. State, 30 S.W.3d 384, 389-390 (Tex. Crim. App. 2000). We overrule appellant's second issue.
III. ALLOCUTION
In her third issue, appellant argues that even if the court overrules her legal sufficiency challenge, the trial court violated appellant's common law right of allocution, and that as a result, she is entitled to a new punishment hearing. During the punishment hearing, the trial court asked appellant's counsel if counsel had "any legal reason why sentence cannot be pronounced against [his] client at this time?" Appellant's counsel responded that he did not.
A. Applicable Law
"Allocution" refers to the trial court's asking a criminal defendant to speak in mitigation of the sentence to be imposed, but it has also "come to denote the accused person's speech in mitigation of the sentence, rather than the judge's address asking the accused to speak." Johnson v. State, No. 05-21-00785-CR, 2023 WL 3000572, at *2 (Tex. App.-Dallas Apr. 19, 2023, no pet. h.) (mem. op., not designated for publication) (citing Eisen v. State, 40 S.W.3d 628, 632 (Tex. App.-Waco 2001, pet. ref'd) (quoting A Dictionary of Modern Legal Usage 45 (Bryan A. Garner ed., 2nd ed., Oxford 1995))). Allocution is codified in current Texas law in article 42.07 of the code of criminal procedure. Id. Under that provision, "Before pronouncing sentence, the defendant shall be asked whether he has anything to say why the sentence should not be pronounced against him." Tex. Code Crim. Proc. Ann. art. 42.07. Pursuant to the statute, the "only reasons" a sentence cannot be pronounced are:
(1) That the defendant has received a pardon from the proper authority, on the presentation of which, legally authenticated, he shall be discharged;
(2) That the defendant is incompetent to stand trial; and if evidence be shown to support a finding of incompetency to stand trial, no sentence shall be pronounced, and the court shall proceed under Chapter 46B; and
(3) When a person who has been convicted escapes after conviction and before sentence and an individual supposed to be the same has been arrested he may before sentence is pronounced, deny that he is the person convicted, and an issue be accordingly tried before a jury, or before the court if a jury is waived, as to his identity.Id.
B. Discussion
"To complain on appeal of the denial of the right of allocution, whether statutory or one claimed under the common law, controlling precedent requires that a defendant timely object." Johnson, 2023 WL 3000572, at *2 (quoting Casselberry v. State, No. 05-22-00014-CR, 2022 WL 14381667, at *2 (Tex. App.-Dallas Oct. 25, 2022, no pet.) (mem. op., not designated for publication); see also Gallegos-Perez v. State, No. 05-16-00015-CR, 2016 WL 6519113, at *2 (Tex. App.-Dallas Nov. 1, 2016, no pet.) (mem. op., not designated for publication). Here, the trial court gave appellant an opportunity to speak at the punishment hearing regarding reasons why the sentence should not be pronounced. Appellant did not offer any reason in response to the court's question, nor did she object to the denial of statutory or common law allocution. She thus failed to preserve this issue for appeal. Accordingly, appellant's third issue is overruled.
IV. MODIFICATION OF JUDGMENT
In her third point, appellant argues that the judgment should be modified to reflect that she pled "not guilty." The State agrees. The judgment currently states that appellant pled "guilty," but a review of the record confirms that she pled "not guilty."
We have the authority to correct the trial court's judgment to make the record "speak the truth" when we have the necessary data and information to do so. See Tex. R. App. P. 43.2; Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.-Dallas 1992, pet. ref'd). The record here includes such information. We therefore sustain appellant's first point and modify the judgment to reflect that appellant pled "not guilty."
V. CONCLUSION
We modify the judgment to reflect that appellant pled "not guilty." As modified, we affirm the trial court's judgment.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
Replace "GUILTY" with "NOT GUILTY" under "Plea to Offense" As REFORMED, the judgment is AFFIRMED.