Opinion
NUMBER 13-16-00310-CR
09-28-2017
DANIEL LOPEZ, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 347th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Contreras and Hinojosa
Memorandum Opinion by Justice Hinojosa
Appellant Daniel Lopez appeals his conviction for theft of property valued at greater than $1,500, but less than $20,000. See Act of May 29, 2011, 82d Leg., R.S., ch. 1234, § 21, 2011 Tex. Gen. Laws 3302, 3310 (amended 2015) (current version at TEX. PENAL CODE ANN. § 31.03(e)(4) (West, Westlaw through 2017 R.S.)). The offense was enhanced to a second-degree felony by appellant's status as a habitual felony offender. See TEX. PENAL CODE ANN. § 12.425(b) (West, Westlaw through 2017 R.S.). A jury returned a guilty verdict, and the trial court sentenced appellant to ten years' confinement in the Texas Department of Criminal Justice-Institutional Division. By two issues, which we have renumbered, appellant argues: (1) the evidence was legally insufficient to support his conviction; and (2) the trial court abused its discretion when it ruled that appellant's voir dire questions were improper commitment questions. We affirm.
In appellate cause number 13-16-0311-CR, appellant appeals a separate conviction for theft, which resulted in a fifteen-year prison sentence. The trial court ordered the respective sentences to be served consecutively.
I. BACKGROUND
Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4.
Appellant was indicted for theft of a diamond ring from a jewelry store in Corpus Christi, Texas. The evidence at trial showed that appellant entered Reeds Jewelers in La Palmera Mall, accompanied by a woman, later identified as Velma Valdez, and a young boy. Maria Leal, a sales associate at the store, assisted them. According to Leal, Valdez asked to view a three-carat diamond solitaire ring. There were no such rings in the store, so Leal showed her a two-carat diamond ring. Valdez tried on the ring before returning it to Leal. Leal then showed Valdez a one and one-half carat diamond ring. Valdez viewed the ring and then gave it to appellant. Appellant placed the ring on Valdez's finger before handing what appeared to be the same ring back to Leal. Next, Leal showed Valdez a diamond earring at her request. At this point, appellant told Valdez, "We got to go. They are waiting for us at Dillard's." Appellant then left the store.
Leal testified that a co-worker approached her the next day showing her a ring that did not belong in the case. Leal discovered that it was a "fake ring." The "fake ring" was located in the display case where the diamond ring, handled by appellant the previous day, should have been. Leal testified that appellant and Valdez were the last customers to view the ring. Leal later viewed surveillance video which showed appellant placing the ring on Valdez's finger. Leal recalled that Valdez was wearing a number of rings. She stated that "they did a real switch. They handed me back a ring and I put it in the case."
Oliva Mora, the former store manager, testified that the ring discovered in the store was "very light in weight" and had a different tag than the jewelry in the store. Mora testified that the missing ring's retail value was $11,350. She called the Corpus Christi Police Department to report the theft.
Hours after leaving Reeds Jewelers, appellant and Valdez went to Cash America Pawn in Corpus Christi. Tracy Saldana, the assistant manager at the store, testified that the couple was seeking a loan on a ring, and they agreed to pawn it for $1,250. Mora later accompanied a Corpus Christi Police detective to the pawn store where she identified the missing ring. The jury returned a guilty verdict. This appeal followed.
II. LEGAL SUFFICIENCY
By his first issue, appellant argues that the evidence was legally insufficient to support his theft conviction.
A. Standard of Review and Applicable Law
"The standard for determining whether the evidence is legally sufficient to support a conviction is 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Johnson v. State, 364 S.W.3d 292, 293-94 (Tex. Crim. App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in Jackson); see Brooks v. State, 323 S.W.3d 893, 898-99 (Tex. Crim. App. 2010) (plurality op.). The fact-finder is the exclusive judge of the credibility of witnesses and of the weight to be given to their testimony. Brooks, 323 S.W.3d at 899; Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). Reconciliation of conflicts in the evidence is within the fact-finder's exclusive province. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000). We resolve any inconsistencies in the testimony in favor of the verdict. Bynum v. State, 767 S.W.2d 769, 776 (Tex. Crim. App. 1989) (en banc).
We measure the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Cada v. State, 334 S.W.3d 766, 773 (Tex. Crim. App. 2011) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). Such a charge is one that accurately 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.
Under a hypothetically correct charge, the State was required to prove beyond a reasonable doubt that appellant unlawfully appropriated property of $1,500 or more but less than $20,000 with the intent to deprive the owner of the property. See Act of May 29, 2011, 82d Leg., R.S., ch. 1234, § 21, 2011 Tex. Gen. Laws 3302, 3310 (amended 2015).
"Appropriate" includes "to acquire or otherwise exercise control over property other than real property." TEX. PENAL CODE ANN. § 31.01(4)(B) (West, Westlaw through 2017 R.S.). "Deprive" includes "to withhold property from the owner permanently or for so extended a period of time that a major portion of the value or enjoyment of the property is lost to the owner." Id. § 31.01(2)(A). "Appropriation of property is unlawful if . . . it is without the owner's effective consent." Id. § 31.03(b)(1). An owner is "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[.]" Id. § 1.07(a)(35)(A) (West, Westlaw through 2017 R.S.).
B. Analysis
Appellant argues the evidence fails to establish that he "appropriated the ring from the owner with intent to deprive the owner of its use[.]" Rather, according to appellant, the evidence established only that he "assisted in the sale of the ring in question, but not that he ever took the ring." We disagree.
Appellant accompanied Valdez to a pawn store where they pawned a diamond ring that was later identified as the ring stolen from Reeds Jewelers. A defendant's unexplained possession of recently stolen property permits an inference that the defendant is the one who committed the theft. See Rollerson v. State, 227 S.W.3d 718, 725 (Tex. Crim. App. 2007); Chavez v. State, 843 S.W.2d 586, 589 (Tex. Crim. App. 1992). Appellant offered no explanation for how he came into possession of the stolen ring. In addition, appellant was seen placing the diamond ring on Valdez's finger. Shortly after appellant handled the diamond ring, store employees discovered a "fake ring" in its place. The jury could have reasonably inferred from this evidence that appellant switched the diamond ring with a fake ring. Viewing the evidence in the light most favorable to the prosecution, we conclude that a rational trier of fact could have found beyond a reasonable doubt that appellant appropriated the diamond ring with the intent to deprive the owner of the property. See Johnson, 364 S.W.3d at 293-94.
We also note that the jury charge contained an instruction concerning the law of parties. Under the law of parties, the State does not have to prove that a person physically committed the crime, but the evidence must be sufficient to show that even though the criminal conduct was performed by another, the defendant was still criminally responsible for that other person's behavior. TEX. PENAL CODE ANN. § 7.01(b)(c) (West, Westlaw through 2017 R.S.). To be criminally responsible for another person's conduct, a person must have acted with the "intent to promote or assist the commission" of the offense by soliciting, encouraging, directing, aiding, or attempting to aid the other person to commit the offense. Id. § 7.02(a)(2) (West, Westlaw through 2017 R.S.). To determine whether the defendant was a party to the offense, the fact finder may "look to events occurring before, during, and after the commission of the offense" that show an "understanding and common design to do the prohibited act." Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994). Circumstantial evidence can assist the fact finder in establishing party status. See id.
Appellant was present at Reeds Jewelers and assisted Valdez in viewing and handling the stolen ring. He also accompanied Valdez to the pawn store hours later where the ring was sold. Based on this evidence, the jury could have found that appellant directed or aided Valdez in the theft of the diamond ring. See TEX. PENAL CODE ANN. § 7.01(a)(2). Accordingly, we conclude that a rational trier of fact could have found that appellant was criminally responsible for the acts of Valdez under the law of parties. See Johnson, 364 S.W.3d at 293-94.
We overrule appellant's first issue.
III. VOIR DIRE
By his second issue, appellant argues the trial court "erred in sustaining objections of the State" to appellant's voir dire questions on the grounds that they were improper commitment questions.
A. Standard of Review and Applicable Law
We review a trial court's ruling on an allegedly improper commitment question during voir dire for an abuse of discretion. Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002). An attorney may not "attempt to bind or commit a venire member to a verdict based on a hypothetical set of facts." Lydia v. State, 109 S.W.3d 495, 497 (Tex. Crim. App. 2003). "Commitment questions are those that commit a prospective juror to resolve, or to refrain from resolving, an issue a certain way after learning a particular fact." Standefer v. State, 59 S.W.3d 177, 179 (Tex. Crim. App. 2001). While these types of questions generally "elicit a 'yes' or 'no' answer, an open-ended question can be a commitment question if the question asks the prospective juror to set the hypothetical parameters for his decision-making." Id. at 180. Commitment questions that attempt to bind prospective jurors to a position, using a hypothetical or otherwise, are improper and "serve no purpose other than to commit the jury to a specific set of facts before the presentation of any evidence at trial." Lydia, 109 S.W.3d at 497.
Not all commitment questions, however, are improper. Standefer, 59 S.W.3d at 179-83; Sanchez v. State, 165 S.W.3d 707, 712 (Tex. Crim. App. 2005). "A commitment question can be proper or improper, depending on whether the question leads to a valid challenge for cause." Lydia, 109 S.W.3d at 498. Attorneys may ask prospective jurors whether they can follow a law that requires certain types of commitments from jurors. Id. For example, an attorney may ask veniremembers whether they could follow a law that required them to: disregard illegally obtained evidence; follow instructions requiring corroboration of accomplice witness testimony; consider the full range of punishment available, or follow a law that precludes them from holding against defendant his failure to testify. Id. Commitment questions are improper when (1) the law does not require a commitment or (2) when the question adds facts beyond those necessary to establish a challenge for cause. Id.
We do not view voir dire questions in isolation. Lee v. State, 206 S.W.3d 620, 624 (Tex. Crim. App. 2006). Rather, we consider the voir dire as a whole in determining whether a question constitutes an improper commitment question. See Halprin v. State, 170 S.W.3d 111, 119 (Tex. Crim. App. 2005).
B. Pertinent Facts
The following exchange occurred during voir dire examination:
APPELLANT'S COUNSEL: Now is there anybody that is going to have a problem looking at video and listening to testimony that is different from what you see in the video? Say, for example, you are looking at the video and you are watching what is going on in the video and the witness says, "I saw the defendant steal a watch." You are looking at that video and you don't see anybody stealing a watch. Can you look at the evidence, all of the evidence when you make your verdict[?] Can I ask you all to do that? Okay. So is there anybody that is going to have a problem looking at evidence such as video that might be contrary to what a witness testifies to?
PROSECUTOR: I am going to object here to improper commitment.
TRIAL COURT: Sustained.
. . . .
APPELLANT'S COUNSEL: Well, I think that the court will tell you in their charge that the State has the duty of proving beyond a reasonable doubt, beyond a reasonable doubt, that the defendant is guilty. So do you think something like video showing that he did not take anything would be useful to you and coming up with your kind of decision?
PROSECUTOR: Objection. Improper commitment.
TRIAL COURT: Sustained. Don't answer.
. . . .
APPELLANT'S COUNSEL: That's right. Listen to both sides. Can you do that?
VENIREMEMBER: Yes.
APPELLANT'S COUNSEL: All of the evidence?
VENIREMEMBER: I believe so.
APPELLANT'S COUNSEL: The video evidence?
PROSECUTOR: Objection. Commitment.
TRIAL COURT: Sustained.
C. Analysis
Appellant's first question was designed to bind the panel to particular facts—that video evidence would not show appellant stealing anything—in an effort to commit the panel on whether those facts would aid in resolving the credibility of a witness's contrary testimony. In context, we view appellant's second and third questions as short-hand renditions of the first. See Lee, 206 S.W.3d at 624 (viewing multiple questions together in reviewing whether they were improper commitment questions). The jury is tasked with considering all evidence in making its decision. Therefore, it is not improper for counsel to ask if a prospective juror can consider all of the evidence in answering a special issue. See Halprin, 170 S.W.3d at 119. However, it is improper to ask a potential juror how she would weigh a particular type of evidence. See Standefer, 59 S.W.3d at 181 ("[W]hether a juror considers a particular type of evidence to be mitigating is not a proper area of inquiry."). Appellant's questions did not address a potential bias against an applicable legal principle but sought to commit veniremembers regarding how they would respond in the face of video evidence that does not show the commission of a theft. Appellant's questions were improper commitment questions because they constituted a back-door way of asking the veniremembers how they would weigh a particular type of evidence. See id.; see also Garcia v. State, No. 05-07-00345-CR, 2008 WL 2469273, at *2 (Tex. App.—Dallas June 20, 2008, pet. dism'd) (mem. op., not designated for publication) (concluding that the following was an improper commitment question: "Now, what I want to offer to you is, is there any of you that have problems with the idea of taking ballistics and if the police tell you that this is what happened, and it's different from the testimony from the witness stand, do any of you have trouble with the idea[?]").
We conclude that the trial court did not abuse its discretion in sustaining the State's objections to appellant's voir dire questions. See Barajas v. State, 93 S.W.3d 36, 38. We overrule appellant's second issue.
IV. CONCLUSION
We affirm the trial court's judgment.
LETICIA HINOJOSA
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 28th day of September, 2017.