Opinion
No. 4-04-00882-CR
Delivered and Filed: June 28, 2006. DO NOT PUBLISH.
Appeal from the 399th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-CR-1240, Honorable Pat Priest, Judge Presiding. Affirmed.
Sitting by assignment.
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Annette Gallegos Ortiz appeals the judgment convicting her of theft and sentencing her to six months in a state jail facility, probated for two years. We affirm the trial court's judgment. On October 16, 2002, Ortiz applied with the Texas Department of Human Services for food stamps. On her application, Ortiz listed monthly child support as her only source of income. After her application was approved, Ortiz was issued an electronic benefit transfer card, a Lone Star card, to purchase food and related items. Thereafter, the Department received a report that Ortiz was working. When Ortiz did not respond to a letter requesting verification of her income, her benefits lapsed. Ortiz reapplied on December 16, 2002. Again, Ortiz listed monthly child support as her only source of income. Because the caseworker reviewing Ortiz's application could not independently verify whether indeed Ortiz was working, she accepted Ortiz's statements in her application as true and recertified her as eligible to receive food stamps. From October 2002 to March 2003, Ortiz received approximately $1756 in food stamp benefits. It was subsequently discovered that during these months Ortiz was not working but was collecting unemployment benefits totaling $4979. The department calculated that had Ortiz disclosed her unemployment compensation, she would have received only $242 in food stamp benefits. Consequently, Ortiz received overpayments from the department totaling $1514. In the indictment, the State charged Ortiz with unlawfully appropriating the Lone Star card on six separate occasions, having obtained the amounts "in one scheme and continuing course of conduct, and the aggregate amount of the amounts stolen had a value of [$1500 or more but less than $20,000.]" 1. Ortiz first argues that there is legally insufficient evidence that she unlawfully appropriated the Lone Star card. We disagree. A person commits theft if she unlawfully appropriates property with intent to deprive the owner of property. Tex. Pen. Code Ann. § 31.03(a) (Vernon Supp. 2005). Property is unlawfully appropriated when it is acquired without the effective consent of the owner. Id. §§ 31.01(4)(B), 31.03(b)(1). Consent is not effective if it is induced by deception or coercion. Id. § 31.01(3)(A). On appeal, we evaluate the legal sufficiency of the evidence by viewing the evidence and all rational inferences drawn from 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. Jackson v. Virginia, 443 U.S. 307, 310, 99 S. Ct 2781, 61 L. Ed.2d 560 (1979). In this case, it is undisputed that Ortiz received the Lone Star card based on the information she provided in her applications. It is also undisputed that Ortiz failed to disclose on these applications the unemployment income she was receiving. And, contrary to Ortiz's testimony, the Department's caseworker testified at trial that Ortiz never disclosed to her the unemployment benefits and, further, that she could not verify unemployment compensation through her computer; and never told Ortiz that she could. From this evidence, the jury could have concluded that, when Ortiz submitted her applications, she intended to unlawfully appropriate the Lone Star card by deceit and therefore without the Department's effective consent. 2. Ortiz next argues the trial court erred in denying her motion for a directed verdict because a fatal variance exists between the indictment and the proof presented at trial. Specifically, Ortiz argues that, although she was indicted for theft of the Lone Star card, the State actually proved her guilty of perjury by making false statements in her application for food stamp benefits. Ortiz thus argues the indictment failed to provide her with the necessary notice because it did not identify the "false statement the State was relying upon for conviction." However, as explained in the preceding paragraph, Ortiz's false statements in her applications is legally sufficient evidence to sustain her conviction for theft. Therefore, it was immaterial that Ortiz did not receive adequate notice of a crime — perjury — for which she was not indicted or prosecuted. 3. Ortiz next argues the evidence is factually insufficient because the State failed to prove how it calculated the overpayment amount of $1514. However, Ortiz does not cite any authority that requires the State to prove how it arrived at its calculations; nor does she direct us to any evidence that renders the testimony from the Department's investigator establishing the overage amount factually insufficient. Because there is no evidence contrary to the Department's investigator's testimony regarding the overage amount and the evidence establishing the overage amount is not so weak that it does not support the finding beyond a reasonable doubt, the evidence is factually sufficient. See Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004) (factual sufficiency standard). 4. Finally, Ortiz argues the trial court erred in denying her motion for a mistrial based on prosecutorial misconduct. We again disagree. At several points throughout the trial, the State unsuccessfully attempted to introduce evidence that the Department had previously sanctioned Ortiz in an administrative hearing for fraud. When Ortiz testified on direct that she had never stolen anything in her life, the State, before proceeding with its cross-examination, informed the court that it was going to bring up this previous incident to correct the "false impression" Ortiz had left with the jury. Over objection, the court permitted the inquiry. However, the court warned the State that it needed to prove the extraneous offense beyond a reasonable doubt before the close of the evidence. At the close of the evidence, Ortiz moved for a mistrial, arguing the State had not met its burden. Rather than grant a mistrial, the court instructed the jury as follows:
Yesterday certain questions were asked of Ms. Ortiz, when she was on the witness stand, concerning some alleged prior incident with the folks at [the Department] and, then, some hearing and so forth.And you heard Ms. Ortiz deny any knowledge of such a thing. No evidence has come before you in this trial that any such event ever took place. And so I must and do instruct you: Just simply disregard that evidence. It has no probative value and should not be used by you in any way in this case. The denial of a motion for mistrial is reviewed under an abuse of discretion standard. Trevino v. State, 991 S.W.2d 849, 851 (Tex.Crim.App. 1999). Ordinarily, a trial court's prompt instruction to disregard will cure error associated with an improper question, answer, or argument. Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App. 2000). The jury is presumed to follow the trial court's instruction to disregard unless the comment is so prejudicial or extreme that the instruction was incapable of removing the harm. Gardner v. State, 730 S.W.2d 675, 696 (Tex.Crim.App.), cert. denied, 484 U.S. 905 (1987); Campos v. State, 589 S.W.2d 424, 428 (Tex.Crim.App. 1979). Mistrials should be granted only when the error is "highly prejudicial and incurable." Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App. 2003), cert. denied, 542 U.S. 905 (2004). Although not so prompt, the trial court's instruction to disregard was unequivocal, forceful, and, more important, beneficial, rather than harmful, to Ortiz. After the instruction to disregard, the State did not again allude to the administrative hearing in its argument to the jury, even though Ortiz argued to the jury that the "Judge told you" that "it [was] a lie" that she "[had] stolen before from the welfare people, that she has been convicted in an administrative hearing." Under these circumstances, we hold the trial court did not err in denying Ortiz's motion for a mistrial. The trial court's judgment is affirmed.