Opinion
No. 14-03-00186-CR.
Memorandum Opinion filed March 18, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the County Criminal Court at Law No. 9 Harris County, Texas, Trial Court Cause No. 1137824 Affirmed Judgment rendered.
Panel consists of Justices YATES, ANDERSON, and HUDSON.
MEMORANDUM OPINION
A jury found appellant Daniel Roberto Ruiz guilty of theft of property with a value of over fifty dollars and under five hundred dollars, a Class B misdemeanor, and the court sentenced him to two days' confinement in the Harris County Jail, with credit for time served, and a $500.00 fine. In a single point of error, appellant challenges the sufficiency of the evidence to support his conviction. We affirm.
See TEX. PEN. CODE ANN. § 31.03(a), (e)(2)(A)(i) (Vernon Supp. 2004).
FACTUAL BACKGROUND
Stanley Crawford, a loss-prevention officer at Home Depot, observed appellant select five items from the electrical aisle — two wall plates, one four-way digital converter, and two timer switches — and put them into the basket of a shopping cart. The total cost of these items was approximately $70.00. Appellant then went to the store's garden center, which was immediately adjacent to the electrical area. Once inside the garden center, appellant placed three bags of garden soil, each weighing eighteen to twenty pounds, on top of the electrical items in the cart. The soil cost $3.30 per bag. After stacking the bags one on top of the other, appellant walked to the garden center cash register, located just inside the gate. While appellant was at the register, his wife was looking at plants outside, and appellant was talking with his wife about whether she was going to buy something. According to Home Depot's policies, female cashiers are not required to lift heavy items from the baskets. Instead, they normally ask whether that is all the customer has, and if the customer replies, "yes," they proceed to ring up what they can see. Bathsheba Friday, the cashier who rang up appellant's garden soil, looked at the soil, walked around to see whether there was anything in the bottom of the basket, but did not notice anything else because of the way the bags were placed. Friday testified she complied with store policy by asking "the customer if that was all he had [and] he said, yes and that was it." Friday completed the transaction and told appellant the total amount. Appellant paid by credit card, signed the receipt, and put it in his wallet. After Friday rang up the merchandise, appellant's wife walked the basket out of the gate, and appellant followed. After Crawford confirmed appellant had not paid for the electrical items, he approached appellant and said, "Well, sir, I think there [are] some items that you forgot to pay for." Appellant responded he had made a mistake and had forgotten to pay for the items. Crawford asked appellant to return to the store. Appellant identified himself as a Houston Police Department employee and initially refused to return to the store. Crawford eventually convinced him to return, and they went to the security office where appellant spoke with the manager and someone from the Harris County Sheriff's Office. At trial, appellant testified he did not intend to steal the items. He stated he did not mean to conceal the electrical equipment, but just got the soil and put it in the basket. He did not remember the cashier asking him whether the soil was everything he had. He was talking with his wife, asking her whether she was going to get anything. Appellant did admit he never told the cashier he had electrical items in the basket in addition to the soil.DISCUSSION
In a single point of error, appellant contends the evidence is insufficient to support his conviction. He does not specify whether he is challenging the legal or factual sufficiency of the evidence, but cites case law suggesting he is attacking both. In his conclusion, he does not limit himself to requesting a new trial, but also requests "such other relief as the Court may deem appropriate." Accordingly, we address both legal and factual sufficiency. We apply different standards to each. When reviewing the legal sufficiency of the evidence, this court must view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 So. Ct. 2781, 2789 (1979); Garrett v. State, 851 S.W.2d 853, 857 (Tex.Crim.App. 1993). This standard of review applies to cases involving both direct and circumstantial evidence. King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995). When a defendant challenges the factual sufficiency of the elements of an offense, the correct standard we must follow requires us to determine whether (1) the proof of guilt is so obviously weak as to undermine confidence in the jury's verdict, or (2) the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Zuliani v. State, 97 S.W.3d 589, 593-94 (Tex.Crim.App. 2003); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). We must accord due deference to the fact finder's determinations, particularly those determinations concerning the weight and credibility of the evidence. Johnson, 23 S.W.3d at 9. The verdict should be set aside only in order to prevent a clearly wrong and unjust result. See Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim.App. 1997). The essential elements of Ruiz's conviction for theft are: (1) he unlawfully appropriated property; (2) with intent to deprive the owner of the property; and (3) the value of the property was between fifty and five-hundred dollars. See TEX. PEN. CODE ANN. § 31.03(a), (e)(2)(A)(i) (Vernon Supp. 2004); see also Heimlich v. State, 988 S.W.2d 382, 384 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd) (stating first two elements and third element for higher grade offense). Ruiz challenges only the second element; he contends the State failed to prove he had the requisite intent. "`Mental culpability is of such a nature that it generally must be inferred from the circumstances under which a prohibited act or omission occurs.' A defendant's mental state `was concealed within his own mind and can only be determined from his words, acts, and conduct.'" Moore v. State, 969 S.W.2d 4, 10 (Tex.Crim. App. 1998) (citations omitted). It is for the trier of fact to determine which circumstances to accept as proven and whether to draw the inference a defendant possessed the requisite mental state. See Dillon v. State, 574 S.W.2d 92, 95 (Tex.Crim.App. [Panel Op.] 1978) (stating same in context of considering awareness-of-risk element in involuntary manslaughter case). This court will not overturn such an inference, drawn on the whole of the circumstances, because one witness testified to the possibility that the inference could be false although soundly supported by the circumstances. See id. The following evidence supports the inference appellant intended to deprive the complainant of its property:I. Appellant placed the garden soil bags directly on top of each other and on top of the electrical merchandise, thereby concealing the electrical merchandise so that the cashier's inspection of the shopping basket did not reveal the items;
II. Appellant went to the garden area and then to the cashier immediately after placing the electrical items in the basket, thus making it unlikely he had forgotten about the electrical items;
III. Appellant did not tell the cashier about the items when she asked him if there was anything else;
IV. Appellant paid for three items totaling about $10.00, when the cost of electrical items was approximately $70.00, supporting the inference appellant should have realized he had not been charged for everything in the basket, particularly when he paid by credit card and signed the receipt;
V. When Crawford confronted appellant, appellant initially refused to return to the store and invoked his employer's identity, supporting the inference appellant did not have a clear conscience.We conclude a rational jury could have found appellant intended to deprive Home Depot of its property. The evidence is legally sufficient to support the jury's verdict. Appellant points to the following evidence indicating he did not possess the requisite mental state:
I. His apology, when asked about having not paid, for making an honest mistake;
II. His being distracted and not looking at the credit card receipt after the cashier rang up the items in the shopping basket;
III. His wife's having control of the shopping cart at or after the time appellant was paying for the garden soil;
IV. Home Depot's policy of not requiring payment before leaving the garden area on the basis that a customer might be going to add plants to items purchased;
V. His wife's walking toward the shopping basket with items in her hands, as suggesting she still was shopping.The preceding points, however, relate to appellant's credibility and the weight accorded to give the State's and appellant's evidence. What weight to give contradictory testimonial evidence is within the sole province of the trier of fact, because weight turns on the evaluation of credibility and demeanor. Cain v. State, 958 S.W.2d 404, 408-409 (Tex.Crim. App. 1997). We must show deference to the jury's findings. Id. at 409. A decision is not manifestly unjust merely because the jury resolved the conflicting views of evidence in favor of the State. Id. at 410. Having reviewed the evidence in a neutral light, we conclude the proof of guilt is not so obviously weak as to undermine confidence in the jury's verdict, and the proof of guilt is not greatly outweighed by contrary proof. See Zuliani, 97 S.W.3d at 593-94; Johnson, 23 S.W.3d at 11. The evidence was factually sufficient to support appellant's conviction. We overrule appellant's sole point of error. We affirm the judgment of the trial court.