Opinion
No. 05-09-00635-CR
Filed: April 9, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the County Criminal Court No. 2 Dallas County, Texas Trial Court Cause No. MA07-26168-B.
Before Justices Moseley, Bridges, and Fillmore Opinion By Justice Fillmore.
OPINION
A jury convicted appellant Stacey Renee Smith of theft of property valued at $500 or more, but less than $1500. The trial court sentenced appellant to180 days' confinement in the county jail, probated for twenty-four months, and ordered appellant to pay a $500 fine and $734 in restitution. In a single issue, appellant contends the evidence is factually insufficient to support the conviction. We affirm the trial court's judgment. Background Sally Davison, the complainant, operated a jewelry business for thirty-five years. Davison testified she sold her custom-made jewelry through wholesale showrooms in the Apparel Marts in Dallas, New York, and California. She also entered into agreements with other jewelry merchants to sell jewelry on consignment. According to Davison, her routine practice was to make two color photocopies of each piece of jewelry being consigned or sold and to provide one of the photocopies to the consignee or buyer at the time the jewelry was delivered. When items were placed on consignment, Davison would periodically check with the consignee to determine whether the items had sold. Davison testified that, if she wanted consigned merchandise returned, she normally called the consignee and the merchandise was returned. When consigned items were returned, Davison noted "RTV," or returned to vendor, on her photocopy of the item. In early 2007, Davison decided to sell her jewelry inventory and retire. Davison contacted Gayle Abernethy, a jewelry consultant who had worked for Davison on an as needed basis since 1992, about her retirement plans. Abernethy had met appellant at the gym and knew appellant was also in the jewelry business. Abernethy referred appellant to Davison as someone who might be able to assist Davison in selling her inventory. In March 2007, Davison and appellant entered into a verbal consignment agreement. Appellant agreed to attempt to sell some of Davison's jewelry inventory in return for a thirty percent commission on the items sold. Davison would receive the remaining seventy percent of the sales price. With the help of Aja Hiracheeta, Davison's assistant, appellant selected numerous pieces of jewelry that she thought she could sell at an upcoming jewelry show. Hiracheeta made color photocopies of the items appellant selected and marked the wholesale price for each item on the picture. Hiracheeta testified she delivered all the selected items to appellant the following day. Davison, however, believed there had been two separate deliveries to appellant. According to Davison, the jewelry consigned to appellant was valued at $5818. Photocopies of the items Hiracheeta and Davison testified were delivered to appellant were admitted into evidence. In April 2007, Appellant held a show of both her jewelry and Davison's jewelry. Appellant's mother, Diana Poe, was the cashier at the show. Poe confirmed appellant was trying to sell a number of pieces of jewelry that she had received on consignment from "Sally." Poe saw a young woman approach appellant and then leave with a tray of rings and necklaces without paying for the items. Poe learned the woman worked for Davison. Hiracheeta confirmed she retrieved a number of rings from appellant at the show because Davison had another client interested in buying the items. Using the photocopy inventory, Hiracheeta identified the rings she retrieved from appellant. Hiracheeta testified she marked "RTV" on the items she took from appellant and that none of those items are included in the list of items that were later determined to be missing. Poe testified none of Davison's jewelry sold at the show. However, Davison testified she telephoned appellant a few weeks after the show and asked about any sales. Smith said sales were slow and she believed she had sold only a ring and a bracelet. After that telephone inquiry, Davison attempted to call appellant on numerous occasions about the status of the jewelry and left messages requesting appellant return the calls. Appellant did not respond to the calls. Davison also sent email messages to appellant, but never received a reply. Poe testified that appellant said Davison was constantly calling her telephone "in the manner of harassment." Poe believed Smith cut off all communication with Davison due to this harassment. Eventually Davison asked Abernethy if she could contact appellant on her behalf. When Abernethy next saw appellant at the gym, she told appellant that Davison wanted her jewelry returned. One morning when Abernethy was at the gym, appellant came up to her with a box and said, "[H]ere you go, here's the stuff." Abernethy testified she did not look inside the box because she was busy at the gym. Abernethy instructed Brent Montooth, her delivery driver, to take the box to Davison's residence. According to Mantooth, he received a call from Abernethy while he was heading back to the office from a delivery. Abernethy instructed him to pick up a box at the office and deliver it to Davison at her home. Mantooth retrieved the closed shoe box and drove to Davison's house without opening the box. When he rang the doorbell, Davison instructed him, through an intercom, to open the unlocked front door and leave the box inside by the staircase. Mantooth did as Davison instructed, closed the door behind him, and went back to Abernethy's office. Davison and Hiracheeta inventoried the jewelry in the box. Hiracheeta wrote "RTV" on the photocopies of each item that was returned, and they discovered several items were missing. Hiracheeta then made a list of the missing items. Most of the missing items were rings, but a few earrings and necklaces were also missing. The value of missing items was $734. Davison tried to contact appellant about the missing items by telephone, email, and two certified letters. Appellant did not respond to any of Davison's inquiries, and the letters were returned from the post office marked "unclaimed, unable to forward" and "refused, unable to forward." Davison testified she won a civil judgment against appellant, who never showed up for that proceeding, but has yet to receive any money from appellant for the missing items. Discussion In her sole issue, appellant contends the evidence is factually insufficient to prove she intentionally or knowingly kept the missing jewelry without Davison's consent. Specifically, appellant argues there are three alternative hypotheses that would account for the missing jewelry: (1) Davison never sent the missing items to appellant, (2) the items were lost or stolen by Hiracheeta, or (3) the items were lost or stolen during shipment from appellant to Davison. When conducting a factual sufficiency review, we view all of the evidence in a neutral light. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). The evidence is factually insufficient (1) if the evidence supporting the conviction is too weak to support the verdict, or (2) when the evidence supporting the verdict is outweighed by the great weight and preponderance of the contrary evidence. Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009); Grotti v. State, 273 S.W.3d 273, 283 (Tex. Crim. App. 2008). We may set aside a verdict based on factual insufficiency only when necessary to prevent manifest injustice. Laster, 275 S.W.3d at 518. In a factual sufficiency review, we are permitted to substitute our judgment for the fact finder's when considering credibility and weight determinations, but only to a "very limited degree." Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). It is the jury's function to resolve the conflicts in the evidence, and the jury is free to accept or reject any or all of the evidence presented by either side. Lancon, 253 S.W.3d at 706; Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); see also Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). Unless the record clearly reveals a different result is appropriate, we must defer to the fact finder's determination concerning what weight to give contradictory testimony. Lancon, 253 S.W.3d at 705, 706; Marshall, 210 S.W.3d at 625. The existence of alternative reasonable hypotheses may be relevant to, but is not determinative in, a factual sufficiency review. Watson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999). However, it is the jury that accepts or rejects reasonable equal competing theories of causation, and we may not find the evidence to be factually insufficient merely because there is an alternative reasonable hypothesis. Steadman v. State, 280 S.W.3d 242, 247 (Tex. Crim. App. 2009); Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001). We must have a "high level of skepticism about the jury's verdict" before we may reverse based on factual insufficiency. Steadman, 280 S.W.3d at 246-47 The State was required to prove beyond a reasonable doubt that appellant, with intent to deprive Davison of her property, unlawfully appropriated eleven pieces of jewelry of the value of at least $500, but less than $1500, without Davison's effective consent. See Tex. Penal Code Ann. § 31.03(a), (e)(3) (Vernon Supp. 2009). The evidence is undisputed appellant received a number of pieces of jewelry from Davison on consignment. Both Poe and Hiaracheeta testified some pieces of Davison's jewelry were retrieved from appellant at a jewelry show. Using the photocopy inventory, Hiracheeta identified those items she retrieved at the show and testified those items were marked "RTV" on the inventory. At the gym, appellant gave a shoe box containing a number of pieces of jewelry to Abernethy to return to Davison. After completing an inventory of the jewelry returned by appellant, Davison and Hiracheeta discovered eleven pieces were missing. Although Poe did not believe any of the jewelry consigned to appellant had been sold at the show, Davison testified appellant told her at least some of the jewelry was sold. Davison testified appellant had not paid her any money for the missing pieces. Davison and Hiracheeta testified they made many attempts to contact appellant about returning the jewelry and about the missing pieces. Smith never responded to any of the messages and did not appear in a civil suit filed by Davison over the missing pieces of jewelry. Poe acknowledged appellant received a number of telephone calls from Davison, but cut off communication with Davison because the calls were harassing. We conclude a reasonable jury could find appellant received a number of pieces of jewelry from Davison on consignment and, with an intent to deprive Davison of her property, unlawfully appropriated eleven of the items without Davison's effective consent. Appellant, however, argues the evidence is factually insufficient because the jury could have also reasonably found (1) Davison never sent the missing items to appellant, (2) the items were lost or stolen by Hiracheeta, or (3) the items were lost or stolen during shipment from appellant to Davison. As to appellant's alternative hypotheses, there is no evidence the photocopy inventory of the jewelry consigned to appellant was inaccurate, and Hiracheeta testified she delivered all the items included in the photocopy inventory to appellant. The missing pieces of jewelry were included in that inventory. Any discrepancy in Hiracheeta's and Davison's testimony about the number of deliveries to appellant does not establish appellant failed to receive the missing items. As to appellant's claim Hiracheeta could have lost or stolen the missing items, Hiracheeta testified she delivered the items to appellant, she accurately recorded the items that were retrieved from and returned by appellant, and eleven pieces of jewelry were missing. It was the jury's role to evaluate the credibility of this testimony. Lancon, 253 S.W.3d at 706. Finally, nothing in the record indicates that, prior to Davison's and Hiracheeta's inventory of the box in which appellant chose to return Davison's jewelry, Abernethy, Mantooth, or anybody else opened the box, much less lost or stole the missing items. It was the jury's role to decide between reasonable competing theories of causation, and we must defer to the jury's determination. Steadman, 280 S.W.3d at 247; Goodman, 66 S.W.3d at 287. We conclude the evidence supporting appellant's conviction is neither too weak to support the verdict nor outweighed by the great weight and preponderance of the contrary evidence. Accordingly, we resolve appellant's sole issue against her and affirm the trial court's judgment.