Tanner v. State

Full title: TERESSA LYNNEA TANNER, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Ninth District, Beaumont

Date published: Oct 27, 2010

No. 09-09-00458-CR (Tex. App. Oct. 27, 2010)

Opinion

No. 09-09-00458-CR

Submitted on October 15, 2010.

Opinion Delivered October 27, 2010. DO NOT PUBLISH.

On Appeal from the County Court at Law No. 3 Montgomery County, Texas Trial Cause No. 08-243318.

Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.

MEMORANDUM OPINION

STEVE McKEITHEN, Chief Justice.

A jury convicted Teressa Lynnea Tanner of Class B theft. See Tex. Penal Code Ann. § 31.03(e)(2) (West Supp. 2010). The trial court sentenced Tanner to 180 days in jail, probated for one year. On appeal, Tanner challenges: (1) the denial of her motion for mistrial; and (2) the denial of her request for a jury instruction on the lesser-included offense of Class C theft.

FACTUAL BACKGROUND

Two high school students' purses were taken from the "front of the school library." A high school student found two Coach-brand purses under the restroom sink. Assistant Principal Paul Fleming testified that the purses were found in the restroom across the hall from the library. Fleming reviewed school surveillance footage and saw Tanner enter the library. Tanner was carrying a large bag. School officials testified that Tanner was supposed to be in a class far away from the library and had not received permission to be in the library at the time. According to Fleming, the footage showed Tanner entering the library, exiting the library, and then entering the restroom, where she remained for about eight minutes. She then exited the restroom, and met her boyfriend in the hallway. Fleming did not see anyone else carrying a large bag or carrying anything out of the library. Complainant testified that Tanner was the only person seen carrying a bag large enough to conceal the stolen Coach purse. The footage did not show Tanner taking the purse. When Assistant Principal Dennis Muehsler questioned Tanner, she became agitated and guarded, refused a search of her bag, and used profanity. Muehsler explained that when Tanner becomes "increasingly upset with things, it usually means there is a certain level of guilt there." Assistant Principal Barbara Shaw testified that, at some point during the interview, some objects fell out of Tanner's bag. The objects matched items missing from the stolen purses. Tanner eventually consented to a search of her purse. She claimed to have found the items, but had no comment when asked why she did not give the items to lost and found. Officer Peter Vollmer testified that Tanner was in possession of a calculator belonging to one of the victims. He testified that some of complainant's possessions were found in the restroom, while others were either never found or were found in Tanner's possession.

MOTION FOR MISTRIAL

In issue one, Tanner contends that the trial court improperly denied her motion for mistrial, because the prosecutor improperly commented on her failure to testify during the guilt/innocence phase of trial. During closing argument, the State argued:

Now, what you didn't hear, who you didn't hear from — her mom, her dad, any family member. Where are they? A friend? The boyfriend that was with her outside the hallway of the bathroom.

Defense counsel objected:

Judge, I am going to ask for a mistrial. She is telling the jury that I didn't call witnesses. I am not required to call any witnesses. She is telling them that I didn't bring forward her mom, her dad, or her boyfriend.

The trial court overruled the objection and denied the motion for mistrial, and the State proceeded:

The boyfriend outside the bathroom —

Defense Counsel: Your Honor, I am going to renew my objection that the Defendant does not have to call any witnesses.

The trial court overruled the objection and the State continued:

Where are these people? Why aren't we hearing from anyone?

Defense Counsel: Your Honor, I am going [to] object to that again. When she says "anyone," I am not required to call any witnesses. I think she is inferring that I did not call my client as a witness. That is prosecutorial misconduct. I ask that you instruct the jury and to remind them on the jury charge that I don't have to call any witnesses and it is misconduct for her to say that I could have called and didn't.

The trial court overruled the objection, after which the State explained:

You do not need — please do not infer that I am saying the Defendant didn't testify, therefore, she is guilty. That's not what I am saying at all.

A comment on a defendant's failure to testify arises where "the language used was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant's failure to testify." Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007). "A mere indirect or implied allusion to the accused's failure to testify does not violate appellant's rights." Patrick v. State, 906 S.W.2d 481, 490-91 (Tex. Crim. App. 1995). "A remark that calls attention to the absence of evidence which only the defendant could supply will result in reversal; however, if the language can reasonably be construed to refer to appellant's failure to produce evidence other than his own testimony, the comment is not improper." Id. at 491; see Jackson v. State, 17 S.W.3d 664, 674 (Tex. Crim. App. 2000). Citing Crocker v. State, 248 S.W.3d 299 (Tex. App.-Houston [1st Dist] 2007, pet. ref'd), Tanner contends that the State's argument was improper. In Crocker, the State argued during closing:

And I will tell you this: The State and the defense have the same ability to bring in witnesses in this case. The State can subpoena witnesses. The defense can subpoena witnesses. Okay. You heard from the State's witnesses as to who was there January 26, 2004. And the State's witnesses only. And I ask that you find him guilty.

Crocker, 248 S.W.3d at 303 (emphasis in original). The trial court sustained Crocker's objection to the argument, but denied his motion for mistrial. See id. Crocker's "theory of the case was that the State failed to meet its burden of proof beyond a reasonable doubt." Id. at 304. No physical evidence connected Crocker to the robbery, the complainant was the source of all of the evidence offered by the State, and no one else was present during the offense. See id. at 304-05. The First Court found the argument to be improper because it "was an indirect comment on [Crocker's] failure to testify, as it drew the jury's attention to the absence of evidence that only [Crocker's] testimony could supply." Id. at 305. Unlike Crocker, the complainant in this case is not the only source of the evidence against Tanner. Nor is Tanner the only other witness who could have been called to testify, but was not. During closing argument, the defense discussed the State's failure to call Tanner's boyfriend as a witness. It was in rebuttal that the State made the complained-of argument referring to Tanner's failure to present witnesses. See Davis v. State, 967 S.W.2d 476, 479-80 (Tex. App.-Beaumont 1998, no pet.). The jury could reasonably construe the State's argument to refer to Tanner's failure to produce evidence other than her own testimony, such as that of her boyfriend, with whom she was seen after the theft. See Patrick, 906 S.W.2d at 491; see also Jackson, 17 S.W.3d at 674. Under these circumstances, we cannot say that the State's argument was manifestly intended or of such a character that the jury would necessarily and naturally take it as a comment on Tanner's failure to testify. Cruz, 225 S.W.3d at 548. Because the trial court did not abuse its discretion by denying Tanner's motion for mistrial, we overrule issue one.

REQUEST FOR JURY INSTRUCTION

In issue two, Tanner challenges the denial of her request for a jury instruction on the lesser-included offense of Class C theft. "[A] lesser-included offense instruction shall be included in the jury charge if: (1) `the requested charge is for a lesser-included offense of the charged offense and (2) there is some evidence that, if the defendant is guilty, she is guilty only of the lesser offense.'" Guzman v. State, 188 S.W.3d 185, 188 (Tex. Crim. App. 2006) (emphasis in original); see Hayward v. State, 158 S.W.3d 476, 478 (Tex. Crim. App. 2005). Tanner requested a jury instruction on the Class C misdemeanor offense of theft under $50. See Tex. Penal Code Ann. § 31.03(e)(1). Tanner argued that the evidence failed to conclusively establish the true and correct value of the purse or any of the objects stolen from the purse. The trial court denied the request. The trial court instructed the jury as to theft of $500 or more but less than $1,000, a Class A misdemeanor, and theft of $50 or more but less than $500, a Class B misdemeanor. See id. § 31.03(e)(2), (3). The jury convicted Tanner of Class B theft. See id. § 31.03(e)(2). The parties do not dispute that Class C theft is a lesser-included offense. Rather, the parties dispute whether the record contains some evidence that Tanner is guilty only of the lesser-included offense of Class C theft. To answer this question, we must determine whether there is "some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser-included offense." Hall v. State, 225 S.W.3d 524, 536 (Tex. Crim. App. 2007); see Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994). "[A]nything more than a scintilla of evidence may be sufficient to entitle a defendant to a lesser charge." Hall, 225 S.W.3d at 536. "[T]he evidence must establish the lesser-included offense as `a valid, rational alternative to the charged offense.'" Id. (quoting Forest v. State, 989 S.W.2d 365, 367 (Tex. Crim. App. 1999)). "[I]t is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense, but rather, there must be some evidence directly germane to the lesser-included offense for the finder of fact to consider before an instruction on a lesser-included offense is warranted." Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003) (citing Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997)). Tanner was charged with appropriating the purse, jewelry, and United States Currency. Complainant testified that the Coach purse was worth about $300 and contained $25 cash.¹ She did not purchase the purse and did not have firsthand knowledge of its value. Value constitutes (1) the fair market value of the property or service at the time and place of the offense; or (2) if the fair market value of the property cannot be ascertained, the cost of replacing the property within a reasonable time after the theft. Tex. Penal Code Ann. § 31.08(a) (West 2003). "[T]he owner of property is competent to testify as to the value of his own property." Sullivan v. State, 701 S.W.2d 905, 908 (Tex. Crim. App. 1986). "[W]hen the owner of the property is testifying as to the value of the property, he or she may testify as to his or her opinion or estimate of the value of the property in general and commonly understood terms." Id. at 909. "Testimony of this nature is an offer of the witness' best knowledge of the value of his property." Id. "Such testimony will constitute sufficient evidence for the trier of fact to make a determination as to value based on the witness' credibility." Id. "This is true even in the absence of a specific statement as to `market value' or `replacement value.'" Id. "When an owner testifies, the presumption must be . . . that the owner is testifying to an estimation of the fair market value." Id. The owner may testify to the "fair market value of the property either in terms of the purchase price or the cost to him of replacing the stolen property." Id. "If the appellant wishes to rebut the owner's opinion evidence he must do more than merely impeach the witness' credibility during cross-examination." Id. "He must offer controverting evidence as to the value of the property." Id. As the owner of the purse, the complainant can testify to her opinion or estimate of the purse's fair market value, in general and commonly understood terms. Id.; see also Sanders v. State, 814 S.W.2d 784, 786 (Tex. App.-Houston [1st Dist.] 1991, no pet.). She need not be qualified as to her knowledge of the property's value. See Sullivan, 701 S.W.2d at 908-09 (When a non-owner testifies about fair market value, he must be "qualified as to his knowledge of the value of the property. . . ."). Tanner offered no controverting evidence of the purse's value. There is no evidence directly germane to the offense of Class C theft; thus, a rational jury could have concluded that the fair market value of the purse was $50 or more. See generally Hampton, 109 S.W.3d at 441. Because the evidence does not establish the lesser-included offense of Class C theft as `"a valid, rational alternative to the charged offense,'" the trial court properly denied Tanner's requested jury instruction. Hall, 225 S.W.3d at 536; Forest, 989 S.W.2d at 367. We overrule issue two. Having overruled Tanner's two issues, we affirm the trial court's judgment. AFFIRMED.