Opinion
No. 05-16-00860-CR
06-06-2017
TONICA MONETTE WILLIAMS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 380th Judicial District Court Collin County, Texas
Trial Court Cause No. 380-81270-2016
MEMORANDUM OPINION
Before Justices Lang, Myers, and Stoddart
Opinion by Justice Lang
Following a plea of not guilty, appellant Tonica Monette Williams was convicted by a jury of theft. Punishment was assessed by the jury at two years' confinement, which was suspended by the trial court for two years, and a $5,000.00 fine.
In two issues on appeal, appellant contends the evidence is insufficient to support the jury's verdict because the State (1) failed to prove "value" beyond a reasonable doubt and (2) "failed to prove, under the 'law of parties,' that appellant was criminally responsible for the conduct of another." We decide appellant's two issues against her. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL CONTEXT
The indictment in this case alleged in part that on approximately June 17, 2015, appellant "intentionally and knowingly appropriate[d], by acquiring and otherwise exercising control over, property . . . of the value of less than Fifteen Hundred Dollars (1,500.00), without the effective consent of Dillard's, the owner of the property, and with intent to deprive the said owner of the said property."
At trial, Elizabeth Cantrell testified that on the date in question, she was working as a camera operator in the loss prevention office of a Dillard's department store in Frisco, Texas (the "store"). Shortly after 7 p.m., an "associate on the floor" called her to alert her to a "situation going on" respecting appellant. Specifically, Cantrell stated the associate told her "a woman and children" were in a "high theft area" of the store and "had a lot of clothing." Cantrell alerted the store's security guard and the managers of that area, then monitored the group in question on the store's closed circuit video surveillance cameras as the group moved throughout the store. Video recordings from those cameras were admitted into evidence and played for the jury as Cantrell described the group's actions.
The video recordings contained no audio.
The video recordings showed appellant in the boys' clothing department of the store with a teenaged girl and two slightly younger girls at approximately 7:22 p.m. In addition to her purse, appellant was carrying a large, opaque plastic Dillard's bag that was only slightly filled. The contents of that bag were not visible on the video. Appellant was looking at and selecting merchandise and had multiple items of clothing draped over one arm. At one point, appellant handed those clothing items to one of the youngest two girls, who carried them in a bundle as the group moved to the men's department. In the men's department, appellant selected more items of clothing. As the group left that department, appellant handed most of those items to the other young girl. Then, the group proceeded to the women's department, where the second young girl gave the clothing items she was carrying back to appellant. A few minutes later, the teenaged girl left the group and did not return.
Appellant and the two younger girls browsed in the women's department for approximately thirty minutes. Then, they left that department and walked down a hallway and into the restroom. At that point, appellant was carrying the clothing items described above, the Dillard's bag, and her purse. The two girls were carrying nothing. Several minutes later, appellant left the restroom without the Dillard's bag or any clothing items. The two girls were immediately behind her, following her by only a few feet as she walked. One of the girls was carrying the Dillard's bag, which was now extremely full. Neither girl carried anything else. The three of them walked past the range of the camera. Then, several seconds later, appellant came back within camera range, alone, and walked in a different direction through the store. She was not carrying the Dillard's bag or any clothing items at that time.
Cantrell testified that after the teenaged girl left the group as described above, a store manager watched her leave the store and enter a vehicle parked outside the store. Subsequently, according to Cantrell, a bag of items that were believed to have been stolen was removed from that vehicle by a police officer and brought back into the store. Cantrell stated she observed and photographed the contents of that bag. A photograph showing the items from that bag was admitted into evidence. Cantrell testified she is familiar with the value of the items in that photograph and none of them are "valued at free." She stated (1) the photograph showed approximately twelve Polo brand shirts, which range in value from $20 to $45, depending on whether they are children's or adult sizes; (2) "that value together would be less than $1,500.00"; and (3) there were also "at least a couple of shorts" in the photograph. Additionally, Cantrell stated the items belonged to Dillard's and the store did not give appellant or the girls described above permission to take them.
On cross-examination, Cantrell testified that about ten minutes after leaving the restroom, appellant left the store. Appellant was followed by a manager, who approached her immediately outside the store and asked her to come with him to the store's office.
Shaquil Mack testified that on the date in question, he was a patrol officer with the Frisco Police Department and was at the store investigating a previous, unrelated theft case. He observed appellant and the three girls on the store's video surveillance system during the time period described above. Mack stated "[i]t looked like they were in a group working together" and appellant was the "one that was taking charge kind of directing the others." He stated the Dillard's bag seen in the video was taken out of the store by the two younger girls. After the girls left the store, he walked outside to a parked vehicle that had been described to him by a store manager. Through the window of the vehicle, he could see the teenaged girl, the two younger girls, a Dillard's bag, and an "elderly" woman later identified as the younger girls' grandmother. Appellant was not in the vehicle. Mack approached and spoke with the occupants of the vehicle. He testified the Dillard's bag in the vehicle "matched the description" and "the young girl said this was the bag that had the stolen merchandise in it." One of the youngest girls handed him the bag and he took it into the store. He stated appellant was in the store's office at that time and was subsequently arrested by him inside the store.
On cross-examination, Mack testified he did not see the younger girls walk to the vehicle with the bag and there is no video of them doing so. Further, on direct examination, Mack stated (1) he believes appellant is criminally responsible for stealing the items in question because "she was the one directing or orchestrating this whole theft incident" and (2) when the young girl handed him the bag of items, she said she knew the items were stolen.
Additionally, the State introduced evidence showing two previous theft convictions of appellant. Then, the State rested its case.
Appellant testified in her own defense. She said that on the date in question, a friend asked her to drive her and her granddaughters to the mall so they could purchase gifts for Father's Day. Appellant went into Dillard's accompanied by her own teenaged daughter and her friend's two granddaughters. She stated she carried a Dillard's bag her friend gave her that contained "some shorts for her son that was to be matched to a shirt." Further, appellant stated that while in the store, she carried items for the younger girls because the items were heavy.
According to appellant, while she and the younger girls were in the restroom, she "was talking to them from the stall" and told them to "go put the clothes on the counter" and wait for her to come out of the restroom, at which time "we would go pay for the items." She stated she and the girls left the restroom "at different times." She "didn't see them" when she came out of the restroom and so she proceeded to look for them in the store.
On cross-examination, appellant testified in part as follows:
Q. How did the girls get those items and the bag and manage to get them in the bag and leave the restroom without you having any idea what was going on?Appellant stated it is "not true" that she and the girls left the restroom at the same time or that the girls were "immediately behind" her as she left the restroom.
A. I'm in the stall. You would need to ask them.
Q. So you didn't hear anything?
A. No, ma'am.
. . . .
Q. If you believed those girls had stolen those items why didn't you bring them back in?
A. I didn't believe it. I never had a chance to speak with them. I didn't know what had happened to them. That's why I went to look for them. . . . I never seen them after my time speaking to them in the bathroom. That was my last time seeing them.
Following the jury's verdict and assessment of punishment described above, this appeal was timely filed.
II. SUFFICIENCY OF THE EVIDENCE
A. Standard of Review
We review a challenge to the sufficiency of the evidence under the standard set out in Jackson v. Virginia, 443 U.S. 307 (1979). Wilson v. State, 448 S.W.3d 418, 425 (Tex. Crim. App. 2014). We view the evidence in the light most favorable to the verdict and determine whether a rational factfinder could have found all the elements of the offense beyond a reasonable doubt. Id. In our review, we are mindful that the jury is the sole judge of the credibility and weight of the evidence. See, e.g., Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). "We will uphold the verdict unless a rational factfinder must have had reasonable doubt with respect to any essential element of the offense." Wilson, 448 S.W.3d at 425. "Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt." Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012) (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)).
"[A]n inference is a conclusion reached by considering other facts and deducing a logical consequence from them." Hooper, 214 S.W.3d at 16. By contrast, "[s]peculation is mere theorizing or guessing about the possible meaning of facts and evidence presented." Id. Juries "are permitted to draw multiple reasonable inferences as long as each inference is supported by the evidence presented at trial," but "are not permitted to come to conclusions based on mere speculation or factually unsupported inferences or presumptions." Winfrey v. State, 393 S.W.3d 763, 771 (Tex. Crim. App. 2013); see also Hooper, 214 S.W.3d at 16-17 (stating "courts of appeals should . . . determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict"). When the record supports conflicting inferences, we presume that the jury resolved the conflicts in favor of the verdict and defer to that determination. Merritt, 368 S.W.3d at 526 (citing Jackson, 443 U.S. at 326).
B. Applicable Law
Under the Texas Penal Code, "[a] party is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both." TEX. PENAL CODE ANN. § 7.01(a) (West 2011). Further, a person is criminally responsible for an offense committed by the conduct of another if, "acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense." Id. § 7.02(a).
A person commits theft if he "unlawfully appropriates property with intent to deprive the owner of the property." Id. § 31.03(a) (West Supp. 2016). Appropriation of property is unlawful if it is without the owner's effective consent. Id. § 31.03(b). Pursuant to the former version of the penal code applicable in this case, theft is a state jail felony if (1) "the value of the property stolen is $1,500 or more but less than $20,000," or (2) "the value of the property stolen is less than $1,500 and the defendant has been previously convicted two or more times of any grade of theft." See Act of May 29, 2011, 82nd Leg., R.S., ch. 1234, § 21, 2011 Tex. Gen. Laws 3301, 3310 (amended eff. Sept. 1, 2015) (current version at TEX. PENAL CODE ANN. § 31.03(e)(4) (West Supp. 2016)). Generally, value is "(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. The definition of "owner" includes 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) (West Supp. 2016). "Fair market value may be proved by, among other means, testimony of the owner's opinion of the value of the property." Sandone v. State, 394 S.W.3d 788, 791 (Tex. App.—Fort Worth 2013, no pet.) (citing Keeton v. State, 803 S.W.2d 304, 305 (Tex. Crim. App. 1991)).
C. Application of Law to Facts
1. Value of Items Stolen
In her first issue, appellant contends the evidence is "insufficient to establish the property value." Specifically, according to appellant, (1) "[t]hroughout the entire trial, the State was unable to present evidence to show what was allegedly stolen and just how much value was the [sic] items allegedly taken," and (2) section 31.03(e)(4) "requires the State to prove beyond a reasonable doubt that the value of the property stolen is less than $1 ,500 ." (emphasis original). Further, appellant asserts,
The State estimated that 12 Polo shirts were less than $1,500.00, but the picture actually depicted more than 12 shirts and several other clothing items, including denim jeans or shorts. There was no testimony regarding the value of the remaining items, except that those items are not free. Since there was no value provided for all the items allegedly taken by the children, the State has failed to prove beyond a reasonable doubt regarding the value of the property.(citations to record omitted).
The State responds that the evidence is sufficient to prove the value of the items stolen. Specifically, the State asserts (1) "[o]ne of the younger girls handed the Dillard's bag to the police officer and admitted that the items in the bag were stolen"; (2) the bag was then taken into the store and the items in the bag were photographed; and (3) "[a] Dillard's employee testified that the recovered items were valued at less than $1,500."
We disagree with appellant's position that "the State was unable to present evidence to show what was allegedly stolen." Rather, the record shows one of the younger girls gave Mack a bag that she said contained stolen items and those items were then photographed by Cantrell. A copy of that photograph was admitted into evidence. Further, as to the value of the items stolen, Cantrell had a greater right of possession to the items in question than appellant and therefore her testimony could prove fair market value. See Sandone, 394 S.W.3d at 792 (employee of store was "owner" for purposes of testifying as to fair market value of stolen merchandise). Cantrell testified (1) the photograph showed approximately twelve Polo shirts, which ranged in value from $20 to $45; (2) "that value together would be less than $1,500.00"; and (3) there were also "at least a couple of shorts" in the photograph. The photocopy of the photograph in the appellate record is somewhat dark, but appears to show twelve shirts, a hooded sweatshirt, and several pair of shorts or pants. To the extent appellant's argument can be construed to assert the evidence is insufficient because the State did not prove that the value of all of the items in the photograph, together, was less than $1,500.00, appellant cites no authority to support that position. See Britain v. State, 412 S.W.3d 518, 521 (Tex. Crim. App. 2013) ("[i]f the evidence proves a greater offense, it necessarily proves the lesser offense"). On this record, we conclude the evidence is sufficient to establish "the value of the property stolen is less than $1,500" for purposes of section 31.03(e)(4).
We decide against appellant on her first issue.
2. Theft Under "Law of Parties"
In her second issue, appellant contends the evidence is insufficient to prove she is guilty of theft under the "law of parties." According to appellant, (1) there is no evidence showing she solicited, encouraged, directed, helped, or attempted to help the two girls commit theft, and (2) Mack "drew a legal conclusion as to Ms. Williams' involvement in the theft, but he failed to provide any evidence of how he came to that conclusion."
The State responds (1) the evidence shows appellant "was not merely present, but took an active role in stealing the items later found in the Dillard's bag," and (2) appellant's "blatant lie at trial" that she and the girls left the restroom "at different times" supported an inference of appellant's guilt.
False statements indicate a "consciousness of guilt," which "may be one of the strongest indicators of guilt." Vasquez v. State, No. 05-15-00588-CR, 2016 WL 912178, at *4 (Tex. App.—Dallas Mar. 10, 2016, no pet.) (mem. op., not designated for publication) (citing King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000)). Also, as described above, juries "are permitted to draw multiple reasonable inferences as long as each inference is supported by the evidence presented at trial." Winfrey, 393 S.W.3d at 771.
In the case before us, the video recording showed appellant carried the Dillard's bag through the store, selected clothing items that were carried through the store by her and the girls, and carried the Dillard's bag and a bundle of clothing items into the restroom. Then, appellant left the restroom with no bag or clothing items as the girls followed directly behind her with an extremely full Dillard's bag. The three walked in the same direction initially, then appellant turned and walked alone in a different direction. Further, Mack testified (1) "[i]t looked like they were in a group working together"; (2) appellant was the "one that was taking charge kind of directing the others"; and (3) he believes appellant is criminally responsible for stealing the items in question because "she was the one directing or orchestrating this whole theft incident." Additionally, despite the video footage showing appellant leaving the restroom with the two girls following only a few feet behind her, appellant testified she and the girls left the restroom "at different times" and she "didn't know what had happened to them." On this record, we conclude the evidence is sufficient to support a finding that appellant was criminally responsible for theft committed by the conduct of others. See TEX. PENAL CODE ANN. § 7.02(a); Winfrey, 393 S.W.3d at 771; Vasquez, 2016 WL 912178, at *4.
We decide appellant's second issue against her.
III. CONCLUSION
We decide against appellant on her two issues. The trial court's judgment is affirmed.
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2
160860F.U05
JUDGMENT
On Appeal from the 380th Judicial District Court, Collin County, Texas
Trial Court Cause No. 380-81270-2016.
Opinion delivered by Justice Lang, Justices Myers and Stoddart participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 6th day of June, 2017.