Isabelle Michelle Ortega v. State

Opinion

                                                                                    NO. 12-03-00233-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ISABELLA MICHELLE ORTEGA,                 §                 APPEAL FROM THE

APPELLANT

V.                                                                         §                 COUNTY CRIMINAL COURT # 8

THE STATE OF TEXAS,

APPELLEE                                                        §                 TARRANT COUNTY, TEXAS

MEMORANDUM OPINION

            Isabella Michelle Ortega appeals her conviction for theft of between fifty and five hundred dollars, for which she was sentenced to confinement for sixty days. Appellant raises one issue on appeal. We affirm.

Background

            Appellant was charged by information with theft of property with a value of fifty dollars or more, but less than five hundred dollars. Appellant pleaded “not guilty.”

            Darla Silva, a loss prevention officer at Wal-Mart, testified that on November 1, 2002 she observed Appellant and her daughter in the Wal-Mart store where Silva worked. Silva testified that Appellant and her daughter were acting very suspiciously in that they were initially looking at “everything else” and not really shopping. As Silva observed the two, she noted that they placed smaller items in the top portion of the shopping basket. Silva testified that shoplifters often place items in the top portion of the shopping basket even though there is a greater likelihood that smaller items could fall out. Silva noted that she watches for such conduct because placing items in the top portion of the shopping cart creates easier access for a person to later conceal the items in a purse or in other merchandise.

            Silva, who was dressed in plain clothes, followed Appellant and her daughter into the hardware section. Silva testified that Appellant selected two ceramic space heaters, which were in boxes with extra space at the top of each box, and placed them in the shopping cart. Silva testified that the two moved into what Silva referred to as a “concealment aisle,” and, as Appellant watched, her daughter stuffed items such as two containers of lotion, one container of powder, one container of blush, one container of foundation, three containers of medicine, one container of eyeshadow, one apple corer, and one container of fragrance, in one of the heater boxes. Silva testified that Appellant was standing at the front of the basket and participating in the concealment of the items by signaling to her daughter with her eyes when it was safe to proceed.

            Silva testified that Appellant’s daughter had difficulty removing the plastic wrapping from an item and was making a bit of noise in the process. Silva testified that Appellant made noise at the same time to drown out the noise created by her daughter’s unwrapping the merchandise.

            Eventually, Appellant and her daughter checked out. Appellant paid for some items, including the ceramic heaters. However, the cashier did not check inside the fan boxes, nor did Appellant or her daughter pay for the items concealed therein. After checking out, Appellant and her daughter left the store. Silva confronted them outside. Appellant told Silva that she did not know what Silva was talking about and denied any wrongdoing. Silva then opened the box and showed Appellant the merchandise. The value of the merchandise was later determined to be $75.82.

            Appellant and her daughter returned to the store with Silva, who called the police. Appellant and her daughter were subsequently arrested.

            Appellant and her daughter both testified in Appellant’s defense. Appellant’s daughter testified that Appellant had not gone to work that day because she had been sick, but nonetheless, she and Appellant had gone to Wal-Mart to get sandwiches at the snack bar. Appellant’s daughter stated that she and Appellant decided to “get some stuff” so Appellant would not have to return later. Appellant’s daughter claimed that in order to make Appellant mad, she had shoplifted items for her personal use. Appellant’s daughter insisted that Appellant had no knowledge that she had stolen anything, and further stated that Appellant had not encouraged her or aided her in taking the merchandise. Appellant’s daughter further testified that she had not placed a majority of the items in the heater box, but rather, had concealed them under her sweater.

            Appellant testified that she worked as an investigator for the Texas Workforce Commission, but had stayed home from work that day because she was suffering from asthma and allergies. Appellant stated that sometime after dark when it was “really cold” and raining outside, she and her daughter decided to go to Wal-Mart to eat a chopped barbeque sandwich. Appellant testified that she was so medicated that she had no taste for food. Appellant stated that after her daughter finished eating, they began to shop, and selected items such as dog food, cat food, cat litter, and two space heaters. Appellant testified that she did not pay attention to what her daughter was doing, and further, because her wrists were sore from tendinitis, she allowed her daughter to place the items in the cart onto the checkout counter. Appellant stated that she paid for the items the clerk rang up and left the store with her daughter.

            Appellant recounted that once she and her daughter were outside, Silva stopped them, and asked her daughter, “Do you want to tell her or shall I?” Appellant looked at her daughter and asked her if she had done something, to which her daughter responded that she was not going to say anything. Appellant testified that Silva searched her daughter and found various items in her pocket. Appellant stated that Silva took her daughter on a search for a missing bottle of perfume, and when she ultimately only found an empty box, Silva produced a new bottle.

            Appellant acknowledged that her daughter had taken various items; however, she denied that her daughter had taken the perfume. Appellant further testified that she had been unaware that her daughter had stolen any merchandise or put any items in the heater box. Appellant stated that she had not encouraged or aided her daughter in the theft.

            The jury found Appellant guilty as charged. The trial court subsequently sentenced Appellant to confinement for sixty days, but suspended Appellant’s sentence and placed her on community supervision for eighteen months. This appeal followed.

Evidentiary Sufficiency

            In her sole issue, Appellant contends that the evidence is insufficient to support the jury’s verdict with regard to her theft conviction.

Legal Sufficiency

            Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. See Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-787, 61 L. Ed. 2d 560 (1979); see also Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App.–San Antonio 1999, no pet.). The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined in the light most favorable to the jury’s verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186. A successful legal sufficiency challenge will result in rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S. Ct. 2211, 2217-218, 72 L. Ed. 2d 652 (1982).

            The sufficiency of the evidence is measured against the offense as defined by a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge would include one that “accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant is tried.” Id.

            A person commits the offense of theft if, she, without the owner’s consent, appropriates property with the intent to deprive the owner of the property. See Tex. Pen. Code Ann. § 31.03(a), (b) (Vernon 1989). A person is criminally responsible as a party to an offense if the offense is committed by the conduct of another for which she is criminally responsible. See Tex. Pen. Code Ann. § 7.01(a) (Vernon 1977). A person is criminally responsible for an offense committed by the conduct of another if, with intent to promote or assist the commission of the offense, she solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. See Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 1977).

            In the case at hand, Silva testified that Appellant helped to choose the items her daughter placed in the basket, and further, that Appellant and her daughter intentionally positioned themselves in a concealment aisle away from surveillance cameras so that Appellant’s daughter could unwrap the merchandise and hide it in the box while Appellant stood lookout. Silva’s testimony further related that Appellant signaled to her daughter when to conceal items and that Appellant made noises in an attempt to cover up the noise caused by her daughter’s removing plastic wrapping. Silva further related that Appellant failed to pay for the items concealed in the heater box, and later took the items outside of the store. Silva testified that the items taken, for which Appellant did not pay, were as follows: one container of fragrance, two containers of lotion, one container of powder, one container of blush, one container of foundation, three containers of medicine, one container of eyeshadow, and one apple corer. Finally, Silva testified that the total value of the items taken for which Appellant did not pay, and did not have permission to take, was $75.82. Viewing the aforementioned evidence in a light most favorable to the jury’s verdict, we hold that the evidence is legally sufficient to support Appellant’s theft conviction.

Factual Sufficiency

            Turning to Appellant’s contention that the evidence is not factually sufficient to support the jury’s verdict, we must first assume that the evidence is legally sufficient under the Jackson standard. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We then consider all of the evidence in the record related to Appellant’s sufficiency challenge, not just the evidence which supports the verdict. We review the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute, and compare it to the evidence that tends to disprove that fact. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). We are authorized to disagree with the jury’s determination, even if probative evidence exists that supports the verdict. Clewis, 922 S.W.2d at 133. Our evaluation should not substantially intrude upon the jury’s role as the sole judge of the weight and credibility of witness testimony. Santellan, 939 S.W.2d at 164. Where there is conflicting evidence, the jury’s verdict on such matters is generally regarded as conclusive. See Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App.–El Paso 1996, pet. ref’d). Ultimately, we must ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine our confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). A verdict will be set aside “only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust.” Ortiz v. State, 93 S.W.3d 79, 87 (Tex. Crim. App. 2002).

            Here, there is conflicting testimony concerning whether Appellant was aware that her daughter was concealing merchandise in the heater box. Silva’s testimony supports a conclusion that Appellant not only knew her daughter was concealing merchandise, but also assisted her daughter in the commission of the offense.

            We iterate that our evaluation should not substantially intrude upon the jury’s role as the sole judge of the weight and credibility of witness testimony, see Santellan, 939 S.W.2d at 164, and where there is conflicting evidence, the jury’s verdict on such matters is generally regarded as conclusive. See Van Zandt, 932 S.W.2d at 96. It follows that the jury was entitled to find that Silva was a more credible witness than either Appellant or her daughter. See Thompson v. State, 54 S.W.3d 88, 97 (Tex. App.–Tyler 2001, pet. ref’d). Our review of the record as a whole, with consideration given to all of the evidence, both for and against the trial court’s finding, has not revealed to us any evidence that causes us to conclude that the proof of guilt is so obviously weak or is otherwise so greatly outweighed by contrary proof as to render Appellant’s conviction clearly wrong or manifestly unjust. Therefore, we hold that the evidence is factually sufficient to support the trial court’s verdict. Appellant’s sole issue is overruled.

Conclusion

Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.

                                                                                                    DIANE DEVASTO

                                                                                                                 Justice

Opinion delivered July 14, 2004.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(DO NOT PUBLISH)