ACCEPTED 14-15-00511-CR FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 12/11/2015 2:51:11 PM CHRISTOPHER PRINE CLERK
NO. 14-15-00511-CR
IN THE COURT OF APPEALS FILED IN FOR THE FOURTEENTH DISTRICT OF TEXAS14thHOUSTON, COURT OF APPEALS TEXAS 12/11/2015 2:51:11 PM CHRISTOPHER A. PRINE KENASHICA DARPRE DAVISON Clerk
Appellant
v.
THE STATE OF TEXAS Appellee
On Appeal from Cause Number 1451009 From the 351st District Court of Harris County, Texas
BRIEF FOR APPELLANT
ORAL ARGUMENT REQUESTED ALEXANDER BUNIN Chief Public Defender Harris County, Texas
MELISSA MARTIN Assistant Public Defender Harris County, Texas TBN. 24002532 1201 Franklin, 13th floor Houston, Texas 77002 Phone: (713) 368-0016 Fax: (713) 437-4319
Counsel for Appellant IDENTITY OF PARTIES AND COUNSEL
APPELLANT: Kenashica Darpre Davison SPN# 01678253 1200 Baker St Houston, TX 77002
TRIAL PROSECUTORS: Brittany Aaron Assistant District Attorney Harris County, Texas 1201 Franklin Avenue, 6th Fl Houston, TX77002
DEFENSE COUNSEL AT TRIAL: Patrick J. Ruzzo Attorney at Law PO Box 70316 Houston, TX 77270
PRESIDING JUDGE: Hon. Ruben Guerrero 351st District Court Harris County, Texas 1201 Franklin Avenue, 14th Fl Houston, TX 77002
COUNSEL ON APPEAL FOR APPELLANT: Melissa Martin Assistant Public Defender Harris County, Texas 1201 Franklin Avenue, 13th floor Houston, TX 77002
ii TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ...................................................................................ii
TABLE OF CONTENTS .............................................................................................................iii
INDEX OF AUTHORITIES ........................................................................................................iv
STATEMENT OF THE CASE...................................................................................................... 1
ISSUE PRESENTED ................................................................................................................... 1
THE TRIAL COURT ERRED IN DENYING APPELLANT’S REQUEST TO INSTRUCT THE JURY ON A CLASS A MISDEMEANOR LESSER INCLUDED OFFENSE AND APPELLANT WAS EGREGIOUSLY HARMED.
STATEMENT OF FACTS ............................................................................................................ 1
SUMMARY OF THE ARGUMENT .............................................................................................. 4
ARGUMENT .............................................................................................................................. 4
A. STANDARD OF REVIEW AND PERTINENT LAW ........................................................ 4
B. APPELLANT WAS ENTITLED TO LESSER-INCLUDED CHARGE ................................ 5
1. MISDEMEANOR THEFT IS A LESSER-INCLUDED OFFENSE OF FELONY THEFT 5
2. MORE THAN A SCINTILLA OF EVIDENCE SUPPORTED THE LESSER-INCLUDED OFFENSE ................................................................................................................. 6
C. APPELLANT WAS HARMED ........................................................................................ 10
PRAYER .................................................................................................................................. 10
CERTIFICATE OF SERVICE .................................................................................................... 15
CERTIFICATE OF COMPLIANCE............................................................................................ 16
iii INDEX OF AUTHORITIES
Cases
Almanza v.State, 645 S.W. 2d 885 (Tex. Crim. App. 1984) ...................................... 4, 5, 10
Haley v. State, 369 S.W.3d 756 (Tex. App.—Houston [14th Dist.] 2013, no pet.) ..... 5, 10
Hall v. State, 255 S.W.3d 524 (Tex. Crim. App. 2007) .................................................... 4, 9
Olivas v. State, 202 S.W.3d 137 (Tex. Crim. App. 2006) ................................................... 10
Statutes
Tex. Code Crim. Proc, art. 37.09 (1) .................................................................................... 4
Tex. Code Crim. Proc, art. 37.09 (2) .................................................................................... 4
Tex. Penal Code § 31.02(e)(4)(A). ........................................................................................ 3
Tex. Penal Code §31.03 (a) (West 2015).......................................................................... 4, 6
Tex. Penal Code §31.03 (b)(1) (West 2015) .................................................................... 4, 6
Tex. Penal Code §31.03 (e)(3) (West 2015) ..................................................................... 4, 6
Tex. Penal Code §31.03 (4)(A) (West 2015) .................................................................... 4, 6
Rules
Tex. Rule Crim. Proc., art. 36. 19 (West 2015) ................................................................... 4
Tex. Rule Crim. Proc., art. 37.09 (1) (West 2015). ............................................................. 5
Tex. Rule Crim. Proc., art. 37.09 (2) (West 2015). ............................................................. 5
iv Statement of the Case
Appellant Kenashica Darpre Davison was indicted on a charge of state-jail felony
theft (C.R. at 12). The state alleged two prior state-jail felony thefts. The case was tried
to a jury, which convicted her on June 3, 2015 (C.R. at 67; 3 R.R. at 61). Ms. Davison
and the state agreed to a sentence of four years’ confinement in the Institutional
Division of the Texas Department of Criminal Justice and the trial court upheld the
agreement after appellant pled “True” to the two enhancement paragraphs (4 R.R. at 5-
7).
Issue Presented
The trial court erred in denying appellant’s request to instruct the jury on a Class A misdemeanor lesser included offense and appellant was egregiously harmed.
Statement of Facts
The incident took place at T.J. Maxx on Richmond, near the Houston Galleria
(3 R.R. at 10).
Timothy McCoy testified for the state that he works for TJX Companies on a
“national task force, ORC investigator, which is organized retail crime” (3 R.R. at 12).
Mr. McCoy described his job as investigating various types of organized crimes for the
Houston area stores owned by the TJX Companies, one of which is the T.J. Maxx on
Richmond (3 R.R. at 12-13).
1 On November 24, 2014 McCoy received a call regarding the Richmond store,
where he was told there had been a theft (3 R.R. at 13). When he arrived at the store he
reviewed store videos and “saw that somebody had came (sic) into the store, selected
some merchandise and walked out with the alarm going off without paying for the
merchandise” (3 R.R. at 14). The state introduced State’s Exhibit 15, showing clips from
different cameras, at different times (3 R.R. at 15; 5 R.R. at State’s Ex. 15).
The first clip showed a woman walking into the store, who McCoy testified he
knew to be appellant from other investigations—“…I know her from sight and from
name”—he then made an in-court identification of appellant (3 R.R. at 16). The woman
was carrying a “reusable shopping bag that appeared to be empty” (3 R.R. at 16). The
next clip showed the same woman at “the Department 7 runway. And this is where we
keep high-dollar handbags and high-dollar fashion stuff” (3 R.R. at 16-17). McCoy
described the woman they were watching at that time as “wearing the bag on her arm
and the white cap on her head with a dark-colored coat” (3 R.R. at 17).
McCoy testified that in his experience, women carrying empty bags when they
come into a store are viewed by experts in his field to be “alert signal[s]” (3 R.R. at 17).
“Another thing we look at is how the particular individual is behaving, see if they’re
looking around at cameras, looking around for associates, things of that nature. Also,
the department itself is a high-dollar department where almost if you take one thing out
of there, it’s considered what the County considers a felony, so we watch that area as
well” (3 R.R. at 18). McCoy agreed with the state that “those indicators” had been 2 apparent to him in the tape (3 R.R.at 18).The state led McCoy through the rest of the
video, showing the subject moving through the store and then going out by the only
entrance and exit doors (3 R.R. at 18-19).
The state also entered several still photographs made from the video through
McCoy that showed the suspect entering the store with a bag that appeared to be empty,
picking up two purses from a display table, the same person in another part of the store,
then exiting with the same bag, now looking full (3 R.R. at 20; 5 R.R. at State’s Exs. 3-
12).
The jury next heard from Sally Carlson, a long-time sales manager with T.J. Maxx,
who was present on the day of the incident, when an alarm signaled that merchandise
had been taken out of the store (3 R.R. at 29-30). After watching the video, Carlson
determined which purses had been taken and determined their value from a “book with
pictures of every runway purse that we receive with style numbers and prices” (3 R.R.
at 31). Through Carlson, the state introduced a “receipt that you can put a department
and style number and it will come up with a price” (3 R.R. at 32). This process is what
the store does when things are stolen, “[to] determine the correct value” and the receipt
is kept in the loss prevention record (3 R.R. at 32; 5 R.R. at State’s Ex. 16). The receipt
showed the value of the two items to be $2349.98, which is over the statutory amount
for a state jail felony (3 R.R. at 33). Tex. Penal Code § 31.02(e)(4)(A).
Gloria Whitman, another organized crime and retail investigator for Marmaxx
Group, which owns T.J. Maxx, testified as the person “with more right to the property 3 than Kenashica Davison” (3 R.R. at 44). Whitman testified that she had investigated the
incident and had determined one of the two purses had been marked down by $100
from the price testified to by Carlson, but that the total value price was still over the
felony amount of $1500.00 (3 R.R. at 43).
Summary of Argument
Class A misdemeanor theft is a lesser included offense of state-jail felony theft.
Tex. Code Crim. Proc, art. 37.09 (1) & (2); Tex. Penal Code 31.03(a), (b)(1), (e)(3) &
(4)(A)(West 2015). There was more than a scintilla of evidence that appellant was
entitled to the misdemeanor instruction. See Hall v. State, 255 S.W.3d 524 (Tex. Crim.
App. 2007). Appellant preserved error and showed some harm, therefore the error is
reversible. Almanza v.State, 645 S.W. 2d 885 (Tex. Crim. App. 1984); Tex. Rules Crim.
Proc. 36. 19 (West 2015).
The trial court erred in denying appellant’s request to instruct the jury on a Class A misdemeanor lesser included offense and appellant was harmed.
Argument
A. Standard of Review and Pertinent Law
Whether or not an offense is a lesser-included offense of the alleged offense is a
matter of law. Hall v. State, 225 S.W.3d at 535. It does not depend on the evidence to
be produced at trial. It may be, and to provide notice to the defendant must be, capable
of being performed before trial by comparing the elements of the offense as they are
4 alleged in the indictment or information with the elements of the potential lesser-
included offense. Id., at 535-36.
A defendant is entitled to an instruction on a lesser-included offense where the proof for the offense charged includes the proof necessary to establish the lesser-included offense and 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. In this step of the analysis, anything more than a scintilla of evidence may be sufficient to entitle a defendant to a lesser charge. In other words, the evidence must establish the lesser-included offense as “a valid, rational alternative to the charged offense.”
Id., at 536, citations omitted.
Where, as here, there was an objection to the jury charge and a request for a
lesser-included offense, a court of appeals will reverse if there is “some harm” to the
appellant. Haley v. State, 369 S.W.3d 756, 766 (Tex. App.—Houston [14th Dist.] 2013,
no pet.), citing Almanza v. State, 686 S.W.2d at 171).
B. Appellant was Entitled to Lesser-Included Charge
1. Misdemeanor theft is a lesser-included offense of felony theft.
Two factors that make an offense a lesser-included offense are (1) if it is
established by proof of the same or less than all of the facts required to establish the
commission of the offense charged; or (2) if it differs from the offense charged only in
the respect that a less serious injury…to the person…suffices to establish its
commission. Tex. Rule Crim. Proc., art. 37.09(1) & (2) (West 2015).
In this case, the charged offense and the proposed lesser-included offense are
contained within the same statute; the only difference is the amount of loss to the 5 complainant—$500 or more but less than $1500 for the misdemeanor; $1500 or more
but less than $20,000 for the state jail felony. Tex. Penal Code §31.03 (a), (b)(1), (e)(3)
& (4)(A) (West 2015).
2. More than a scintilla of evidence supported the lesser-included offense.
Defense counsel objected to the court’s charge and requested a lesser-included
charge of Class A Misdemeanor be added to the charge based on “the testimony of
Sally Carlson where she testified that the merchandise that is alleged to have been stolen
in the indictment could be sold for 50 percent less than the $2543.85 that she testified
was the ticketed price” (3 R.R. at 50). Although Ms. Carlson did not testify to the
possibility of a 50% markdown of merchandise at T.J. Maxx, she did agree that
markdowns occur “at some point” (3 R.R. at 36). And Whitman, on direct examination,
implied that one of the purses at issue had been marked down at the time it was allegedly
stolen (3 R.R. at 43).
Carlson testified she was able to determine the value of the two purses that were
allegedly taken because the store keeps “a book with pictures of every runway purse
that we receive with style numbers and prices” (3 R.R. at 31). The book was not entered
into evidence; instead, the state showed Carlson what she described as “a receipt that
you can put a department and style number and it will come up with a price” (3 R.R. at
32). Carlson stated this procedure was typically done to determine the correct value of
a stolen item (3 R.R. at 32). The “receipt” showed a Chloe purse valued at $1499 and a
Marc Jacobs purse valued at $849.99” (3 R.R. at 33 & 34). The state did not ask her if 6 the values listed in the book of pictures were the same as those on the “receipt” (3 R.R.
at 31-34).
Defense counsel elicited from Carlson that “at some point” merchandise at the
store is “put on a clearance rack and sold at a price that’s reduced from the ticketed
price” (3 R.R. at 36). Reductions in the price of items are not noted in the picture log
(3 R.R. at 36). When runway items are reduced they remain in the same place as before
they are reduced (3 R.R. at 36). To Carlson’s knowledge, neither of the purses allegedly
taken by Ms. Davison had been reduced (3 R.R. at 36).
In fact, however, according to Ms. Whitman, her investigation had revealed the
Chloe purse was priced at $1399.99 (3 R.R. at 43). Her testimony does not reveal how
Whitman determined the purse was valued at less than Carlton’s “receipt” nor why the
“receipt” had a higher price. Whitman said she was aware the store believed the purse
was valued at $1499.99 (3 R.R. at 43).Whitman never stated the discrepancy was due to
a discounted price but when the state asked her “…to your knowledge, was either of
the bags discounted any further than that?” Whitman responded, “Not that I know of”
(3 R.R. at 43).
On cross-examination, the following exchange occurred:
Q. When merchandise is placed out on the sales floor, it is – it has a tag on it, right?
A. Yes, ma’am – yes, sir.
Q. And that tag has what we’ll call the ticketed sales price, correct?
7 A. Right.
Q. And at some point it’s typical for merchandise that has been there for a period of time to be discounted, correct?
A. I believe you call that a markdown.
Q. A markdown, right?
A. Yes.
Q. And do you know whether or not Chloe and Marc Jacobs bags, such as the ones that we’re talking about, were later marked down?
A. No sir, I do not.
(3 R.R. at 44-45).
Ms. Carlson testified the store does not keep a log of stolen items and such items
are not “reflected in [the store’s] accounts (3 R.R. at 39). Ms. Whitman stated
T.J. Maxx has a system for recording the values of stolen items, though she did not
elaborate on from where the information comes (3 R.R. at 45). Given that the store in
question apparently keeps neither a log of reductions nor of the losses from thefts, it is
difficult to see how the value of items could be known with certainty. All three of the
state’s witnesses testified their opinion was the value of the two purses was “over
$1500” but, essentially, these assertions were based only on the best of their knowledge.
McCoy stated the “Department 7 Runway” section “is a high-dollar department
where almost if you take one thing out of there, it’s considered what the County
considers a felony” (3 R.R. at 18). Carlson testified that the “receipt” valued the items
at over $1500 and agreed with the state that the two purses had not been reduced “to 8 the best of [her] knowledge” (3 R.R. at 36). Whitman testified that although one of the
purses was worth $100 less than Carlson claimed, the value of the two was “over $1500”
(3 R.R. at 43 & 45).
All of the above evidence gives rise to the possibility that not one of the state’s
witnesses actually knew the value of the purses on the day they were taken; they knew
the value on the day they were entered into the picture log and tagged—though no one
testified to what those values were when they were entered—and they knew what the
store “receipt” said was their prices on the day of the incident. One of those prices,
however, was wrong according to Whitman, but she failed to explain how she knew
that and was unable to say whether they had been further reduced when asked by
defense counsel.
A jury rationally could have found from the above evidence that if the appellant
was guilty, she was guilty only of the lesser-included offense; the evidence established a
valid, rational alternative to the charged offense. Hall v. State, 225 S.W.3d at 535-36. It
was, therefore, error for the trial court to fail to give the lesser-included instruction.1
1 Defense counsel’s inexplicable desire to put on the record his hours of research into the prices of similar purses from different sources and to reassure the trial court that neither he nor the state was able to locate the same pair of purses being sold for under $1500 is, of course, not evidence. 9 C. Appellant was harmed
“The appropriate standard for all errors in the jury charge, statutory or
constitutional, is that set out in Almanza.” Olivas v. State, 202 S.W.3d 137, 145 (Tex.
Crim. App. 2006).
If the error in the charge was the subject of a timely objection in the trial court, then reversal is required if the error is “calculated to injure the rights of defendant,” which means no more than some harm must result from the error.
Almanza v. State, 686 S.W.2d at 171.
Had the jury been given the option of convicting Ms. Davison of the Class A
misdemeanor theft, rather than the state-jail felony theft, and it chose the former, Ms.
Davison would have faced an enhanced sentence of 90 days up to one year in county
jail, rather than the enhanced third-degree felony range of two to ten years in the
Institutional Division of the Texas Department of Criminal Justice. Certainly, the loss
of that possibility due to the trial court’s error in denying the lesser-included request
caused appellant “some harm” and the conviction should be vacated. Almanza v. State,
686 S.W.2d at 171; Haley v. State, 369 S.W.3d at 766.
Prayer
In view of the foregoing argument, appellant requests this Court reverse her
conviction and remand her case to the trial court with instructions to grant her a new
trial.
10 Respectfully submitted,
ALEXANDER BUNIN Chief Public Defender Harris County Texas
/s/Melissa Martin ______________________________ Melissa Martin Assistant Public Defender Harris County Texas 1201 Franklin 13th Floor Houston Texas 77002 (713) 368-0016 (713) 437-4319 e-fax TBA No. 24002532
CERTIFICATE OF SERVICE
I certify that I provided a copy of the foregoing brief to the Harris County
District Attorney on the day the brief was accepted.
/s/ Melissa Martin ______________________________ MELISSA MARTIN Assistant Public Defender
11 CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4(i)(3), undersigned counsel certifies that this brief complies
with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).
1. Exclusive of the portions exempted by Tex. R. App. Proc. 9.4 (i)(1), this brief
contains 2,647 words printed in a proportionally spaced typeface.
2. This brief is printed in a proportionally spaced, serif typeface using Garamond
14 point font in text and Garamond 12 point font in footnotes produced by Microsoft
Word software.
3. Upon request, undersigned counsel will provide an electronic version of this brief
and/or a copy of the word printout to the Court.
4. Undersigned counsel understands that a material misrepresentation in completing
this certificate, or circumvention of the type-volume limits in Tex. R. App. Proc. 9.4(j),
may result in the Court's striking this brief and imposing sanctions against the person
who signed it.
/s/ Melissa Martin ______________________________ MELISSA MARTIN