Sharri Kaye Evenson v. State

Opinion

AFFIRMED; Opinion Filed March 14, 2014.

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-01124-CR

SHARRI KAYE EVENSON, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law No. 4 Collin County, Texas Trial Court Cause No. 004-87496-2011

MEMORANDUM OPINION Before Justices Moseley, Francis, and Lang Opinion by Justice Moseley Sharri Kaye Evenson appeals her conviction for theft of property valued between $50 and

$500. In three issues she argues: the trial court erred by denying her motion for continuance,

thereby violating her constitutional right to confront her accuser and to compulsory process, and

that the evidence is legally insufficient to show she acted intentionally or knowingly. The

background of the case and the evidence adduced at trial are well known to the parties; thus, we

do not recite them here in detail. Because all dispositive issues are settled in law, we issue this

memorandum opinion. TEX. R. APP. P. 47.2(a), 47.4. We affirm the trial court’s judgment.

While shopping at a JCPenny store, Evenson made several purchases to take advantage of

sales. A loss prevention officer, Analisa Brown, observed Evenson over a surveillance video

camera. According to testimony, Brown saw Evenson place a necklace into her bag without

paying for it. Brown entered the sales floor to investigate, and observed Evenson take additional merchandise. Brown stopped Evenson as she was exiting the store. Brown and her boss, Joe

Medina, a loss prevention supervisor at JCPenny, questioned Evenson and found eight pieces

jewelry in her bag that were not listed on her receipts. Medina prepared a loss prevention report

describing the incident. Evenson was charged with theft of property.

Before trial, Evenson filed a motion for continuance, which the trial court denied. At

trial, the court found Evenson guilty. She now appeals her conviction.

In Evenson’s first and second issues, she argues the trial court erred by denying her

motion for continuance. To preserve error on appeal, the record must show that the complaint

was made to the trial court by a timely request, objection, or motion that stated “the grounds for

the ruling . . . with sufficient specificity to make the trial court aware of the complaint, unless the

specific grounds were apparent from the context.” TEX. R. APP. P. 33.1(a). An objection must

allow the trial court to understand the precise grounds and to make an informed ruling. Dallas

Cnty. v. Crestview Corners Car Wash, 370 S.W.3d 25, 43 (Tex. App.—Dallas 2012, pet.

denied).

On appeal, Evenson contends the denial of her motion for continuance deprived her of

the opportunity to question Medina, who did not testify at trial. Evenson alleges that by not

giving her enough time to question Medina about the incident report, the trial court denied her

the right to confront her accuser under the United States Constitution, Texas Constitution, and

the Texas Code of Criminal Procedure. See U.S. CONST. amend. VI; TEX. CONST. art. 1 §10;

TEX. CODE CRIM. PRO. ANN. arts. 1.05, 1.25 (West 2005). Evenson further argues the trial court

violated her right to compulsory process under the U.S. and Texas Constitutions by not giving

her additional time to obtain medical records, which may have negated the mens rea or reduced

her punishment. See U.S. CONST. amend. VI; TEX. CONST. art. 1 §10; TEX. CODE CRIM. PRO.

ANN. art. 1.05.

–2– However, Evenson’s motion for continuance merely states that she was attempting to

obtain medical records and that her trial counsel would be out of the country for a week before

trial. The motion did not inform the trial court that she needed to question Medina or any other

potential witness. It does not argue that denying the motion would violate her constitutional

rights to confront her accuser or to compulsory process. It does not explain why her medical

records were relevant to the trial for theft.

On appeal, Evenson does not identify any other part of the record where her

confrontation clause or compulsory process arguments are preserved. Because the motion for

continuance did not state the grounds for the desired ruling with sufficient specificity, we

overrule Evenson’s first and second issues.

In Evenson’s third issue, she argues the evidence at trial was insufficient to support the

verdict because the evidence does not show she knowingly or intentionally appropriated

property. We review a challenge to the sufficiency of the evidence for an offense that the State

has the burden of proof under the single sufficiency standard set forth in Jackson v. Virginia, 443

U.S. 307 (1979). Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013). We examine

all the evidence in the light most favorable to the verdict and determine whether a rational trier

of fact could have found the essential elements of the offense beyond a reasonable doubt. Id.

We review all evidence in the record and consider its combined cumulative force. Merritt v.

State, 368 S.W.3d 516, 526 (Tex. Crim. App. 2012). Intent may be inferred from circumstantial

evidence, such as the accused’s acts, words, or conduct. Guevara v. State, 152 S.W.3d 45, 50

(Tex. Crim. App. 2004).

Brown, a loss prevention officer, testified that she saw Evenson drop jewelry in her bag

without paying for it. Brown saw Evenson do so both via the surveillance camera and while

Brown was on the sales floor. The court, the trier of fact, observed a surveillance video of the

–3– incident. Although, Evenson testified that she was confused and that the jewelry was placed in

her bag by mistake, either by her or a store clerk, we defer to the fact finder’s credibility

determination. See Matlock, 392 S.W.3d at 667. We overrule Evenson’s third issue.

We affirm the trial court’s judgment.

/Jim Moseley/ JIM MOSELEY Do Not Publish JUSTICE TEX. R. APP. P. 47 121124F.U05

–4– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

SHARRI KAYE EVENSON, Appellant On Appeal from the County Court at Law No. 4, Collin County, Texas No. 05-12-01124-CR V. Trial Court Cause No. 004-87496-2011. Opinion delivered by Justice Moseley. THE STATE OF TEXAS, Appellee Justices Francis and Lang participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 14th day of March, 2014.

/Jim Moseley/ JIM MOSELEY JUSTICE

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