Tucker, Courtney Monique v. State

• Court: Court of Appeals of Texas
• Decided: August 15, 2002
• Docket: 01-01-00873-CR
• Status: Published

Opinion

Opinion issued August 15, 2002

In The

Court of Appeals

For The

First District of Texas

NO. 01-01-00873-CR

COURTNEY MONIQUE TUCKER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 2

Harris County, Texas

Trial Court Cause No. 1055601

O P I N I O N

A jury convicted appellant of theft of property worth over $500, but less than $1,500. The court assessed punishment at confinement for 240 days in county jail and a fine of $1,500. In six points of error, appellant contests the legal and factual sufficiency of the evidence. We affirm.

Background

The theft occurred on April 21, 2001, at the Sharpstown Mall Foley's store in Houston. Appellant's mother, Vivian Tucker, (the mother) carried clothing priced at $961.99 out of the store without paying for the merchandise. Much of the activity surrounding the theft was captured by the store's surveillance cameras. We have reviewed the videotapes that were introduced into evidence and played for the jury. Narvin Jack, a Foley's loss-prevention officer working on the store floor, first observed the mother drop some clothes in the store and leave to move a car. This activity seemed suspicious to Jack. He then observed appellant and Mary Thompson moving through various departments with several items of merchandise. The two women then took a seat in the ladies shoes section and were joined briefly by the mother who had returned to the store. Neither appellant nor her mother carried a purse, and this also seemed suspicious to Jack.

After a brief conversation, the mother left and selected an armload of clothing. She placed the clothes on a display-table near an exit to the parking lot. The mother then went about selecting a second armload of clothes. Appellant and Thompson passed the mother in the store again. Appellant and her mother appeared to speak briefly and gestures were exchanged.

Appellant and Thompson eventually moved toward an exit and placed the items they had collected on another display-table located across an aisle from the table where the mother had earlier laid her first load of clothes. The mother, carrying her second armload of clothes, was walking approximately 15 feet behind the two as they approached the display-table. The mother stopped at the table containing her first group of items. While the mother picked up this set of clothes, the videotape shows appellant and Thompson arranging their clothes and shoes on the display-table across the aisle. The mother then crossed the aisle and arrived at the display-table containing the items gathered by appellant and Thompson just as the two were completing their arranging and beginning to leave. The videotape shows that appellant and her mother were standing side-by-side, within inches of each other at this display table for a brief instant before appellant began walking for the door. It took the mother approximately 10 seconds to pick up the items left by appellant and Thompson before she advanced to the exit door a few yards away.

Foley's loss-prevention officers had been monitoring all three. Several officers were waiting outside and quickly detained the mother. According to appellant's testimony, she and Thompson were about 10 feet away when her mother was forcibly detained behind them. The two began to walk quickly to their right and were then detained by Jack, who had exited from another door and was walking towards them.

Appellant testified that she had instructed her mother to stay in the car while she and her friend shopped because she knew her mother had a habit of stealing things. Appellant admitted that she was on probation for two robbery convictions and had a previous theft conviction. Because she was on probation, appellant was concerned that her mother's actions might cause her trouble. She told her mother to go back to the car and later decided to leave the store when she anticipated that her mother was about to "try to do something stupid." Appellant testified that she did not realize how close her mother was when she set her clothes down and left.

Standards of Review

When evaluating the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). A factual sufficiency review requires us to 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 confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Id. at 563.

Ownership for Purposes of Theft Charge

The charging information names Narvin Jack as the owner of the property taken out of the Foley's store. In her fifth and sixth points of error, appellant contends that the evidence is legally and factually insufficient to establish that Jack is the owner of the property. We address these points first because appellant's other points of error assume, without conceding, that this issue has been resolved against her.

A person commits theft if he or she unlawfully appropriates property with the intent to deprive the owner of the property. See Tex. Pen. Code Ann. § 31.03(a) (Vernon Supp. 2002). The name of the property owner must be alleged in the charging instrument. See Freeman v. State, 707 S.W.2d 597, 602 (Tex. Crim. App. 1986). An "owner" is 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." Tex. Pen. Code Ann. §1.07(a)(35) (Vernon 1994). "Possession" is defined as "actual care, custody, control, or management." Tex. Pen. Code Ann. §1.07(a)(39) (Vernon 1994).

The Legislature intended the term "owner" to have an "expansive" meaning in order "to give anyone with a conceivable connection to the property ownership status." Freeman, 707 S.W.2d at 603. A store security guard may be an owner of the company's merchandise for purposes of the theft statute if, at the time the offense is committed, he had a greater right to possession than the accused. Id.; see also Inman v. State, 650 S.W.2d 417, 419 (Tex. Crim. App. 1983) (holding that nature of employment qualified car lot security guard as owner even though title to stolen car held by unnamed customer).

Testimony showed that Jack was employed by Foley's as a loss-prevention officer. It was his job to detect and apprehend those who stole Foley's merchandise. Jack testified that he, as a loss-prevention officer, believed he had a greater right of possession to merchandise than someone who did not pay for it. No evidence suggested that appellant had any ownership interest in the clothing. Given the expansive statutory definition for "owner" and the nature of Jack's work, we hold that the evidence was legally and factually sufficient to support the jury's finding that Jack was the owner of the property described in the information.

We overrule appellant's fifth and sixth points of error.

Sufficiency as a Party to the Theft

Appellant was charged as both a principal actor and a party to the crime. In her third and fourth points of error, appellant asserts the evidence was legally and factually insufficient for the jury to convict her as a party to the theft. A person is criminally responsible as a party to an offense if the offense is committed by his conduct or by the conduct of another for which he is criminally responsible. Tex. Pen. Code. Ann. §7.01(a) (Vernon 1994). 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. Tex. Pen. Code. Ann. §7.02(a)(2) (Vernon 1994). We may look to events occurring before, during, and after the commission of the offense when determining whether one participated as a party, and we may rely on actions of the defendant that show an understanding and common design to do the prohibited act. Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994) (opinion on rehearing). Circumstantial evidence may be sufficient to show one is a party to an offense. Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987) (theft case); Thomas v. State, 915 S.W.2d 597, 599 (Tex. App.--Houston [14th Dist.] 1996, writ ref'd) (theft case).

The evidence clearly shows that the mother committed theft when she removed the clothes from the store without paying. Our focus here is whether appellant, acting with intent to promote or assist the commission of the theft, solicited, encouraged, directed, aided, or attempted to aid her mother in committing the offense.

Appellant admits that all three women came to the mall together. The evidence indicates that appellant communicated with her mother several times as both were selecting items from throughout the store. We have already summarized how appellant gathered clothes and placed them on a table near an exit just seconds before her mother picked up the items and ran out of the store. Jack testified, based on his observations and experience as a loss-prevention officer, that he believed the three were working together.

The jury could conclude, based on this evidence, that appellant intentionally aided the commission of theft by her mother. Although appellant testified that she did not intend to aid the theft, the jury, as the exclusive judge of witness credibility, was entitled to not believe all or any portion of appellant's testimony. See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). We hold that the evidence was legally and factually sufficient to support the verdict.

We overrule appellant's third and fourth points of error.

In her first two points of error, appellant asserts the evidence is legally and factually insufficient to uphold her conviction as the principal actor in the crime. Having already found the evidence sufficient to uphold the conviction under the law of parties, however, we need not address these points of error.

We affirm the conviction.

Michael H. Schneider

Chief Justice

Panel consists of Chief Justice Schneider and Justices Taft and Radack.

Do not publish. Tex. R. App. P. 47.