Curiel v. State

• Court: Texas Court of Appeals
• Writing for the Court: Memorandum Opinion by Justice Perkes
• Decision Date: 22 August 2019
• Docket Number: NUMBER 13-18-00014-CR
• Citation: Curiel v. State, NUMBER 13-18-00014-CR (Tex. App. Aug 22, 2019)
• Parties: JOSEFINA M. CURIEL, Appellant, v. THE STATE OF TEXAS, Appellee.

JOSEFINA M. CURIEL, Appellant, v. THE STATE OF TEXAS, Appellee.

NUMBER 13-18-00014-CR

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI-EDINBURG

August 22, 2019

On appeal from the County Court at Law No. 3 of Cameron County, Texas

MEMORANDUM OPINION

Before Justices Benavides, Hinojosa, and Perkes

Memorandum Opinion by Justice Perkes

A jury found appellant Josefina M. Curiel guilty of misdemeanor theft of property valued at $500 or more but less than $1,500. See TEX. PENAL CODE ANN. § 31.03(a), (e)(3). The trial court assessed punishment at eighteen months' confinement in the Cameron County Jail, suspended for twelve months of community supervision. By three issues, which we have reordered and consolidated, Curiel argues: (1) the evidence was legally¹ insufficient to support a theft conviction; (2) the trial court erred in admitting evidence of prior bad acts; and (3) the trial court erred in failing to submit a jury charge instruction on fair market value. We affirm.

I. BACKGROUND

Curiel was arrested on June 3, 2015, after Kohl's loss prevention personnel observed Curiel shoplifting. Curiel pleaded not guilty. At a motion in limine hearing prior to trial, Curiel's counsel sought to prevent the State from eliciting testimony regarding an unadjudicated Walmart theft from 2011 and unrelated misdemeanor Walmart theft conviction in 2016. No other prior convictions or bad acts were discussed. The trial court granted Curiel's motion in limine.

A. State's Case-in-Chief

At trial, the State called Jose Munoz, a loss prevention officer at Kohl's in Brownsville, as its first witness. Munoz recalled monitoring the store's exterior cameras closely on June 3, 2015, because it was a weekday and foot-traffic in the store was slow. At approximately 1:17 p.m., Munoz observed Curiel place an empty Kohl's plastic shopping bag into a cart before entering the store. When asked by the State to "walk [the jury] through what happened[,]" Munoz replied that Curiel "matched the description of a shoplifter that [his] manager had pointed out." Curiel immediately objected.

Outside the presence of the jury, the trial court attempted to ascertain how the witness was familiar with Curiel and whether the motion in limine was violated. BecauseMunoz did not explicitly identify Curiel as a known shoplifter, and instead, stated that she "matched the description" of a shoplifter, the trial court distinguished Munoz's statements from those prohibited under the ruling. The trial court overruled Curiel's objection, denied Curiel's request for a mistrial, and admonished the State: "I understand that these witnesses are interviewed at the last minute; but I do think that is very close to a violation of the motion in limine."

Munoz's testimony continued. While Munoz's supervisor Juan Antonio Rosendo monitored Curiel's movements via security cameras,² Munoz followed Curiel for two hours, disguised as a customer in plain-clothes. Munoz witnessed Curiel "feel for sensors," a movement Munoz associated with shoplifting. "[Shoplifters] run their hands through the whole clothing to see if there's [sic] sensors on the clothing," explained Munoz.

Munoz testified that as soon as he observed Curiel walking in the direction of the fitting rooms, he quickly went into each of the five stalls to remove any previously left-behind merchandise. Curiel entered the fitting rooms shortly after, where she remained for approximately twenty minutes. After Curiel exited, Munoz re-entered the stall, and he observed empty hangers and clothing scattered about. Munoz counted more hangers than there were items of clothing left behind. Meanwhile, Curiel proceeded to the cash registers, where she interacted with the cashier for five minutes before Curiel purchased five items. Curiel then placed her single shopping bag into her cart and exited the store walking backwards.

Once in the parking lot, Munoz and Rosendo contacted Curiel and asked her to return inside the store. Munoz stated he recovered clothing and jewelry with tags still affixed inside a plastic bag underneath the bag of five items that Curiel purchased. Several of the items taken matched items that Curiel was seen on surveillance placing into her cart. Munoz determined the twenty-seven items recovered were collectively valued at $933. Munoz testified the amount was based on the combined retail price although several items recovered were marked as clearance.

During cross-examination, Curiel asked Munoz to better explain his usage of the term "retail."

Q. See, because the term "retail," I'm trying to define what retail means. It's an important term for the ladies of the jury because you've accused her of having stolen over $500 of items. But the valuation comes from what? Because retail item is the item—when an item is for sale and the price of that item; is that correct?

A. No, sir.

Q. That is not correct. So what does retail mean?

A. Retail means the price that's on the tag which is marked value at all the stores. If you go to JCPenney, they'll have the same $30 Nike shirt. If you go to Kohl's, it's going to have the same $30 Nike shirt. If you get it on sale, you might get it for $20. At JCPenney, you might get it for [$]25. That's the sale price.

. . .

Q. Okay. Just to be certain because the ladies are going to hear this, you put here at [State's Exhibit] No. 13 Chaps men's shirts?

A. Yes.

Q. You put the retail price at $60?

A. Yes, sir.

Q. Now, what we do know is once you blow that up, what's the sticker price for that shirt?

A. That's the clearance sticker. We go by the tag.

. . .

A. The sale price is $24.

Curiel also questioned whether it was possible to return clothing items without a receipt and whether what Munoz, in fact, observed was Curiel "pick[ing] items to replace the ones she walked in with." Munoz testified that pursuant to Kohl's policy, items could be returned and exchanged without a receipt. However, Munoz testified that he did not see Curiel ask any Kohl's staff about an exchange, nor did he believe the plastic Kohl's shopping bags Curiel entered with contained any merchandise. Rosendo's testimony at trial paralleled Munoz's.

B. Defense's Case-in-Chief

During direct-examination, Curiel spoke at-length about the "embarrassing" day that she would "never forget[.]" Curiel testified: "It was my birthday and my son's birthday. And we were going to celebrate the date. We were going to go to church and then eat somewhere and praise." But before effectuating her birthday plans, Curiel decided to go to Kohl's to exchange some clothing that she had received. According to Curiel, a friend who now resides in California had given her clothing, unwrapped and still inside a Kohl's plastic bag. Her son's girlfriend also "gave him the bag with his clothes." Neither the friend nor girlfriend provided Curiel with a receipt. Though not captured on any surveillance camera recording, Curiel testified that a Kohl's sales associate instructed her to find clothes to exchange with the ones she sought to return.

Curiel explained that her leisurely pace hastened after she received a call from her daughter telling her that she "need[ed] to hurry because it [was] almost time" for church. Once in the fitting room, which Curiel described as a "mess," Curiel received a text message from her son, asking her to "[j]ust leave it there. Leave everything there and come home." At that point, Curiel claimed she left everything: "The shirts, the blouses, the bracelets, everything that I got [sic]. Everything that I was going to exchange, I leave [sic] it in the dressing room."

Curiel paid for a handful of items that were on clearance and left the store. She said she was then approached by an unknown man in the parking lot, who urged her to return inside. Curiel stated that she complied and was taken to a room, where she became the recipient of "bad words" and "laught[er]" from Munoz and Rosendo.

During cross-examination, the State asked Curiel to elaborate how she knew precisely which items to replace if she never removed the items from the bag to check or compare.

Q. So you're saying these are exact duplicates of this?

A. Different sizes.

Q. Different sizes? How do you know what sizes you got there as compared to the bag's size? You memorized the entire contents of your bag?

A. Yes. I knew what sizes were like.

When asked what size she wore, Curiel initially testified that she did not remember, before answering: "It depends the kind of clothes. Sometimes I can be small. Sometimes I can be medium. Sometimes I can be large. It depends, you know . . . ."

Curiel then accused Kohl's of stealing from her and mistreating her. Curiel stated she recalled telling Munoz, "I'm going to sue because of what you did to me." After a brief discussion outside the presence of the jury, questioning resumed and Curiel subsequently claimed she did not "remember" and "didn't know" whether she brought a suit against Kohl's. Further questioning prompted Curiel to admit that she filed suit against Kohl's on June 2, 2017, claiming $100,000 in damages for defamation, false imprisonment, and intentional infliction of emotional distress.

C. Charge Conference

During the jury charge conference, Curiel requested a definition of "fair market value." The trial court denied Curiel's request, stating, "I am not inclined to include: 'Fair market value means the price the property will bring when offered for sale by one who desires to sell, but is not obliged to sell, and is bought by one who desires to buy, but is not under the necessity of buying.' That sounds unduly complicated. . . ." Instead, the trial court included the language provided by the statute. See TEX. PENAL CODE ANN. § 31.08(a), (c).

The jury returned a guilty verdict, and the judge assessed Curiel's punishment. This appeal followed.

II. LEGAL SUFFICIENCY OF THE EVIDENCE

A. Standard of Review and Applicable Law

When reviewing claims of legal insufficiency, the relevant question is whether, after viewing the evidence in the...