Farrell v. State
| Decision Date | 31 July 1992 |
| Docket Number | No. 05-91-00649,05-91-00649 |
| Citation | 837 S.W.2d 395 |
| Parties | Felisha FARRELL a/k/a Latasha Renee Brown, Appellant, v. The STATE of Texas, Appellee. /650-CR. |
| Court | Texas Court of Appeals |
John G. Tatum, Dallas, for appellant.
Sharon Batjer, Dallas, for appellee.
Before LAGARDE, KINKEADE and KAPLAN, JJ.
The trial court convicted Felisha Farrell of theft from the person and credit card abuse. Punishment in each case, enhanced by two prior convictions, was assessed at forty-five years' confinement. In five points of error, appellant contends that the evidence is insufficient to support both convictions and that the trial court erred in admitting a charge slip, videotape recording, and photograph into evidence. We affirm appellant's conviction for credit card abuse. We reverse appellant's conviction for theft from the person and enter a judgment of aquittal.
Billie Kay West went grocery shopping with her daughter on September 30, 1990, at about 1:30 p.m. 1 West put her purse in the raised portion of the shopping cart. Her wallet was in the purse. West's daughter took money out of the wallet to buy a Coke. The purse was left unzipped.
Appellant approached West and asked if she knew where the forty-nine cent paper towels were located. West looked for the paper towels, turning her back to the shopping cart and appellant. During this time, appellant was within arm's reach of the shopping cart. West was a few feet away from the cart. West found some paper towels that were sixty-nine cents and handed them to appellant.
West continued shopping. She had gone down the next aisle when she realized that her wallet was missing. West looked for the wallet and then reported the theft to the store manager. Among the items in the wallet was a Sears credit card and her driver's license. West testified that she had not encountered anyone in the grocery store other than appellant. West was later shown a photo line-up. She immediately identified appellant as the person who approached her in the grocery store.
Barbara Williams testified that she works in the electronics department at Sears. Appellant came into her department on September 3, 1990, at about 3:30 p.m. Appellant told Williams that she wanted to buy an RCA camcorder valued at over $1000. Williams began writing up the sales ticket. Appellant indicated that she wanted to charge the purchase and handed Williams a Sears charge card. The card was issued to Billie Kay West. Williams then asked appellant for a driver's license. Appellant produced a license issued to West but bearing appellant's picture. Williams testified that she thought the license had been altered. Williams processed the transaction. Appellant signed West's name to the sales receipt.
Williams went to the stock room, purportedly to get the camcorder. Instead, she called security. Williams returned to the floor and told appellant that they were out of the requested merchandise. She told appellant that they could order the camcorder, but appellant declined the offer. Appellant left the store.
A store manager called the credit department and got West's telephone number. After talking with West, the manager pursued appellant after she left the store. Appellant was apprehended and taken to the security office. Williams identified appellant as the person who tried to use West's credit card to buy the camcorder.
Appellant testified on her own behalf. Appellant testified that she went to the grocery store with Monica Davis to buy some paper towels. She admitted that she noticed West's wallet lying in her purse, but testified that Davis took the wallet. Appellant purchased the paper towels and left the store. Appellant and Davis proceeded to the mall.
Appellant testified that she went into the main part of the mall and Davis went to Sears. When appellant finished her shopping, she went into Sears to find Davis. Davis was in the electronic's department. Davis told her that the salesperson had gone to get a camcorder and asked appellant to wait at the counter while she went to the restroom. Davis gave appellant the credit card and left. The salesperson returned and indicated that they were out of the camcorders. Just then, Davis returned and said, "Let's get out of here." She took the credit card from appellant and left. Appellant was walking to the car when she was confronted by the store manager. On cross-examination, appellant admitted to numerous misdemeanor theft convictions in which she used various aliases.
In two points of error, appellant contends that the evidence is insufficient to support her convictions for theft from the person and credit card abuse.
In determining the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict. We determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Turner v. State, 805 S.W.2d 423, 425 (Tex.Crim.App.), cert. denied, 502 U.S. 870, 112 S.Ct. 202, 116 L.Ed.2d 162 (1991). If the evidence supports an inference other than the guilt of the accused, a finding of guilt beyond a reasonable doubt is not a rational finding. Carlsen v. State, 654 S.W.2d 444, 449 (Tex.Crim.App.1983), overruled, Geesa v. State, 820 S.W.2d 154, 161 (Tex.Crim.App.1991). 2
The trial court, as the trier of fact, is the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony. Limuel v. State, 568 S.W.2d 309, 311 (Tex.Crim.App. [Panel Op.] 1978). The trial court may accept or reject any portion of a witness' testimony. Id.
In her first point of error, appellant contends that the evidence is insufficient to support her conviction for theft from the person of another. Specifically, appellant argues that the evidence fails to establish that she took the wallet "from the person" of Billie Kay West as alleged in the indictment.
Theft occurs when a person unlawfully appropriates property with the intent to permanently deprive the owner of the property. TEX.PENAL CODE ANN. § 31.03(a) (Vernon 1989). Theft becomes a third degree felony if the property is stolen from the person of another. TEX.PENAL CODE ANN. § 31.03(e)(4)(B) (Vernon Supp.1992). To sustain a conviction for theft from the person, the evidence must show that the property was taken from the physical body of the person or from his grasp or immediate possession. Earls v. State, 707 S.W.2d 82, 85 (Tex.Crim.App.1986); see, e.g., Mack v. State, 465 S.W.2d 941, 942 (Tex.Crim.App.1971); Alfred v. State, 659 S.W.2d 97, 98 (Tex.App.--Houston [14th Dist.] 1983, no pet.) (theft of purse from shopping cart was theft from the person where complainant's hand was on the cart).
It is the risk of fright or injury that distinguishes theft from a person from ordinary theft. Earls, 707 S.W.2d at 86. Theft from a person involves a risk of fright or injury because a struggle might ensue or a defendant might injure a person in order to take the property. Id. The interest in punishing conduct that involves the risk of injury inherent in taking property from a person makes the theft a felony regardless of the value of the property taken. Id; see also TEX.PENAL CODE ANN. § 31.03(d)(4)(B).
The evidence adduced at trial fails to establish that West's wallet was taken from her person, from her grasp, or from her immediate possession. 3 West placed her purse in the raised portion of the shopping cart. Although she initially said that she had care, custody, and control over her purse, West later testified that she was two to three feet from the shopping cart. West admitted that she was not within arm's reach of the cart. Her back was to appellant and the cart when the wallet was taken. West did not discover the theft until several minutes after appellant had left.
After reviewing the record in the light most favorable to the State, we cannot conclude that West's wallet was taken "from her person" within the meaning of section 31.03(e)(4)(B) of the Penal Code. The evidence is insufficient to support the theft conviction. We sustain appellant's first point of error.
In her second point of error, appellant contends that the evidence is insufficient to support her conviction for credit card abuse. Specifically, appellant argues that the evidence fails to establish that she had the intent to fraudulently obtain property as alleged in the indictment. She argues that any such intent was negated when she declined the salesperson's offer to order the camcorder.
Appellant was indicted under section 32.31(b)(1)(A) of the Penal Code. The constituent elements of credit card abuse, as delineated in that section, are: (1) a person, (2) with the intent to fraudulently obtain property or services, (3) presents or uses a credit card, (4) with knowledge that the card was not issued to her, and (5) with knowledge that it is not used with the effective consent of the cardholder. Ex parte Mathis, 571 S.W.2d 186, 187 (Tex.Crim.App.1978); TEX.PENAL CODE ANN. § 32.31(b)(1)(A) (Vernon 1989). Appellant challenges only the sufficiency of the evidence to prove the second element--that she had the intent to fraudulently obtain property.
Intent can be inferred from the acts, words, and conduct of the accused. Williams v. State, 796 S.W.2d 793, 797 (Tex.App.--San Antonio 1990, no pet.). The law presumes that a person intends the natural and probable consequences of his voluntary acts. Stallings v. State, 476 S.W.2d 679, 680 (Tex.Crim.App.1972); Emerson v. State, 662 S.W.2d 92, 96 (Tex.App.--Houston [1st Dist.] 1983), aff'd, 727 S.W.2d 267 (Tex.Crim.App.1987). Intent is a question of fact to be determined by the trier of fact from all the circumstances and facts in evidence. Williams, 796 S.W.2d at 797.
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