Gonzalez v. State

• Decision Date: 29 July 2013
• Docket Number: NUMBER 13-11-00599-CR
• Parties: YOLANDA VARGAS GONZALEZ, Appellant, v. THE STATE OF TEXAS, Appellee.
• Court: Texas Court of Appeals

YOLANDA VARGAS GONZALEZ, Appellant,

v.THE STATE OF TEXAS, Appellee.

NUMBER 13-11-00599-CR

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

FILED: July 29, 2013

On appeal from the County Court at Law No. 4

of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Justices Garza, Benavides, and Perkes

Memorandum Opinion by Justice Perkes

Appellant Yolanda Vargas Gonzalez appeals her conviction of theft of property valued at more than $50.00 and less than $500.00, a class-B misdemeanor. See TEX. PENAL CODE ANN. § 31.03(a), (e)(2)(A)(i) (West Supp. 2011). A jury found appellant guilty, and the trial court assessed punishment at 90 days' confinement in the county jail and a $650.00 fine. The trial court suspended appellant's confinement and placed heron nine months probation. Appellant challenges: (1) the sufficiency of the evidence to support her conviction; (2) the sufficiency of the evidence to support her affirmative defense; (3) the trial court's charge to the jury; and (4) the trial court's imposition of a fine after it orally suspended appellant's sentence.¹ We affirm.

I. BACKGROUND²

Maya Martinez, a Macy's loss prevention detective, became suspicious of appellant after observing her pace back and forth in the young men's department. Detective Martinez watched as appellant was joined by her daughter and the two entered a fitting room together. Although they took a jacket, purple shirt, and some underwear garments with them, they exited carrying only the jacket. Detective Martinez inspected the fitting room after they left. None of the other items were present.

Detective Martinez followed them through the store. She testified that she saw appellant's daughter switch the price tag on a purse with a price tag from a cheaper one and hand it to her mother. Her mother then purchased the purse at the cheaper price, less an additional 10% from a discount coupon. The trial court admitted a copy of appellant's receipt and the two price tags, showing appellant's daughter placed a $98 price tag on a $228 purse.³

Detective Martinez testified that before appellant exited Macy's, appellant handed her daughter a shirt, which appellant had not purchased. Appellant's daughter placed it in her purse. Detective Martinez followed appellant outside, informed her that she was with loss prevention, and redirected her to the loss prevention office inside the Macy's store. Detective Martinez noticed appellant was wearing the purple shirt, which she had taken into the fitting room, under her outer sweater. Detective Martinez thereafter found five articles of underwear, a pair of earrings, and a shirt in appellant's daughter's handbag. None of these items were purchased. Detective Martinez asked appellant about her conduct, and "[s]he said I thought it was easy and I wasn't thinking." Detective Martinez's testimony was supported by video surveillance that was admitted into evidence and shown to the jury.

II. INSUFFICIENCY OF THE EVIDENCE

In her fourth through sixth issues, appellant argues that the evidence is factually insufficient, legally insufficient, and that no evidence exists, to support her conviction. In her seventh issue, she argues, in part, that the trial court erred by denying her motion for new trial, wherein she asserted her evidentiary sufficiency challenges. In reviewing appellant's brief, appellant's evidentiary sufficiency challenges appear to be premised on five main contentions: (1) the evidence is insufficient to convict appellant as the primary actor in the theft because her daughter stole most of the property; (2) the evidence is insufficient to convict appellant as a party to her daughter's theft because her daughter did not steal all of the charged items because appellant stole one item—a shirt; (3) the evidence is insufficient to prove appellant worked together with her daughter toappropriate property or knew of her daughter's price-switch on the purse to make appellant a party to those acts; (4) the evidence is insufficient to prove that the stolen property had a value of at least $50; and (5) the evidence is insufficient to prove the identity of the owner of the property. We address these points in turn.⁴

A. Standard of Review

"The standard for determining whether the evidence is legally sufficient to support a conviction is 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Johnson v. State, 364 S.W.3d 292, 293-94 (Tex. Crim. App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see Brooks v. State, 323 S.W.3d 893, 898-99 (Tex. Crim. App. 2010) (plurality op.). The fact-finder is the exclusive judge of the credibility of witnesses and of the weight to be given to their testimony. Anderson v. State, 322 S.W.3d 401, 405 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd) (citing Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008)).Reconciliation of conflicts in the evidence is within the fact-finder's exclusive province. Id. (citing Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000)). We must resolve any inconsistencies in the testimony in favor of the verdict. Id. (citing Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000)).

We measure the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). Such a charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Id. "A person commits an offense [of theft] if he unlawfully appropriates property with intent to deprive the owner of property." TEX. PENAL CODE ANN. § 31.03(a) (West 2011); Mendoza v. State, 923 S.W.2d 760, 763 n. 2 (Tex. App.—Corpus Christi 1996, no writ). "Appropriate" means "to acquire or otherwise exercise control over property other than real property," TEX. PENAL CODE ANN. § 31.01(4)(B) (West 2011), and such appropriation is "unlawful" if it is without the owner's effective consent. Id. § 31.03(b)(1). 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[.]" Id. § 1.07(a)(35)(A).

B. Discussion

(1) Primary Actor to Theft or a Party to Theft

Appellant complains that the evidence is insufficient to: (1) convict appellant as the primary actor because her daughter stole most of the property; (2) convict appellant as a party to her daughter's theft because her daughter did not steal all of the charged items; (3) prove appellant worked together with her daughter to appropriate property or that she knew of her daughter's price-switch on the purse to make her a party to those acts. Appellant contends that she has a "mistake of fact" defense because she allegedly was not aware of her daughter's deception in switching the price-tags.

The jury charge instructed the jury to convict if the evidence proved appellant was a primary actor to theft or a party to her daughter's theft. The party instruction tracked the relevant statutory language:

All persons are parties to an offense who are guilty of acting together in the commission of the offense. A person is criminally responsible as a party to an offense if the offense is committed by her own conduct, by the conduct of another for which she is criminally responsible, or by both.

A person is criminally responsible as a party for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, she solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. In this connection, you are instructed that mere presence of a person at the time of the offense is committed does not of itself constitute a person a party to an offense: but, when a person is actually present, she must either by words or agreement encourage another in the commission of an offense. Such agreement must be prior to or contemporaneous with the criminal event.

See TEX. PENAL CODE ANN. §§ 7.01, 7.02 (West 2011).

Appellant convolutedly argues that the evidence is insufficient to convict appellant as the primary actor for stealing all of the charged items because the daughter stole someitems; and that she cannot be a mere party to her daughter's theft because appellant clearly stole one item, thereby making her the primary actor in that theft. Appellant's argument discounts the possibility that appellant's theft of one of the items was done to aid her daughter's theft of all of the property. As properly noted in the charge, a person is criminally responsible as a party if the offense is committed by that person's own conduct, the conduct of another for which the person is criminally responsible, or by both. See TEX. PENAL CODE ANN. § 7.01 (West 2011) (emphasis added). That appellant acted together with her daughter and contributed to the theft does not exempt her from party status. See id.; Rivera v. State, 12 S.W.3d 572, 575 (Tex. App.—San Antonio 2000, pet. ref'd) (holding evidence must show that at the time of the offense the parties were acting together and that each contributed some part toward the execution of their common purpose) (citing Brooks v. State, 580 S.W.2d 825 (Tex. Crim. App. 1979)).

In determining whether a person attempts to aid another in the commission of an offense, the fact finder may consider events occurring before, during, or after the commission of the offense. Perez v. State, 41 S.W.3d 712, 717 (Tex. App.—Corpus Christi 2001, no pet.) (citing Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987)). "Furthermore,...