Lang v. State, 03-15-00332-CR

• Decision Date: 05 May 2017
• Docket Number: NO. 03-15-00332-CR,03-15-00332-CR
• Parties: Terri Regina Lang, Appellant v. The State of Texas, Appellee
• Court: Texas Court of Appeals

Terri Regina Lang, Appellant v. The State of Texas, Appellee

NO. 03-15-00332-CR

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

May 5, 2017

FROM THE DISTRICT COURT OF BURNET COUNTY, 424TH JUDICIAL DISTRICT

NO. 42185, THE HONORABLE EVAN C. STUBBS, JUDGE PRESIDING

MEMORANDUM OPINION

A jury convicted appellant Terri Regina Lang of the offense of organized retail theft involving merchandise valued at $500 or more but less than $1,500, see Tex. Penal Code § 31.16(b)(1), (c)(3), and the trial court assessed her punishment at confinement for 20 months in a state jail facility, see id. §§ 31.16(c)(3), 12.35.¹ On appeal, appellant challenges the sufficiency of the evidence and complains about the imposition of court-appointed attorney's fees. We find no reversible error. However, through our own review of the record, we have found non-reversible clerical error in the written judgment of conviction. Sustaining appellant's complaint aboutattorney's fees, we will modify the judgment to correct the errors and, as modified, affirm the trial court's judgment of conviction.

BACKGROUND²

As appellant was shopping at HEB, an employee observed her putting the groceries and merchandise items inside reusable bags in her cart instead of directly in the cart. The employee thought this unusual and continued to observe appellant as she shopped for about one hour before she approached the checkout. In addition to several reusable bags inside of the cart, appellant had one bag tied to the right-hand side of the cart away from the register. The employee saw appellant remove all the bags inside the cart and place them on the conveyor belt for the cashier to scan. She did not do so with the bag tied to the side of the cart. The employee alerted her manager about the possibility of someone leaving the store with merchandise not paid for.

After appellant paid for the items scanned by the cashier, she headed toward the main doors to exit the store, opening a beverage that she removed from the bag tied to the side of the cart on the way. The employee and her manager stopped appellant before she left the store, returned her inside, and called the police. The value of the items in the bag tied to the cart, which appellant had not paid for, was $582.10. The cost of the purchased items was $262.17.

DISCUSSION

In her first two points of error, appellant challenges the sufficiency of the evidence supporting her conviction for organized retail theft.

Sufficiency of the Evidence

Due process requires that the State prove, beyond a reasonable doubt, every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 313 (1979); Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014). When reviewing the sufficiency of the evidence to support a conviction, we consider all the evidence in the light most favorable to the verdict to determine whether, based on that evidence and the reasonable inferences therefrom, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). We assume that the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. Jackson, 443 U.S. at 318; see Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009).

Because factfinders are permitted to make reasonable inferences, "[i]t is not necessary that the evidence directly proves the defendant's guilt; circumstantial evidence is as probative as direct evidence in establishing the guilt of the actor, and circumstantial evidence alone can be sufficient to establish guilt." Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013) (citing Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)); see Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016); Nowlin v. State, 473 S.W.3d 312, 317 (Tex. Crim. App. 2015). The standard of review is the same for direct and circumstantial evidence cases. Jenkins v. State,493 S.W.3d 583, 599 (Tex. Crim. App. 2016); Nowlin, 473 S.W.3d at 317; Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014).

Appellant was charged by indictment with the offense of organized retail theft under Penal Code section 31.16. The indictment alleged, in relevant part, that appellant

did then and there intentionally conduct and promote and facilitate an activity in which [appellant] received and possessed and concealed and stored stolen retail merchandise, to wit: groceries, herbal supplements, energy drinks and animal treats, and the total value of the merchandise involved in the activity was greater than $500 but less than $1500[.]

See Tex. Penal Code § 31.16(b)(1). In challenging the sufficiency of the evidence, appellant maintains that the evidence is insufficient to support her conviction because "organized retail theft is not an activity that can be committed alone through ordinary shoplifting." She makes two arguments regarding sufficiency of the evidence. First, appellant argues that the evidence was insufficient because organized retail theft cannot be committed alone and there was no evidence that appellant acted with others. Second, appellant asserts that the evidence was insufficient because the offense cannot be committed by "merely shoplifting." Appellant presents her sufficiency argument by raising two "conundrums": "[C]an an ordinary shoplifter commit organized retail theft when acting alone, and relatedly, can such a shoplifter commit organized retail theft by the very act of shoplifting, that is, does the statute criminalize the underlying theft?" (emphases in brief).

To resolve these questions, and appellant's sufficiency challenges, we must construe the organized retail theft statute. See Boston v. State, 410 S.W.3d 321, 325 (Tex. Crim. App. 2013) (construing robbery statute to resolve appellant's claim that evidence was insufficient). In analyzinga statute, we "seek to effectuate the 'collective' intent or purpose of the legislators who enacted the legislation." Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991); see Cary v. State, 507 S.W.3d 750, 756 (Tex. Crim. App. 2016); Johnson v. State, 423 S.W.3d 385, 394 (Tex. Crim. App. 2014). To do so, we first look to the literal text of the statute because "the text of the statute is the law in the sense that it is the only thing actually adopted by the legislators, probably through compromise, and submitted to the Governor." Whitfield v. State, 430 S.W.3d 405, 408 (Tex. Crim. App. 2014) (quoting Boykin, 818 S.W.2d at 785). To determine the plain meaning of the statutory language, we consult dictionary definitions, apply the normal rules of grammar and common usage, and consider words and phrases in context. Cary, 507 S.W.3d at 756; Ex parte Perry, 483 S.W.3d 884, 902 (Tex. Crim. App. 2016); Yazdchi v. State, 428 S.W.3d 831, 837 (Tex. Crim. App. 2014); see Tex. Gov't Code § 311.011(a). We presume that every word in a statute has been used for a purpose and that each word, clause, and sentence should be given effect if reasonably possible. Cary, 507 S.W.3d at 756; Perry, 483 S.W.3d at 902-03; Yazdchi, 428 S.W.3d at 837.

We give effect to the plain meaning of the statute's language unless the language is ambiguous or the plain meaning leads to absurd results that the Legislature could not have possibly intended. Cary, 507 S.W.3d at 756; Chase v. State, 448 S.W.3d 6, 11 (Tex. Crim. App. 2014); Boykin, 818 S.W.2d at 785. Only if the text of a statute is ambiguous, or the plain meaning leads to such absurd results, should we review extra-textual resources to discern the collective intent of the legislators that voted to pass the bill. Cary, 507 S.W.3d at 756; Boykin, 818 S.W.2d at 785. Ambiguity exists when the statutory language may be understood by reasonably well-informed persons in two or more different senses; conversely, a statute is unambiguous when it permits onlyone reasonable understanding. State v. Schunior, 506 S.W.3d 29, 34-35 (Tex. Crim. App. 2016); Phillips v. State, 463 S.W.3d 59, 65 (Tex. Crim. App. 2015); Yazdchi, 428 S.W.3d at 838; see Chase, 448 S.W.3d at 11 (statute is ambiguous when it is "reasonably susceptible to more than one understanding").

Appellant relies on section 311.023 of the Government Code, which articulates relevant factors that courts may consider when construing a statute "whether or not the statute is considered ambiguous on its face," see Tex. Gov't Code § 311.023, to engage in a review of the legislative history of the statute to support his claim that "an absurdity results."³ However, the Court of Criminal Appeals has determined that despite the broad latitude afforded by the Legislature in the Code Construction Act, only if the statutory language is ambiguous, or leads to absurd results that the Legislature could not have possibly intended, may courts consult extra-textual sources. See Gipson v. State, 428 S.W.3d 107, 112 (Tex. Crim. App. 2014); Johnson, 423 S.W.3d at 394; see also Whitfield, 430 S.W.3d at 408 ("If the plain language of a statute would lead to absurd results, or if the language is not plain but rather ambiguous, then and only then, out of absolute necessity, is it constitutionally permissible for a court to consider . . . such extra textual factors as executive or administrative interpretations of the statute or legislative history.") (quoting Boykin, 818 S.W.2d at 785-86); Ex parte Spann, 132 S.W.3d 390, 393 (Tex. Crim. App. 2004) ("[D]espite the broad latitude afforded by the legislature [in Government Code section 311.023], this Court considers 'extra-textual factors' such as legislative history only when the plain language of the statute is'ambiguous' or when a literal interpretation would lead to 'absurd results.'") (citing Boykin, 818 S.W.2d at 785). As an intermediate appellate court, we are bound by the decisions of the Texas Court of Criminal Appeals in criminal cases and have no authority to...