Thierry v. State

• Decision Date: 12 February 2009
• Docket Number: No. 01-07-00712-CR.,01-07-00712-CR.
• Citation: 288 S.W.3d 80
• Parties: Candace Sue THIERRY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

288 S.W.3d 80

Candace Sue THIERRY, Appellant, v. The STATE of Texas, Appellee.

No. 01-07-00712-CR.

Court of Appeals of Texas, Houston (1st Dist.).

February 12, 2009.

Discretionary Review Refused July 1, 2009.

Brian M. Middleton, The Middleton Law Firm, PLLC, Houston, TX, for Appellant.

Kristen Moore, John J. Harrity III, Assistant District Attorneys, John F. Healy, Jr., Richmond, TX, for Appellee.

Panel consists of Justices TAFT, KEYES, and ALCALA.

OPINION

TIM TAFT, Justice.

A jury convicted appellant, Candace Sue Thierry, of fraudulent use or possession of identifying information and assessed punishment at 15 months in state jail. See TEX. PENAL CODE ANN. § 32.51 (Vernon Supp.2008). We determine (1) whether appellant preserved any error regarding certain prosecutorial comments during opening statement and closing argument and any error regarding the admission of certain testimony from the complainant, (2) whether the trial court abused its discretion in admitting a videotape, and (3) whether the trial court erred in denying appellant's motion for directed verdict challenging the sufficiency of the evidence to establish venue. We affirm.

Facts

Sue Speck, the complainant, was referred to Dr. Campos at Oncology Consultants for chemotherapy and followup treatments, following surgery for breast cancer in 1994. She visited his offices from 1994 through 2005, initially going every six weeks, then every few months, and finally once a year. At each appointment, Speck was required to disclose identification information, including address, social security number, driver's license number, and date of birth on forms for her patient record. Appellant was employed at Oncology Consultants during 2005 as a medical assistant and had access to patient information.

In September of 2005, Speck began receiving credit cards in the mail, in variants of her name, from companies with whom she did not have credit accounts. One was a Mervyn's card in the name of Candace S. Speck. Speck, who was the mayor of Hedwig Village, contacted the Hedwig Village Police Department.

As part of his investigation of the matter, Hedwig Village Police Detective Steven Packard called each of the stores from which Speck received credit cards. Paul Parent, the loss-prevention manager at Mervyn's, found receipts and videotaped footage of the transactions on the store's video security system, which had recorded someone using identifying information to open a credit account that matched the account information Packard had given to the store.

Packard put together a photo array, which included appellant's picture, and showed it to Sybil Moji, the cashier who handled the transaction, who immediately identified appellant as the person who had opened a credit account and had given personal information in order to do so. Packard also presented the photographic array to Parent after he had reviewed the videotape, and Parent identified appellant, although he was not "100 percent" certain of the identification.

Packard, with the assistance of another Hedwig Village police officer, a Texas Ranger whom he had contacted for assistance in the investigation of the case, and uniformed Houston Police Department officers arrested appellant at her home after obtaining a warrant. After determining that appellant was at home, the police knocked on her door. It was ultimately answered by a man who stated that appellant had left the home and he did not know where she had gone. The police searched the home and found appellant hiding in a closet, on the floor, under a pile of clothes.

At trial, Speck identified appellant in the courtroom as Candace Sue Thierry, whom she knew as an employee of Dr. Campos. Speck stated that she had never given appellant authorization to use her information or to apply for a Mervyn's card for her. Moji also identified appellant in court as the person who had opened a credit account at Mervyn's and she detailed the transaction that she had handled with appellant. Parent testified to the workings of the store's specialized multiplex recording system. He explained how he had linked the particular transactions to particular recordings, described how he had transferred the pertinent recordings to a videotape which was given to Detective Packard, and identified Moji and appellant as being on the videotape, which was admitted into evidence.

Opening Statement

In her first and second issues, appellant argues that the trial court erred in overruling her objections to several comments by the State during its opening statement.

A. Improper argument

The first comment of which appellant complains occurred in the following fashion.

State: This is an identity theft. I'm sure many of you, when you have gone to a bank or when you call Time Warner, almost anybody you call, anybody you have an account with, you know, that the first question you always get asked are [sic], what is your name, then they want to know your social security number, and what your driver's license number is. And most of you, I'm sure, have developed already a resonance [sic] or an unwillingness to want to give out too much of that information.... Well, that was the case with a lady by the name of Sue Speck.... [S]he was diagnosed with breast cancer. And so she had to go to an oncologist ... to get treatment and chemo.... And each year when she would show up, the same people, even though some of them knew her, would ask her in the same crowded room: What is your social security number, what is your driver's license number. And this is what the evidence is going to show you.

By the way, you don't have to take my word for anything. Everything that I'm about to say here is going to be proven to you by somebody taking that witness stand and taking the oath. And I don't think you'll see that I have any reason to lie. Anyhow, they will — she will tell you that each ...

Defense Counsel: Objection, Your Honor, at that last comment; ask for an instruction to the jury to disregard about whether or not he had a reason to lie. It's not the issue before this Court, and improper opening.

Court: Well, there's a certain flexibility in opening statement. And the prosecution is making his statement of what he believes he'll be able to prove to you. And you must take that statement in that context, and not as an assertion of facts or his individual credibility or anything of that nature. Go right ahead.

(Emphasis added). No further objections or requests on this matter were made.

On appeal, appellant asserts that the contested statement were an attempt to inflame the minds of the jurors and bolster the prosecutor's personal credibility and were improper because they were not statements of what the State expected to prove at trial.

The record reflects that the trial court never ruled on appellant's objection and appellant did not press the court for a ruling nor object to the lack of a ruling. The court even gave the jury an instruction that addressed appellant's stated concern, albeit not an instruction to disregard. However, appellant did not object to the instruction given, nor did she make any further request or complaint to the court on this matter.

In order to preserve error for appeal, a complaining party must not only object, but must obtain an adverse ruling on the record or object to the trial court's refusal to rule on the objection. TEX. R.APP. P. 33.1(a); accord Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App.1996) (holding that "[b]efore a defendant will be permitted to complain on appeal about an erroneous jury argument ... he will have to show he objected and pursued his objection to an adverse ruling"); DeRusse v. State, 579 S.W.2d 224, 235 (Tex.Crim.App. 1979) (holding that "[a]n objection to argument must be pressed to the point of procuring a ruling or the objection is waived"). Appellant did not object to the trial court's response, which failed to rule on her objection, nor did she object to the trial court's failure to rule, so she may not complain now on appeal.¹ TEX.R.APP. P. 33.1(a); Cockrell, 933 S.W.2d at 89; DeRusse, 579 S.W.2d at 235. We accordingly overrule appellant's first issue.

B. Violation of motion in limine

Appellant's second issue complains generally of the State's "continually" commenting on "identification evidence which was subject to Appellant's Motion in Limine, Motion to Suppress In-Court Identification of the Defendant, and Motion to Suppress Photographic Identification," in alleged violation of the trial court's ruling on appellant's motion in limine. Appellant does not identify the particular comments or rulings complained of on appeal, but rather simply refers to certain pages of the record. Appellant also does not cite to the portion of the record containing a ruling on her motion in limine.² On the pages of the record that are cited by appellant appear (1) an unruled-on objection that "this is an issue that was addressed in a motion in limine" during a description of Steve Packard's expected testimony regarding the creation of a photo-lineup, (2) several unobjected-to references to the identification of appellant by witnesses, and (3) a protest — during a remark by the State during opening statement that witness Sybil Moji would identify appellant as the one who opened the account — that the State was "again[ ] addressing an issue[ ] that was raised in the motion in limine," followed immediately by a motion for mistrial, and an argument outside of the presence of the jury. The trial judge ultimately stated that he was "going to overrule [it]³ for the time being."

It is well settled that "mere reference to pages in the record does not sufficiently identify testimony, the objections thereto, and the court's rulings thereon to constitute a ground of error." Thomas v. State, 701 S.W.2d 653, 662 (Tex.Crim.App. 1985). Nor is an appellate court required to search through the record for support of an appellant's assertion of error. See ...