Pena, Ernesto v. The State of Texas--Appeal from 238th District Court of Midland County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

ERNESTO PENA, )

) No. 08-01-00302-CR

Appellant, )

) Appeal from the

v. )

) 238th District Court

THE STATE OF TEXAS, )

) of Midland County, Texas

Appellee. )

) (TC# CR-26,263)

)

O P I N I O N

Appellant Ernesto Pena appeals his conviction for the state felony offense of theft, punishable as a habitual offender. After finding Appellant guilty, the jury assessed punishment at 50 years= imprisonment in the Institutional Division of the Texas Department of Criminal Justice. On appeal, Appellant challenges the factual sufficiency of the evidence to support his conviction. We affirm.

FACTUAL SUMMARY

In the State=s case-in-chief, Richard Bret Baze testified that on June 19, 2000, he was employed by Wal-Mart in the store=s loss prevention department. Mr. Baze has worked as a loss prevention officer at the Wal-Mart in Midland County for the past seven years. Mr. Baze=s duties include investigating customer shoplifting and internal thefts. Mr. Baze has received specialized training and on-the-job training in the area of loss prevention at Wal-Mart. Mr. Baze stated that he has apprehended over a thousand shoplifters in Wal-Mart. In performing his surveillance duties, Mr. Baze walks around the sales floor and observes customer behavior in the store, dressed like an ordinary customer.

Mr. Baze testified that on June 19, 2000, he apprehended Appellant and Beatrice Vera for shoplifting a pressure washer. According to Mr. Baze, he was walking around the store at that particular time and noticed two Hispanic females, later identified as Beatrice Vera and her fifteen-year old daughter, in the automotive department in the aisle where pressure washer and air compressor merchandise is displayed. Mr. Baze observed Ms. Vera and her daughter pick up a pressure washer and place it into their basket. They then proceeded to the front of the store and paid for the item at register 31. As Ms. Vera and her daughter went towards the exit door, Mr. Baze approached the cashier and as he passed by, asked the cashier how they had paid for the item and she told him that they had paid in cash. Mr. Baze followed them as they exited the store and watched them from the sidewalk outside the store. Once they were outside the store, Mr. Baze saw Appellant step out of the vehicle Ms. Vera and her daughter were heading towards and start walking towards the store. Mr. Baze observed Ms. Vera hand Appellant the purchase receipt for the pressure washer as they passed each other. Mr. Baze described their actions as a constant motion, occurring without any conversation between Appellant and Ms. Vera. Mr. Baze knew that Ms. Vera had handed Appellant the receipt for the pressure washer because after Ms. Vera made the purchase she received her change and the receipt. Ms. Vera handed the change to her daughter and the only piece of paper in her hand was the receipt, which appeared to be what Ms. Vera handed to Appellant. After seeing this transaction, Mr. Baze decided to follow Appellant when Appellant entered the Wal-Mart alone.

Once Appellant was inside the store, Mr. Baze followed him and observed Appellant putting the receipt in his shirt pocket. Appellant then selected a basket and proceeded straight to the pressure washer aisle in the automotive department. Mr. Baze observed Appellant take the receipt out of his pocket, look at it, put the receipt back in his pocket, and then look down at the pressure washers and air compressors along the bottom shelf of the aisle. Appellant grabbed one of the pressure washers and placed it into the basket. To Mr. Baze, it looked like Appellant was trying to match the receipt to the merchandise, but Appellant actually grabbed a different pressure washer. Appellant then proceeded toward the front of the store. Appellant walked by the registers towards the bathroom, which is located in the center part of the front of the store. Mr. Baze then observed Appellant pass between a couple of closed registers and enter the men=s bathroom, leaving the basket outside the bathroom. After a couple of minutes, Appellant came out of the bathroom, grabbed the basket, and exited the store. When Appellant was apprehended, he was on the sidewalk outside the store building with the pressure washer in his basket. Appellant was escorted back into the store to the back office.

When they arrived at the office, Appellant told Mr. Baze that he had the receipt for the merchandise in the basket and handed it to Mr. Baze. Mr. Baze noticed that the item on the receipt did not match the item in the basket in price or model. Mr. Baze then asked Joe Rael, an assistant manager, to stay with Appellant while he met with Jim Haley, who Mr. Baze had pulled aside for backup assistance while following Appellant in the store. Mr. Haley informed him that the vehicle was still in the store parking lot. Mr. Baze went out to the vehicle and asked the ladies to exit their vehicle. He estimated that they had been waiting about ten minutes since they had given the receipt to Appellant.

The State also introduced into evidence Ms. Beatrice Vera=s testimony. Ms. Vera testified that she pled nolo contendere and was convicted of theft for this incident at Wal-Mart. Ms. Vera admitted to going to Wal-Mart with her daughter and Appellant that day and purchasing a pressure washer with cash, however, she denied handing the receipt to Appellant. According to Ms. Vera, the three entered Wal-Mart together and then Appellant went his way and she and her daughter went the other way. Ms. Vera and her daughter went looking for the pressure washers. Ms. Vera testified that the pressure washer was to be a gift for her father for Father=s Day because he is in the car washing business. Ms. Vera=s daughter was carrying Ms. Vera=s money and handed it to her to pay for the pressure washer. After paying for the item, she and her daughter walked out of the store. Ms. Vera did not have any pockets in the shorts she was wearing so she handed the receipt and her change to her daughter. Ms. Vera put the pressure washer in the back seat of the car and waited outside for Appellant to come out of the store. She sat waiting for about ten minutes and then sent her daughter to go inside the store for Appellant. Ms. Vera recalled that after her daughter had been gone for about ten minutes, people came and got her out of the car and told her to step back inside the store. She was subsequently arrested for theft and taken to the county jail. Ms. Vera has known Appellant for seventeen years and has three children with him.

Ms. Vera=s daughter offered similar testimony at Appellant=s trial, except she recalled that her mother was holding the money in her bra while they were inside the store. Ms. Vera=s daughter testified that she saw her mother take the money out of her bra at the register and that afterwards her mother gave her the change and receipt as they walked out of the store. Then she and her mother went to their car and waited for Appellant for about five or ten minutes. Later, she went into the store to look for him, found him, and handed him the receipt without telling him anything. The daughter then walked out of the store. The daughter testified that she gave Appellant the receipt because she has a lot of anger towards him for not letting her do what she wants to do to stay happy and she was thinking that she would do something to embarrass him in some way.

At trial, Appellant testified on his own behalf. Appellant was thirty-six years old and was working in oil fields as a sandblaster. Appellant stated that on June 19, 2000, he, his wife, and daughter went to Wal-Mart to buy a gift for his father-in-law. They went into the store together and Appellant went off on his own in the store. Appellant was looking around at everything, browsing the stereo equipment and such, for about thirty or forty minutes. Appellant then headed back towards the front of the store. He walked through every aisle and noticed the pressure washers. Appellant found the cheapest one and then walked to the front of the store and picked up a basket. Appellant then returned to the pressure washers and put his selection inside the basket. Appellant started wandering around the store for about ten minutes, trying to see if he could run into his wife and daughter.

Around the men=s clothes department, Appellant saw his daughter coming towards him. Appellant recalled his daughter telling him that her mother was outside hot and frustrated, waiting for them to leave. Appellant testified that his daughter told him Awe already paid for this@ and gave him a receipt. Appellant saw that the receipt said pressure washer on it. Appellant told his daughter that he would be out in a minute and put the receipt in his pocket. Appellant continued to browse, taking his time because he was not in any hurry. Appellant wandered around the store and then decided to go to the restroom to freshen up because they were not going to go straight home. After using the restroom, Appellant got his basket and started to walk towards the front of the store. Appellant explained that because of his lack of education, he did not think to ask or explain to the clerk about his wife and daughter already paying for the pressure washer in his basket. When Appellant walked out the front doors, Mr. Baze stopped him and told him to come back inside the store and talk about what he had in the basket. Once back inside the store, Appellant denied stealing the pressure washer and told Mr. Baze he had a receipt for it.

On cross-examination, Appellant was questioned about his criminal history record. Appellant admitted that he had been convicted for theft in 1990 and 1991. Appellant also admitted to three additional felonies. In 1994, Appellant was convicted of aggravated assault with a deadly weapon finding for which he served four years imprisonment. In 1989, Appellant was convicted of burglary of a vehicle for which he served one year and eight months imprisonment. In 1985, Appellant was convicted of felony criminal mischief for which he served about one year imprisonment after probation was withdrawn in 1985. At the close of the guilt/innocence stage of Appellant=s trial, the jury found him guilty of theft by repetition, which is theft enhanced to a state jail felony. Appellant pled true to his prior convictions for at least two felonies. The jury assessed his sentence at fifty years= confinement. Appellant now timely appeals.

DISCUSSION

In his sole issue, Appellant contends that the evidence was factually insufficient to sustain his conviction for the offense of theft by repetition. Specifically, Appellant argues that the conviction is against the weight of the evidence such that it is clearly wrong and unjust.

Standard of Review

A factual sufficiency review of the evidence begins with the presumption that the evidence was legally sufficient to support the trial court=s judgment.[1] See Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App. 1996). In reviewing a factual sufficiency of the evidence challenge, we consider all of the evidence in a neutral light. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis, 922 S.W.2d at 129. The evidence is not factually sufficient if it is so weak that it would be clearly wrong and manifestly unjust to allow the verdict to stand, or the adverse finding is against the great weight and preponderance of the available evidence. Johnson, 23 S.W.3d at 11. We review the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it with the evidence that tends to disprove that fact. Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996), cert. denied, 522 U.S. 832, 118 S. Ct. 100, 139 L. Ed. 2d 54 (1997). Our review must employ appropriate deference and should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any evidence presented at trial. See Johnson, 23 S.W.3d at 7; Clewis, 922 S.W.2d at 134. A decision is not manifestly unjust merely because the jury resolved conflicts in the evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App. 1997).

In challenging the factual sufficiency of the evidence, Appellant argues that there was conflicting testimony at trial. Appellant points out that the State=s witness, Mr. Baze, testified that Appellant was not in the store when Ms. Vera and her daughter exited the store. However, Appellant, Ms. Vera, and their daughter testified that they entered the store together. Further, there was evidence introduced as to Appellant=s confusion and misunderstanding concerning the receipt, which showed that Appellant thought Ms. Vera had already paid for the pressure washer in his basket.

The participants in the alleged theft did offer testimony that conflicted with Mr. Baze=s account of the incident. The jury as fact finder and sole judge of witness credibility, however, was free to resolve the conflicting testimony in favor of the State. See Cain, 958 S.W.2d at 410. We have examined all the evidence impartially, and giving due deference to the jury=s verdict, we find that the proof of guilt is not so obviously weak as to undermine confidence in the jury=s determination. See Jones, 944 S.W.2d at 648-49. Further, the great weight and preponderance of the evidence is not contrary to the jury=s verdict. While Appellant testified as to his misunderstanding, this evidence did not outweigh other evidence adduced at trial regarding his intent. Accordingly, we find that the evidence is factually sufficient to support the conviction. Issue One is overruled.

For the reasons stated above, we affirm the trial court=s judgment.

April 24, 2003

DAVID WELLINGTON CHEW, Justice

Before Panel No. 3

Barajas, C.J., Larsen, and Chew, JJ.

(Do Not Publish)

[1] Here, Appellant was indicted for theft by repetition, which is, theft enhanced to a third degree state jail felony. A person commits theft Aif he unlawfully appropriates property with intent to deprive the owner of property.@ Tex.Pen.CodeAnn. ' 31.03(a)(Vernon 2003). AA person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.@ Tex.Pen.CodeAnn. ' 6.03(a)(Vernon 2003). Intent can be inferred from the accused=s acts, words, or conduct. Dues v. State, 634 S.W.2d 304, 305 (Tex.Crim.App. 1982). Theft is punishable as a state jail felony if the value of the property is less than $1,500 and the person has been previously convicted two or more times of any grade of theft. Tex.Pen.Code Ann. ' 31.03(e)(4)(D). The prior convictions constitute elements of the offense, rather than enhancement allegations. See Henry v. State, 948 S.W.2d 338, 341 (Tex.App.--Dallas 1997, no pet.). Appellant=s offense was an aggravated state jail felony punishable under Section 12.35(c), not Section 12.35(a), because he pled true to an enhancement paragraph for aggravated assault. He also pled true to enhancement paragraphs for two earlier felony convictions. Thus, his punishment range was increased to the range applicable to an habitual offender under Section 12.42(d). See Tex.Pen.Code Ann. '' 12.35(c)(2)(B), 12.42(d). We observe that on appeal, Appellant does not challenge the severity of the sentence imposed.