Mary Ann Leifeste Smith v. The State of Texas--Appeal from County Court of Kimble County

MEMORANDUM OPINION
No. 04-02-00155-CR
Mary Ann Leifeste SMITH,
Appellant
v.
The STATE of Texas,
Appellee
From the Kimble County Court, Kimble County, Texas
Trial Court No. 8742
Honorable Delbert R. Roberts, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: May 28, 2003

AFFIRMED

Appellant Mary Ann Smith was convicted of the offense of misdemeanor theft and sentenced to 180 days' imprisonment, probated for one year. Smith now appeals, citing three issues. First, Smith claims the evidence was legally insufficient to support her conviction. Second, Smith alleges the trial court erred in charging her with an information based on inadmissible evidence. Finally, Smith contends the trial court erred in admitting the testimony of Sheriff Mike Chapman. We overrule all of Smith's issues and affirm the judgment of the trial court.

Because the issues in this appeal involve the application of well-settled principles of law, we affirm the conviction in this memorandum opinion under Tex. R. App. P. 47.1 for the following reasons:

1. In her first issue, Smith argues the evidence presented at trial is legally insufficient to sustain her conviction. She contends the State did not prove each element of the offense, failing to prove the county in which the offense took place, the fact that a theft actually occurred, the amount of money taken if a theft did occur, and the owner as charged. We review the sufficiency of the evidence under traditional standards of review. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex. Crim. App. 2000). The standard of review is the same in both direct and circumstantial evidence cases. Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999). At trial, the State presented the testimony of truck stop restaurant employees, Linda Lively, Janet Smith, and Patricia Lexton, one of the owners of the restaurant, Linda Doyal, Junction Chief of Police Steve Brown, who was employed by the Kimble County Sheriff's office at the time of the incident in question, and Kimble County Sheriff Mike Chapman. These witnesses established that the crime took place in the city of Segovia which is in Kimble County, that money was discovered missing from the restaurant, and that the last person responsible for the money was Smith. The testimony also demonstrated that the amount taken was at least $500 and that the partial owner of the restaurant from which the money was taken was Linda Doyal. This testimony, along with other circumstantial evidence presented by the State, is legally sufficient to support Smith's conviction. We overrule her first issue.

2. In her second issue, Smith contends the information read at trial was based on inadmissible evidence. Smith claims the complaint filed against her was based solely on an inadmissible polygraph examination and was, therefore, defective. Polygraph evidence is not admissible in Texas for any purpose in a criminal proceeding. Nehery v. State, 692 S.W.2d 686, 700 (Tex. Crim. App. 1985); Easley v. State, 986 S.W.2d 264, 269 (Tex. App.--San Antonio 1998, no pet.). Although a polygraph test is not admissible for any use at trial, investigating officers may reasonably consider the test results in determining whether there is probable cause to believe the appellant has committed a theft. See Brinegar v. United States, 338 U.S. 160 (1949); Johnson v. State, 751 S.W.2d 926, 929 (Tex. App.--Houston [1st Dist.] 1988, pet. ref'd).

In the present case, the State did not introduce evidence of Smith's polygraph exam at trial. Instead, the test results served as only one factor used to determine whether there was probable cause to arrest and charge Smith. Therefore, we overrule Smith's second issue.

3. In her third issue, Smith argues the trial court erred in admitting the testimony of Sheriff Mike Chapman because the testimony was hearsay. Tex. R. Ev. 801(d), 802. Although hearsay is normally inadmissible, there are several exceptions to the rule. Tex. R. Ev. 803. Texas Rule of Evidence 803(24) states that a hearsay statement "which at the time of its making. . . tended to subject the declarant to . . .criminal liability" is admissible. In criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. Tex. R. Ev. 803(24); Bingham v. State, 987 S.W.2d 54, 57 (Tex. Crim. App. 1999); Esparza v. State, 31 S.W.3d 338, 341 (Tex. App.--San Antonio 2000, no pet.).

At trial, Sheriff Chapman testified that he received a phone call from Smith in which they discussed the theft in question. Sheriff Chapman further testified, over Smith's objection, that she said "I did it" while on the phone with him. Although Sheriff Chapman's testimony would normally be excluded under the hearsay rule, here, it falls under the statement against interest exception and is corroborated by other evidence, making the statement admissible. Tex. R. Ev. 803(24). We overrule Smith's third issue.

The judgment of the trial court is affirmed.

Paul W. Green, Justice

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