Jose Angel Perez v. The State of Texas--Appeal from County Court at Law No 5 of Bexar County

MEMORANDUM OPINION
No. 04-05-00818-CR
Jose Angel PEREZ,
Appellant
v.
The STATE of TEXAS,
Appellee
From the County Court at Law No. 5, Bexar County, Texas
Trial Court No. 872977
Honorable Timothy F. Johnson, Judge Presiding

Opinion by: Rebecca Simmons, Justice

 

Sitting: Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

 

Delivered and Filed: February 28, 2007

 

AFFIRMED

 

Appellant Jose Angel Perez was convicted by a jury for theft of property, over $500 but less than $1,500. Perez complains the trial court erred when it failed to include a theft by aggregation instruction in the jury charge and when it overruled Perez's objection to the interjection of the prosecutor's personal opinions during the State's closing argument. Because we fail to find reversible error, we affirm the judgment of the trial court.

Background

Dorothy Brown, an auditor for Wal-Mart, noticed suspicious activity, specifically the underringing of purchased items, on the electronic journals of cashier Jessica Jo Perez, appellant's daughter, during December 2003. The most common means of underringing involve either scanning an item and then voiding out the transaction so that it does not show on the total transaction, or selecting price inquiry and then scanning the item without charging for the item. The Wal-Mart loss prevention department monitors when either of these activities appears too frequently. Once notified of the December irregularities, the loss prevention employees obtained the security videos for a thirty-day period showing, on at least two occasions, Jessica placing unpaid items in the shopping bags of Appellant Jose Perez and his wife Rebecca Perez, as if they were properly charged on the cash register. Thereafter, Wal-Mart began surveillance of Jessica Jo Perez's register.

On January 3, 2004, the loss prevention department was continuing to conduct surveillance on Jessica's register when Perez and his wife proceeded through Jessica's check out line. After the "sale" was complete, Perez remained in the check out line and paid Jessica, while his wife left Wal-Mart with multiple items in the shopping cart for which they never paid.

Perez and his wife were stopped and taken into the loss prevention offices. Perez initially refused to identify himself and denied Rebecca was his wife or that Jessica was his daughter. After realizing the authorities had been called, Perez explained that he worked for the Bexar County Sheriff's office and that he could lose his job. At this point, his wife came forward and took responsibility for the theft. Shortly thereafter, Jessica was called into the loss prevention offices and also admitted culpability. Perez, however, denied knowledge of the thefts throughout trial.

Perez was charged by information with the offense of theft of property, over $500 but less than $1,500, pursuant to a scheme or continuing course of conduct. The jury found Perez guilty and the trial court subsequently sentenced Perez to ninety days confinement in the county jail, suspended and probated for a term of six months. We affirm the judgment of the trial court.

Instruction on Aggregation of Theft

Perez contends, in his second issue, that the trial court erred by failing to give a value of aggregation instruction in the charge. When a defendant is charged with committing multiple thefts over a period of time, the State may choose to aggregate the thefts pursuant to Section 31.09 of the Penal Code, which provides:

When amounts are obtained in violation of this chapter pursuant to one scheme or continuing course of conduct, whether from the same or several sources, the conduct may be considered as one offense and the amounts aggregated in determining the grade of the offense.

 

Tex. Penal Code Ann. 31.09 (Vernon 2003). If the State chooses to indict a defendant based on Section 31.09, the indictment must include language to the effect that the State is aggregating the amounts pursuant to a continuing scheme or course of conduct. See Thomason v. State, 892 S.W.2d 8, 11 (Tex. Crim. App. 1994). This language is considered an element of the offense. Id. Although the indictment included the required language, the court's jury charge did not contain the phrase "one scheme or continuing course of conduct."

1. "Continuing Scheme or Course of Conduct" is an Element of the Offense

 

When the State desires to aggregate offenses under the "continuing scheme or course of conduct" for jurisdictional and punishment purposes, the prosecution bears the burden to allege and prove not only each separate offense, but also the scheme or continuing course of conduct. Id. Only when the evidence establishes the conduct was pursuant to one scheme or course of conduct may "the conduct . . . be considered as one offense and the amounts aggregated in determining the grade of offense." Turner v. State, 636 S.W.2d 189, 196 (Tex. Crim. App. 1982). Accordingly, Perez was entitled to have the jury charged on this element. Kellar v. State, 108 S.W.3d 311, 313 (Tex. Crim. App. 2003); Gant v. State, 606 S.W.2d 867, 871-72 (Tex. Crim. App. 1980).

2. The Jury Charge

The court's charge submitted to the jury provides as follows:

Now if you find from the evidence beyond a reasonable doubt that on or about the 24th day of December, A.D., 2003, through on or about the 3rd day of January, A.D., 2004 in Bexar County, Texas, the defendant, Jose Perez, did then and there unlawfully appropriate, by intentionally or knowingly acquiring or otherwise exercising control over, property, to wit: (38) food items, (3) clothing items, (11) entertainment items, (3) kitchen items, (5) medical products, (11) personal hygiene items, (15) household items, of the value of $500 or more, but less then [sic] $1,500, from Wal-Mart and/or Mario Espinosa, the owner thereof, by exercising control over said items, with intent to deprive the owner of said property, and that the defendant, Jose Perez, did then and there, with intent to promote or assist the commission of said theft by participating in underringing activity with Rebecca Perez and/or Jessica Jo Perez.

 

Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will find the defendant not guilty.

 

Noticeably absent from the charge is language concerning "one scheme or continuing course of conduct." Tex. Penal Code Ann. 31.09 (Vernon 2003). Without authority to justify an exception, the State asserts that the language "by participating in underringing activity" is the "scheme or continuing course of conduct" and thus satisfies Section 31.09. (1) We disagree. The State admittedly relied on Section 31.09 to support the amount charged in the indictment. Id. The trial court, therefore, erred in not including the specific language in the charge as required by Section 31.09. See also Gant v. State, 606 S.W.2d 867, 871-72 (Tex. Crim. App. 1980). However, because Perez never objected to the trial court's failure to include the specific language, we must determine whether harm resulted.

3. Almanza Analysis

A defendant is generally required to object to the jury charge to preserve his complaint for appellate review. Vaughn v. State, 888 S.W.2d 62, 69 (Tex. App.--Houston [1st Dist.] 1994), aff'd, 931 S.W.2d 564 (Tex. Crim. App. 1996). Absent an objection, Perez was required to show that the harm caused by the charge deprived him of a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). Furthermore, because Perez raises this for the first time on appeal, we will reverse only upon a finding of egregious harm. Id.; Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986).

Egregious harm errors are those affecting the very basis of the case, depriving the defendant of a valuable right, or vitally affecting a defensive theory. Almanza, 686 S.W.2d at 172. An appellate court reviews whether egregious harm occurred by reviewing the error "in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel, and any other relevant information revealed by the record of the trial court as a whole." Skinner v. State, 956 S.W.2d 532, 544 (Tex. Crim. App. 1997).

Although not properly charged, the record suggests that both the State and the defense interpreted the language in question "by participating in underringing activity," as a charge on aggregation. As evidence of such, defense counsel elected not to seek a lesser included offense in the charge explaining to the trial court that it was an "all or nothing" with regard to the items stolen. Either Perez was involved in all of the thefts or he was not involved in any of the thefts. The idea of a scheme was also transmitted to the jury during closing argument, when defense counsel argued that Perez had no reason to be part of "the scheme" and that:

In order to say that Joe Perez is guilty as charged, when you read this [charge], you're going to have to believe that he wasn't just there on the 3rd of January, 2004. You have to believe that he was there on the 31st of December, 2003, and that he was there on the 24th of December, 2003, and you have to believe that each time he was there he conspired to defraud and steal from Wal-Mart.

By his statements to the jury, even Perez's trial counsel interpreted the jury charge as an aggregation charge.

The jury charge, when taken as a whole, required the jury to find the property was taken pursuant to a common scheme or plan, that being the underringing. The evidence supports the State's argument that Perez went to Wal-Mart on several different occasions and participated in a scheme with his wife and daughter to underring the purchased items. The electronic journals alerted the loss prevention specialists who, in turn, undertook an investigation including both video and personal surveillance. Both Jessica and Rebecca admitted their culpability and actions. The jury, as sole judge of credibility, was free to believe or disbelieve any or all of the testimony. Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000). Based on the physical evidence and the testimony presented at trial, the evidence is clearly sufficient for the jury to find that Perez was a party to the ongoing theft.

Furthermore, the indictment and the charge required the items total more than $500 and less than $1,500 for the jury to find Perez guilty. This limitation precluded the possibility that the jury convicted Perez of just one or more thefts in which the total amount involved was less than $500. See Lehman v. State, 727 S.W.2d 656, 659 (Tex. App.--Houston [1st Dist.] 1987), aff'd, 792 S.W.2d 82 (Tex. Crim. App. 1990). Perez failed to show egregious harm resulted from the jury charge as provided to the jury. Thus, although the trial court's charge did not include the language required by Section 31.09, Perez failed to show that he was deprived of a fair and impartial trial. See Gant, 606 S.W.2d at 872. We, therefore, overrule Perez's issue on appeal.

Closing Argument

Perez next argues the prosecutor improperly implied that she possessed a special expertise with regard to the offense charged. Specifically, Perez complains about the following statements made by the State during closing argument:

. . . that when he [appellant] worked in white collar he knows that we don't bring a case unless we know what we have got. I wouldn't ask you to find it beyond a reasonable doubt if I hadn't already done it in my own mind. And so to say that we would be giving this to you because this is a process is not true. We wouldn't be doing our job and you wouldn't be proud of us if the . . .

 

Defense counsel objected and the trial court instructed the prosecutor to limit her argument to the law and facts. When the prosecutor made another similar comment, defense counsel objected again, to which the trial court stated, "You have a running objection. I sustained it the last time. Let's move on." Perez argues the prosecutor made similar comments on at least four more occasions.

In order to preserve jury argument error for appellate review, a defendant must make a timely objection, request an instruction to disregard and move for a mistrial. Tex. R. App. P. 33.1(a)(1); Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993). An objection alone is not sufficient. A defendant must pursue his complaint to an adverse ruling. Nethery v. State, 692 S.W.2d 686, 701 (Tex. Crim. App. 1985).

In the present case, Perez claims that he asked for a running objection. Regardless of whether the court granted the running objection, Perez was required to have his objection ruled on by the trial court to preserve error. Here, however, the trial court sustained the objection and instructed the prosecutor to move on and to limit her argument to the law and the facts. See Campos v. State, 946 S.W.2d 414, 417 (Tex. App.--Houston [14th Dist.] 1997, no pet.) (without an adverse ruling, a defendant must request and be denied a mistrial to avoid forfeiture of right of appeal). Assuming the trial court's statement amounted to ruling against Perez, defense counsel never requested an instruction to disregard and did not request a mistrial. Moreover, an instruction by the trial court to disregard would have been sufficient to cure the error. See Dinkins v. State, 894 S.W.2d 300, 357 (Tex. Crim. App. 1995). Thus, Perez waived any argument with regard to the prosecutor's statements.

Conclusion

Defense counsel did not object to the trial court's failure to include an instruction on theft by aggregation and further failed to show egregious harm by the lack of such instruction. Additionally, Perez failed to preserve any error by requesting a mistrial or limiting instruction with regard to the alleged error made in the State's closing argument. We therefore affirm the judgment of the trial court.

Rebecca Simmons, Justice

 

Do Not Publish

1. The State argues had the jury not believed that this continuous activity occurred they would not have believed that the amount of the theft was more than $500 or less than $1,500.