Croil, Kim A. v. The State of Texas--Appeal from County Court at Law No 2 of Fort Bend County

Affirmed and Memorandum Opinion filed September 4, 2003

Affirmed and Memorandum Opinion filed September 4, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00568-CR

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KIM A. CROIL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law Number Two

Fort Bend  County, Texas

Trial Court Cause No. 95494

M E M O R A N D U M O P I N I O N

A jury found appellant guilty of misdemeanor criminal trespass, and the trial court assessed punishment at one-hundred-eighty days=confinement, probated for twelve months. Appellant now argues that (1) the State provided legally insufficient evidence for her conviction, and (2) the trial court failed to grant a mistrial. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant visited a Target store to return two items that she previously purchased with a Visa gift card. When appellant returned the items, the supervisor informed her that she would not obtain an immediate credit on her cardCinstead, the credit would take Aseven to ten days@ to process. Appellant appeared to accept this resolution, and appellant and her daughter continued shopping. Minutes before the store was about to close, appellant attempted to make new purchases using the same Visa gift card. Due to difficulties, the cashier summoned the supervisor. He again informed appellant she could not use that particular card, and the credit would take seven to ten days before it appeared on her card. She became irrate and began phoning various customer service departments. The store manager informed appellant the store was closing, and he would attempt to assist her on another day, or she would need to make her purchases using another form of payment. Appellant warned the manager she would not leave until the manager rectified the situation. Other employees approached appellant and asked her to leave, but again she refused. The store manager called the police. The police arrived shortly, repeatedly asked her to leave, and eventually escorted her out of the store.

While outside the store, the officers questioned appellant and her daughter. Unbeknownst to anyone but Officer Gamble, a camera and microphone attached to his patrol car recorded the discussion between appellant and the officers. Before trial, appellant=s attorney requested all audio and video electronic recordings made at or near the time of the arrest. Because Officer Gamble had taken the tapes to the police department=s professional standard division shortly after appellant=s arrest, the tapes were not turned over by the State.[1] At trial, the officer alluded to the tapes and appellant objected. The trial court recessed so that Officer Gamble could retrieve the tapes. He did, and appellant admitted the tapes in evidence.

DISCUSSION

Appellant raises two issues on appeal. First, appellant contends the State did not provide legally sufficient evidence for a conviction. Second, appellant argues the trial court failed to grant a mistrial.

I. Legal Sufficiency

In reviewing the legal sufficiency of the evidence to support a conviction, we view the evidence in the light most favorable to the judgment. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Narvaiz v. State, 840 S.W.2d 415, 423 (Tex. Crim. App. 1992). The critical inquiry is whether, after viewing the evidence, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Emery v. State, 881 S.W.2d 702, 705 (Tex. Crim. App. 1994). AThe jury is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony.@ Jackson v. State, 3 S.W.3d 58, 60 (Tex. App.CDallas 1999, no pet.).

A person commits the offense of criminal trespass if (1) he remained on another=s property without effective consent, and (2) he received notice to depart but failed to do so. Tex. Pen. Code Ann. ' 30.05(a). Notice includes oral or written communication by the property owner or a person with apparent authority to act for the owner. Tex. Pen. Code Ann. ' 30.05(b)(2)(a). Here, a supervisor testified the store closed at midnight. He repeatedly informed appellant she must leave the store, and she continually refused. The store manager testified appellant did not have consent to remain on the property, and the evidence established the store manager asked appellant to leave several times. Officer Gamble testified that he asked appellant to leave the store Athree or four@times, but appellant refused. Appellant remained in the store without consent after repeated notice to depart. Sufficient evidence existed for a jury to conclude appellant committed criminal trespass. We overrule appellant=s first issue.

II. Mistrial

Next, appellant argues the trial court erred by not granting a mistrial. She claims a mistrial should have been granted because the State failed to produce an audio/videotape of appellant and one of the police officers. However, as we explain below, appellant has waived the right to complain of this.

At trial, while one of the police officers arresting appellant testified, it became apparent that an additional VHS tape with audio existed. Neither the prosecutor nor the defense lawyer knew about the tape. After defense counsel learned of the tape, he moved for a mistrial and asked that the officer=s testimony be stricken. The trial court responded, AI=m going to deny that mistrial at this time.@ When defense counsel asked about the officer=s testimony, the court replied, AI=m not ready to make a ruling on that. I=m going to find out where the tape is.@

The court did, after contacting some number of police officers, locate the tape. It was in the possession of an officer in the internal affairs division, and had been since the incident. When the tape was found, appellant, the court, and the lawyers watched the video and listened to the audio; the record is unclear on this, but it appears that the audio and video were separate.

After hearing the tape, the lawyersCincluding defense counselCdiscussed deleting a portion of the tape in which one of the police officers mentioned filing assault and other charges against appellant. Clearly, they were preparing the tape to be introduced to the jury. After hearing the audio and seeing the video, defense counsel did not re-urge his motion for mistrial.

When court resumed the following morning, the court asked both parties if they had enough time to review the tapes.

THE COURT: Folks, the video and the audio tape that was provided to us by Sergeant ... Faucett yesterday afternoon has been viewed by the Court, and I will ask has the State now had ample time to view ... and hear both the audio and the videotape that was provided to us by Sergeant Faucett [?]

[PROSECUTOR]: Yes, sir.

THE COURT: Has the Defendant?

[DEFENSE

COUNSEL]: Yes, your Honor.

THE COURT: Okay. We=re at the stage right now, I believe, where Mr. Gamble is on the witness stand. I believe we were into your cross-examination, Mr. Norris, and you had just asked something that led to the discovery of the cassette and the tape and we took up yesterday afternoon to get hold of the tape and the video and we now have it in our possession. We have all viewed it. All right. I=m ready to bring the jury in as soon as Ed tells me they=re here.

[PROSECUTOR]: Actually, I would make an oral motion in limine to refrain opposing counsel from making any statements, remarks, or anything to do about these tapes that we just now have or any matters, remarks, or statements concerning pretrial motions or discovery or anything of that nature, Judge.

THE COURT: You understand that motion?

[DEFENSE]: Yes, your Honor.

THE COURT: This does not preclude you at this point from introducing the tape, either the audio or video, does not preclude you from asking questions about the tape of this witness or any other witness; just not mention that it was not brought forth pursuant to your motion for production is basically what the motion in limine is.

[PROSECUTOR]: Right, Judge, I just don=t want the juryCto inflame the jury or prejudice the jury that the State is hiding evidence or we didn=t give this to him.

THE COURT: You understand where he is coming from, [defense attorney]?

[DEFENSE]: Yes, your Honor.

THE COURT: You can reply.

[DEFENSE]: I believe that=s proper for me not to mention, you know, to intimate something about discovery orders not being followed. I will approach the Bench on that.

THE COURT: That=s fair enough, but what I=m doing is I=m going to give you wide latitude nowCyou better listen to meC

[DEFENSE]: Yes, your Honor.

THE COURT: Cinstead of listening to your client at this stage. You can talk to her later. I=m going to give you wide latitude, as I just said awhile ago in asking questions about the tape of any of the witnesses that either you produce or the State produces or on cross-examination. At this stage of the game and of the trial, I have not ruled on whether or not the tape is admissible, but I will if it=s ever offered. And at this point, it has not been offered; and if it is offered I want that done in front of the jury. Okay?

[DEFENSE]: Yes, your Honor.

. . .

[DEFENSE]: The Defendant is ready.

THE COURT: All right, Officer Gamble, you are still on the witness stand and you are still under oath. [Defense Attorney] you may continue your cross examination.

[DEFENSE Q.]: Officer Gamble, then you did make a tape recording of the incident that was recorded on your video camera with the audio portion, right?

A. That=s correct.

Q. And we did have a chance yesterday to review that, right, so that you know that it=s here in the courtroom, that videotape?

A. I would assume it is, yes, sir.

(Marked as Defendant=s Exhibit No. 1.)

Q. Officer Gamble, is that your videotape?

A. Yes, it is.

[DEFENSE]: At this time we would like toCI don=t know if it=s rewound or not.

THE COURT: You are offering Defendant=s Exhibit No. 17[?]

[DEFENSE]: Yes, your Honor.

THE COURT: Any objection?

[PROSECUTOR]: No objection.

THE COURT: Defendant=s 1 will be admitted.

(Defendant=s Exhibit No. 1 admitted.)

[DEFENSE]: May we publish this to the jury right now?

THE COURT: Yes, you may.

This part of the record reveals four things. First, the trial court initially denied the request for mistrial but made it clear that he might reconsider later. Second, defense counsel agreed that the State did not purposefully hide the tape and also agreed not to make the jury believe the State had improperly refused to produce the tape. Third, defense counselCnot the StateCintroduced the audio and video tapes into evidence. Fourth, although defense counsel also asked the court to exclude the officer=s testimony, he continued cross-examining the officer, using him to explain what happened on the video. On this record, having agreed, without reservation, to move forward with trial, and having introduced the evidence himself and having agreed that the prosecutor did not act improperly, defense counsel clearly abandoned his motion for mistrial and waived any right to object on appeal. We overrule the second issue.

Having overruled both of appellant=s issues, we affirm the judgment of the trial court.

/s/ Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed September 4, 2003.

Panel consists of Chief Justice Brister and Justices Fowler and Edelman.

Do Not Publish CTex. R. App. P. 47.2(b).

[1] Apparently, appellant made a complaint against one of the officers during the arrest. These two tapes were used in reviewing the officer=s actions by the police department.