Annette Martinez Gomez v. The State of Texas--Appeal from 144th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-06-00202-CR
Annette Martinez GOMEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 2005-CR-5471
Honorable Mark R. Luitjen, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

 

Sitting: Catherine Stone, Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

 

Delivered and Filed: July 18, 2007

 

AFFIRMED

Annette Gomez appeals her theft conviction for taking $1,500 from her employer while she worked as a cashier. In two issues, Gomez asserts the evidence was neither legally nor factually sufficient to support her conviction. Because the record contains both legally and factually sufficient evidence for the jury to find beyond a reasonable doubt that Gomez stole the money, we affirm the trial court's judgment.

Standard of Review

In reviewing legal sufficiency, we determine whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). We do not require that each fact directly and independently show the defendant's guilt; however, considered as a whole, the evidence must support each element of the crime. Hooper, 214 S.W.3d at 13. Further, circumstantial evidence may alone be sufficient to establish guilt. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004).

In analyzing factual sufficiency, we conduct a neutral review of all the evidence and determine whether, although legally sufficient, (1) the evidence is "so weak" that the verdict is "clearly wrong and manifestly unjust," or (2) the verdict is against "the great weight and preponderance of the evidence." Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006) (quoting Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). In reviewing the evidence for factual sufficiency, we may disagree with the fact finder, but we may not merely substitute our judgment for that of the fact finder. See Johnson, 23 S.W.3d at 7 (observing that appellate courts should exercise "appropriate deference," but not "absolute deference," to the fact finder's determinations, particularly those based on an evaluation of the weight and credibility of a witness's testimony).

Discussion

On appeal, Gomez first asserts the evidence was not legally sufficient to support her theft conviction because the State failed to prove that any money had in fact been stolen, and Gomez's extrajudicial confession could not be used to establish the corpus delicti of the offense of theft - that the "missing" money was stolen. Second, Gomez asserts the evidence was not factually sufficient because the surveillance video recording showing Gomez at her cashier station contradicts her confession, and therefore her conviction is clearly wrong and manifestly unjust. We address each issue in turn.

We begin by evaluating the record to determine whether there was sufficient evidence to prove a theft occurred. In Texas, a person commits the offense of theft if, "without the owner's effective consent," she "appropriates property with intent to deprive the owner of [the] property." Tex. Pen. Code Ann. 31.03(a), (b)(1) (Vernon Supp. 2006); Ex Parte Luna, 784 S.W.2d 369, 371 (Tex. Crim. App. 1990). The State must prove that a taking of the property occurred, i.e., the corpus delecti of a theft offense, before an extrajudicial confession may be used to prove the defendant's commission of the offense. Rocha v. State, 16 S.W.3d 1, 4 (Tex. Crim. App. 2000); Williams v. State, 958 S.W.2d 186, 190 (Tex. Crim. App. 1997) (under the corpus delecti rule, an extrajudicial confession, standing alone, is not enough to support a conviction; other evidence must exist showing a crime has in fact been committed). The State may prove the corpus delicti by showing that "some evidence exists outside of the extra-judicial confession which, considered alone or in connection with the confession, shows that the crime actually occurred." Salazar v. State, 86 S.W.3d 640, 645 (Tex. Crim. App. 2002). The other evidence must render the commission of the offense more probable, but does not have to be sufficient by itself to prove the offense. Williams, 958 S.W.2d at 190.

Gomez argues that, other than her extrajudicial confession, there was no evidence that any money was stolen from the store, specifically from the tube transfer system (1) used to transfer money from the cash registers to the bookkeeping department within the store. At trial, Shelly Smith, the Home Depot store manager, testified that $1,500 was missing from the off-going cashier's till; her investigation showed that Gomez, who was the on-coming cashier, took the money during the shift change; and Gomez did not have permission to take the money. The head cashier, Cindy Zaragoza, also testified that the off-going cashier's till was missing $1,500. Zaragoza stated that the off-going cashier gave her three "strips" of $500 each which she verified by counting the money, sealing the three strips in a white envelope, and signing the back of the envelope. Zaragoza further testified that she placed the envelope inside the transparent canister, placed the canister into the tube system portal, and told the off-going cashier to send the canister to the bookkeeping office. The off-going cashier, Angela Garza, testified that she did not send the canister to bookkeeping because she thought the head cashier had already sent it. A store surveillance video showed Gomez standing in front of the tube system portal, taking an envelope out of a canister, and putting the envelope into her apron. Later in the shift, after the bookkeeper reported that money was missing from the off-going cashier's till, the head cashier searched the cash register and tube system area but did not find the missing money. The witnesses' testimony and the surveillance recording constitute independent evidence, apart from Gomez's confession, showing that a theft was committed; therefore, the corpus delicti requirement was met. Rocha, 16 S.W.3d at 4; Williams, 958 S.W.2d at 190.

Next, we consider whether the evidence, including Gomez's extrajudicial confession, is legally sufficient to support her conviction for theft. In her written extrajudicial confession, made after she was confronted by the loss prevention manager, Gomez admitted removing the money from the store's canister and taking it home. Gomez also stated she regretted taking the money and offered to return it. The loss prevention manager and the store manager testified Gomez made the same admissions orally when questioned. They also testified that Gomez told them the exact amount that was missing, $1,500, and they had not told her the amount in question. At trial, Gomez testified, contrary to her statement, that she did not take the money; rather, she stated the envelope she admittedly put into her apron contained paperwork, not money. She also testified that after she was summoned to the loss prevention office, she was coerced into writing and signing the confession. However, the loss prevention manager and store manager, who were present when Gomez was questioned and when she made her statement, testified that Gomez was not coerced or restrained. (2)

Having reviewed the evidence in the light most favorable to the verdict, we conclude that a rational jury could have found beyond a reasonable doubt that Gomez took the money without the owner's effective consent and with the intent to deprive the owner of the money. (3) Therefore, we hold the evidence is legally sufficient to support Gomez's conviction, and we overrule her first issue.

In her second issue, Gomez asserts the evidence is factually insufficient because it is conflicting. In a factual sufficiency review, we consider the evidence in a neutral light, but we do not substitute our judgment for that of the jury and do not intrude on the jury's role as the sole judge of the weight and credibility given to the evidence and witnesses' testimony. Johnson, 23 S.W.3d at 7. Moreover, as the fact finder, the jury may resolve conflicts in the evidence and may draw reasonable inferences from the evidence. Watson, 204 S.W.3d at 417. Here, the jury was able to view the video tape of Gomez taking the envelope, hear the live witnesses' testimony, including Gomez, and read her written confession, and to then weigh and assess the credibility of each piece of evidence. Based on our review of the record, we cannot say that the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or that the verdict is against the great weight and preponderance of the evidence. Watson, 204 S.W.3d at 414-15. Therefore, we hold the evidence is factually sufficient to support Gomez's conviction and we overrule her second issue.

Because the evidence is both legally and factually sufficient to support Gomez's theft conviction, we overrule her issues on appeal and affirm the judgment of the trial court.

 

Phylis J. Speedlin, Justice

Do Not Publish

1. Witnesses described the tube system as similar to those used at drive-through banks.

2. In the charge, the court instructed the jury not to use the confession for any purpose if they found Gomez was unlawfully restrained. Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005) (appellate court employs rebuttable presumption that jury followed the trial court's instructions).

3. Money is property. Tex. Pen. Code Ann. 31.01(5)(C) (Vernon Supp. 2006).