i i i i i i



### MEM ORA ND UM OP INION No
. 04 -0 8- 00 64 6- CR Flor E. ARRIAGA, Appellant
v . T h e STA TE of

Te xas, Appellee Fr om the 186th J udicial District Court, Be x ar County , Texas

Trial Court No. 2006-CR-5701 Honora ble Maria T ere sa He rr, Judge Presiding Opinion by : Kar en Ang elini, J ustice Sitt ing: Kar en Ang elini, J ustice

Sandee B ry an Mar ion, J ustice Phy lis J . Speedlin, J ustice Deliver ed and F iled: J uly 15, 2009 AFF I RMED Flor E. A rriag a wa s char g ed with one count of theft from an e lderly individual, $500 - $1500, and three counts of debit car d abuse. She was found guilty on all counts and wa s sentence d to two y ear s confineme nt in state jail, pr obated, to r un concur rently
. Additionally , with r espec t to the theft
c ount, sh e wa s f

ine d $ 15 ,0 00 . O n ap pe a l, Ar ri a g a argue s th a t ( 1) the e vid e nc e is l e g a lly and fa c tua lly insufficient; (2) her r ight to conf ro n t at i o n was violated pur suant to Crawf ord v. W ashington , 541 U. S. 3 6 ( 20 04 ); and

(3 ) t he tr ia l c ourt

e rr e d in ov e rr uli nghe r h e ars ay

ob je c tio n. We a ff

ir m.04

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- 2- B ACKG ROUND Th e all eg ations ag ainst Arria g a stem fr om her e mploy ment with the complainant, Mar y Kelley . I n 2 005, Kelley

was a n eig hty -y ear -old woman who, a fter a surg ery in ear ly 2005, neede d the he lp o f c are g ive rs . T hu s, sh e hir e d D ome sti c Ag e nc y to pr ov ide c are g ive rs fo r h e r. Do me sti c Ag ency sent Arr iag a to work f

or Ke lley . I n October

2005, Arria g a had be en working for Ke lley for a couple of months when Ke lley acc used Arr iag a of stea ling he r money by fra udul en t l y u s i n g her ATM debit car d. Five months l ater , Kelley died. Arr iag a did not stand trial until J uly 2008, at which time she admitted that she had use d Kelley ’s ATM debit ca rd, but testified that Ke lley had g iven her consent to use the c ard. Thus, the fac tual issue to be deter mined by the jury at trial wa s whether Kelley had g iven Arr iag a conse nt to use the ATM debit ca rd. T RI AL At tr ia l, t he State c a lle d s ix wit

ne sse s: R ic ha

rd De an Wa lsh , Ci nd

y Mc Qu art e rs , B e nja

min Pa ul Watt, Pa tr ic ia

Sand us ky , O ff icer Aaro n Pemb le y , a

nd De te c tiv e Da

vid Ki nn e y . T he de fe ns e called only

one witness: Arr iag a. Richard De an Walsh, Mary Kelley ’s son, testified that afte r his mother’s ope n-hea rt surg ery in Janu ary

20 05 , s he wa s un a

ble to take c are of he rs e lf and ne e de d a c are g ive r. Th e c are g ive rs wo uld
make me a ls f

or his mot he r, he lp h e r w ithc ho re s, dr ive he r p la c e s, and a ssist her wi th p ur c ha se s. Walsh further testified that his mother mostly paid bills by chec k and rar ely used cash. A ccor ding to Walsh, when his mother did withdraw cas h , s h e d i d s o from an A TM at a br anch of her ba nk beca use she did not like to pa

y the fee s associate d with using another ATM. Kelley ’s bank r ecor ds
we re a dmi tte d in

e vid e nc e , a

nd he r b ank state me nt f

or Oc tob e r 2 00 5 s ho we d f

our AT M w ith dr a wa ls. O nO c t o b e r

7 , 2 0 0 5 , $ 2 0 0 w a s w i t h dr aw nf r o m a c o n v e n i e n c e s t o r e A T M , w h i c h c h ar g e d K e l l e y a04

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1 ... Us i n g b a n k r e c o r d s , D e t e c t i v e K i n n e y w a s a b l e t o d e t e r m i n e t h e e x a c t d a t e a n d t i m e o f t h e A TM w ithd ra w a l.

- 3- fee of $1.50. He r bank c harg ed her an additional fe e of one dollar. On Oc tober 11, 2005, $300 wa s withdrawn f

rom a c onvenienc e store ATM, which char g ed Kelley a fee of $1.75. Her bank cha rg ed he r a n a dd iti on a l f

e e of on e do lla

r. On Oct ob e r 1 2, 20 05 , $ 30 0 w a s a g a in w ith dr awn fr om a convenie nce store ATM, which c harg ed Ke lley a fee of $1.50. Her

bank cha rg ed her an additional fee of one dollar
. Also on October 12, 2005, $150 was withdra wn from the A TM at Kelley ’s bank branc h. Kelle y ’s s o n , W al s h, was a sked at trial whe ther Ke lley would need $950 in c ash over a period of a wee k to pay

her bills. Walsh replied that she would not, explaining that his mother’s c ar
wa s p a id f

or , h e r h ome wa s p a id f

or , a nd tha t K e lle y jus t ha d r ou tin e , n or

ma l bi lls that sh e , a s a prac tice, paid by

chec k. Cin dy Mc Qu art e rs , a

los s p re ve nti on

mana g e r f

or Va le ro En e rg y , th e n te sti fi e d th a t in October 2005, she wa s asked by Detec tive Kinney

about w h et her V aler o Energy ’s conve nience
s to r e s h a d

r e ta in e d v id e o ta p e o f O c to b e r 7 , 2 0 0 5 , a

n d O c to b e r 1 2 , 2 0 0 5
. B e c a

u s e th e videotapes
re pe a t th e mse lve s e ve ry

fi ft e e n d ay s, Mc Qu art e rs wa s una ble to r e tr ie ve vid e ota

pe rel a tin g to Oc tob e r 7 , 2 00 5. Ho we ve r, sh e did re tr ie ve vid e ota

pe of Oc tob e r 1 2, 20 05 , at 8: 17 a .m. 1 T h e videotape show ed Ar

riag a ente ringthe conve nienc e st ore a lone and withdra wing money

from the ATM. Be njamin Paul W at t , who in October 2005 worke d in the Card Servic es De partment of Kelley ’s bank, testified that on October 12, 2005, he re ceive d a call from P atricia Sandusky , another bank employ ee, informing him that one of the bank’ s customers, Ke lley , was re porting fra udulent activity with respec t to ATM transac tions. Watt testi fied that Ke lley opened he r ac count on J uly 7, 2005, and that as a

customer ope ning a

n acc ount, she was offe red a debit car d. Watt further testified04

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- 4- that Kelley

had had no de bi t ca rd t ra n s actions in J uly , Aug ust, or September. I n October

2005, Kelley had four debit car d transac tions, one at the bank location, and three at an offsite ATM. And, he testifie d t h at Kelley

had no debit ca

rd transa ctions in November. A ccor ding to Ke lley ’s bank
re c or ds , th e fi rs t ti me he r de bit c ard wa s use d wa s on Oc tob e r 7, 200 5, a t a con ve nie nc e sto re AT M. Patricia S andusky , a bank employ ee, next testified. S he testi fied that on October 12, 2005, Kelley and her car eg iver, a

Hispanic woma

n who was a

bout 5’ 3”, c ame into the bank br anch. K elley was upset a

nd said that she had some transac tions on her debit car d that wer e not he rs and that ther e was money

missing from he r account. S andusky printed out the activity on Kelley ’s ac count. Kelley revie wed the tr ansac tions and identified three transac tions that wer e not her s. When asked whe ther the debit ca rd h ad ev er been out of he r possession, Kelley responde d that it had not. When asked whether any one else had contr ol over he r car d, Kelley said that her c are g iver kne w the PI N number, be c a us e wh e n th e y

we nt t o a dr ive -t hr u A TM , s he wo uld

have to g ive he r c are g ive r the c ard and te ll her c are g iver the PI

N number to c omplete the tra nsaction. Ac cordingto Sandusky , Arria g a said that “it was not me [who] di d those transa ctions.” Sandusky testified that she c alled B enjamin Watt o f th e b a nk ’ s c a r d service s depar

tment, who printed out two forms for Sandusky : a Cardholder

Dispute For

m and a A TM/Fre edom Card F raud Resear ch F orm. Both f

orms wer e admitted in evidenc e. Ac cordingto Sandusky , she helped Ke lley fi ll o ut b oth

fo rm s. Th e Card

ho lde r Di sp ut e Form i nd ic a te s th a t K e lle y wa s d isp uti ng$8 07 .7 5 in unauthorized cha

rg es on h er d eb i t ca rd; that Kelley had the c ard in he r possession; and that she discovere d the loss and re ported the loss o n October 12, 2005. The ATM/F ree dom Card Fr aud Resear ch F orm states that she had authoriz ed her car eg iver, Arriag a, to use her car d; that she knew04

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2 ... A l t ho ugh K el l ey’ s b ank st at em ent s ho ws t hat t hi s t rans act i o n hap p ened on W ed nesd ay, O ct o b er 12 t h, B e n ja m in W a tt te stif

ie d tha t i f a tra n sa c tio n o c c u rs a fter 2 :3 0 p .m ., i t will no t p o st un til the ne x t d a y.

- 5- wh o ma y have us e d h e r c ard ; and

tha t he r P I N w a s in he r w a lle t w iththe c ard . T he fo rm the n h a s a pla c e fo r “ Me mbe r’ s Co mme nts ,” wh ic h s ta te s th e fo llo wi ng : Card has been in possession. The first time Mary Kelley used the c ard w as Tuesda y 2 afte rnoon at the L ive Oak B ranc h and withdre w $ 1 5 0
. Mary Kelley and F lora [Arriag a] are the only

ones to Mrs. Kelley ’s knowledge [who] knew the c ard numbe r. S an d u s ky t es t i fi ed t h at s h e h an dwr o t e t h e ab o v e f o r K el l e y b e c au s e K el l ey h add i ff i cu l t y wr i t i n g. Kelley then sig ned both f

orms. Sandusky told Ke lley that befor e the bank would r eimburse he r for the fr a ud ule nt t ra ns a c tio ns , K e lle y

wo uld have to f ile a po lic e re po rt
. On cr oss-examination, the defense questioned Sandusky about whethe r Ke lley

said she had
ever g one to an AT M to withdraw money with her c are g iver: And it’s on y our – the other sheet. On r eadingit, the car d has been in my possession. The fir st tim e that Ms. Kelley or Mar y Kelley used the c ard w as Tuesda y afte rnoon. So as my memory is start – m y

memory is starting to c ome bac k. Ithink I asked he r when she activate d the ca rd bec ause in orde r to ac tivate the ca rd, y ou have to do a PI N-ba sed transa ction. And I think that she thought that – she was say ing that she activate d the ca

rd whe n she we nt to the L ive Oak br anch. B ut looking at the tr ans a c tio ns , it

wa s a c tiv a te d p ri or to t

hat. Wh e n w e se e that ty

pe of sit uatio n, we wi ll ask the member, “I s there a ny body else [who] could have g otten y our mail, [who] could have g otten the card, and could have g otten the PI N that was ma iled to y ou and g one and use d the ca

rd and the PI

N since the y

have ac ce s s t o i t? And that’s whe re thi s c ou ld b e fr om. Th e tr ans a c tio ns pr ior to t he 12 th c ou ld have be e n – e a sil y c ou ld have be e n –

if any bo dy has posse ssi on

of tho se tw o it e ms, the tr ans a c tio ns c ou ld have be en done. The de fense then aske d Sandusky how somebody

activate s a ca

rd: We will ord e r th e c ar d
. I t ta k e s s e v e n to te n b u s in e s s d a y s to r e c e iv e th e car d. Se pa rate ly a PI N, wh ic h is fo ur

numbe rs , is ma ile d to the m. T he y c an c ome a

c ou ple of day s befor e or a fter the car d. Once they have the car d and the PI

N, they g o to an ATM, they

put the car d in there, the y enter the PI N that was mailed to them, a nd they can do a n inquiry or withdraw

money . And now it ’s wi th that – that PI N-ba sed transac tion, that card ha s just been ac tivated.04

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- 6- On re -direc t, Sandusky

testified that Kelley

thought she had ac tivated the ca rd on Tuesday , October 11, 2005, beca

use that wa s the first time she had use d the ca rd. Of fi c e r A aro n Pe mbl e y

the n te sti fi e d th a t on

Oc tob e r 1 2, 20 05 , at 2:3 0 p .m. , K e lle y c a me into the pol ice station with her c are g iver, Ar riag a, and w anted to file a repor t. After K elley

provided him with information, Office r Pembley contac ted B enjamin Watt at the bank and obtained Ke lley ’s fi na nc ia l re c or ds sh ow ing wh e n and wh e re the fr a ud ule nt t ra ns a c tio ns ha d ta

ke n p la c e . K e lle y

tol d Offic er Pembley

that Arria g a had acc ess to he r car d and PI N number, but wa s not allowed to make withdrawa ls without her permission. Kelley told Office r P embley that Arria g a was not authorized to make the thre e tra

nsactions at issue. Detec tive David Kinney then testified that he rec eived the repor t filed by Kelley on October 14, 2005. He inter

viewed K elley

and ob t ained a written statement. De tective Kinne y went to the three convenie nce store s in que stion a nd was able to r etrieve video footag e of the Oc tober 12, 2005, transac tion, which showed Ar riag a makinga withdra

wal at the c onvenienc e store A TM. At the end of direc t examination, t he following exchang e took place betwee n Detec tive Kinney and the State: Q: An d d id [K e lle y ] co mpl e te an in te nt t o p ro se c ute fo rm ? A: Yes, she did. Q: An d w ho did

sh e say sh e wi sh e d to fi le c ha

rg e s a g a ins t? A: The de fenda

nt in this case . Then, on cross-e x amination, the following exchang ed occ urre d betwee n Detec tive Kinney and the de fense : Q: So i n th e se c on d paragraph [of the re po rt ] wh e n y ou

sa id t hat Ms
. K e l l e y a c kn o w l e d g e d

t h a tA r r i a g a h a d a c c e s s t o h e r

c ar d an d P IN number.04

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- 7- A: Yes, sir. Q: Correc t? And also said that she w as not al lowed to make a withdrawa l without permission? A: Cor

re c t. Q: Does n ’t that sug g est that at some points she may have ha d permission? A: I ’m not sure if she wa s allowed or not. She a dvised me that she wa s no t a uth or ize d at th e tim e s o f t he se thr e e tr ans a c tio ns . Q: Well, I ’m just try ing to make sure I understand w hat y ou meant whe n y ou wrote it that wa

y . [I t] seems to imply

at ce rt ai n t imes she had pe rm iss ion

and c e rt a in t ime s sh e did

no t. A: That’s the g ist of what I understood fr om our meeting , y es, sir. Q: I n o the r w or ds , th a t’ s w hat y ou int e nd e d w he n y ou

wr ote that? A: Yes, sir. Q: Ok ay . D id you

se e any ne e d to in qu ir e fur the r o f h e r w he n s he tol d y ou that? For e xamp le : Ms. Ke lle y , tel l me what y ou me a n. Whe n d id she have permission and whe n did she not have pe rmission? A: Wel l, l ike Isa id, sir , sh e br ou g ht t he se thr e e se pa

rate inc ide nts to my attention, stating that these we re the three that wer e not authoriz ed, so that’s . . . Q: Okay . So y ou just took i t that whateve r transac tions occurr ed in the past, these pa

rticular thr ee in he r re collection we re not a uthorized? A: Cor

re c t. Th e d ef en s e then moved to admit Defenda nt’s Ex hibit 1, which was admitted without objection. Def

endant’ s Ex hibit 1 is a copy of the a ffidavit Ke lley

signe d at the poli ce s tation and
s t at es t h e f

o l l o wi n g: My name is M ary

Ke lle y and Ia m 80 y e ars old
. De t. Da vid Ki nn e y

a ssi ste d me wi th the pre par at i on of this statement, [but] the words a nd thoughts a

re my own. On04

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- 8- 10/12/05, at 1430, [ my bank] called me a nd repor ted that over

eig ht hundred dollars ha d b e e n w ith dr awn

fr om my

a c c ount usi ng my

AT M/D e bit

c ard . T he fi rs t withdrawa l was on 10/06/05, at 1 5 44 hours for $202.50, the second w as [on] 10/10/05, at 1130, for $302.75, and the third was on 10/12/05, at 0820, for $302.50. Isuspect one of my car e taker s named Flor Arria g a may have use d the ca rd to steal from me. She k n ew wher e the c ard w as and she knew whe re the PI N number w as beca use she oc casiona lly

did transac tions on my

behalf
. After the State re sted, Arr iag a testifed on he r own be half. Accordingto Arriag a, she w as prese nt with Kelley when Kelley first activate d her debit card. A rriag a wa s then asked to de scribe what happe ned whe n Kelley activate d her c ard: We went to the ATM, and we attempted to a ctivate the car d but three times it failed to d o s o. An d, sin c e the thi rd tim e the c a

rd wo uld no lon g e r w or

k b e c a us e it j us t qu it working , then I

would help her

g et up i n the car and took her to the offic e. I took her to the lobby

of the ba nk, and I spoke to someone ove r there , one of the g irls there. And [Kelley ] t old her what had bee n g oing on with her c ard. A nd, so Isat down, and she continued doing her t hings. And, that’s when the g irl told [ Kelley ] t hat she ha d to work the c ard thr ee t i mes in order to activate it. And, she did not remember the number thre e times. And, so that’s whe n she aske d me and that’s when Ihelped he r to d o th a t. Ar ri a g a te sti fi e d th a t K e lle y

a sk e d h e r s e ve ra l ti me s to take mon e y ou t of the AT M f

or he r, be c a us e Kelley c o u ld n o t w a lk w e ll an d w a s u s in g a w a lk in g s ti c k
. A r r ia g a w a s n o t a

b le to r e me mber the exact dates that Ke lley

asked he r to use the ATM ca rd , b u t she did remembe r on one oc casion, Kelley was at the animal hospital and needed money to pay the animal hospital. So, while Kelley
rema ined at the hospital, Arr iag a we nt to retrie ve money from an ATM. Arriag a did not know why Kelley did not write a c heck. A rriag a wa s then shown pictures of herse lf using K elley ’s ATM ca rd
a t th e c on ve nie nc e sto re . A rr ia g a a dmi tte d th a t the pe rs on in the pic tur e wa s he r. B ut, a c c or din g to Arria g a, she ha d Kelley ’s per mission t o use the c ard, a

nd the day

in que stion wa s the day that Kelley asked her to w ithdraw money to pa y the animal hospital. When asked why she had told t h e b ank employ ee that she had not take n the money , Arria g a testi fied, “What I felt was that they asked the04

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- 9- question as if I

had take n it out for my self and that’s why Ianswe red.” L ater , when a sked ag ain why she did not expl ain to the bank e mploy ee tha t Ke l l ey occa sionally

g ave he r per

mission t o use the
car d, Arria g a stated, “ Well, the deal i s when she told me this, I rea lly felt bad so I

kind of froze a

nd Idid not say

any thing.” Acc ording to Arria g a, she then went to Mex ico bec ause he r father ha d died, and whe n she ca

me bac k, her boss infor

med her that there would be an inve stigation. On c ro ss- e xami natio n, Ar

ri a g a te sti fi e d that sh e did no t kn ow wh e n h e r f a the r d ie d, bu t sa id that it was sometime during the m onth of October 2005. Arria g a claimed that she stopped wor king for Ke lley

beca use she ha d to leave to g o to Mex ico bec ause of her f ather ’s death
. Ho we v er , on
c ro ss- e xami natio n s he wa s conf ro nte d w ithhe r p ay c he c k s tub s, wh ic h d id n ot s ho w a g a p in pay ment u n ti l D e c e mb e r 2 0 0 5
. A c c o r d in g to A r r ia g a ’ s p ay c h e c k s tu

b s , s h e d id n o t r e c e ive a pay chec k betwee n Dec ember 2, 2005, and March 3, 2006. When aske d if that could have been w hen her f ather passed a way , Arria g a could not rec all, but claimed that there was not a lot of work dur ing that time period. Arr iag a wa s then questioned about the thr ee tr ansac tions at issue: Q: Did y ou make a ll three of those transac tions that we’re talking a bout on Mrs. Kelley ’s [debit] car d? A: Ye s, ma ’a

m. Q: An d y ou

ma de the on e that wa s a t the dr ive -t hr u te lle r fo r t

he 15 0; i s that c or re c t? A: Ye s, ma ’a

m. Q: One wa s for 200? A: Ye s. Q: I s that corr ect? One wa s for 300? A: Ye s, ma ’a

m.04

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- 10- Q: And the third one w as for 300? A: Ye s, ma ’a

m. Q: Th os e we re a ll thr e e fr om c on ve nie nc e sto re s? A: Uh -h

uh , y e s. Q: And then one w as fr om the drive-thr u at Randolph Br ooks, at the ba nk , c or re c t? A: Ye s, ma ’a

m. Q: What were the – what wa s the withdrawa l for on Oc tober 6th? A: To tell y ou the t ruth, Idon’t know. She simply asked me to withdraw t h e m o n e y. Q: An d w hat a

bo ut O c tob e r t

he 10 th o r t

he 11 th – 10 th, y e s. A : Th e o n l y

t h i n g Ir e m e mb e r

i s t h e d ay

t h a tw e w e r e a tt h e [a

n i m a l] ho sp ita l and

sh e ne e de d th e mon e y , bu t I wo uld no t a sk he r o the rw ise be c a us e that w a s h e r b us ine ss. Q: So when y ou wer e in the bank – Oh, tell me about ac tivating the c ard ag ain. How did y ou use the c ard on O ctober 6th, the first time? A: She went to the ATM outs ide, she stuck the c ard in a nd she punche d in the numbers, but it blocked – t h e numbers we re bloc ked. So, she g ot b a c k in

the c ar a nd the n tha t’ s whe n I too k h e r a ro un d th e ba

nk to t a k e h e r t o t h e l o b b y. Q: What about the transac tions on – the transac tion on October 6th? A: She did it with m y help. Q: At the conve nience store? A: Ye s, ma ’a

m. Q: So now sh e g ot out and we nt i ns ide a

c on ve nie nc e sto re and

tr ie d to us e it thr e e tim e s? A: No.04

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- 11- Q: Th e n w he n d id s he tr y to u se it thr e e tim e s? Y ou sa id t hat – you jus t said that y ou used the car d – on October 6th, you used it three times at conve nience stores. And then – e x cuse me , g o ahea d. A : No
. W h a t h a

p p e n s i s t h a t I w o u l d o n l y t a k e h e r an d t h e n s h e wo uld te ll m e to w ith dr aw the mo ney . A nd that’ s a ll I

wo uld do is s imp ly he lp h e r o ut. Q: Ok ay . H owlon g wa s h e r – wh ic h p e t w e nt t o th e anim a l ho sp ita l? A: He r c a t. Q: And this is the same day that y ou went to the bank? A: Ye s , i nt h e m o rn i n g. Q: So, he r cat had a dire emer g ency that day . Your testimony is the cat had an emer g ency that day , had to g o to the vet, she c ouldn’t use her chec kbook, and she se nt y ou to an ATM to withdraw$300? A: No. The c at, by then, had alre ady been at the hos pital for about thre e or fo ur da y s. Q: And, this wa sn’t mentioned by any body at the bank, either

by y ou or Mr s. Ke lle y , th a t th a t sa

me da y y ou ha d p a id t

he mon e y fo r t he c a t? A: No , ma ’a

m. Q: And, y ou don’t rec all why y ou took out the money

on the 6t h for 200 and why y ou took out 300 on the 10th? A: She wo uld t ell me to w ith dr aw t his mon e y

and that’ s w hat I

wo uld do . I re a lly c an’ t tell y ou wh a t sh e wo uld wa nt i t f or . I wo uld sim ply do what she a sked me to do. Q: And on the 6th, which wa s the first time that the ATM ca rd was used, that’s not the day

that y ou had diffic ulty

with the PI

N number? A: Idon’t reme mber. Q: You hear d the bank person testify that the first time you u s ed the c ard , y ou jus t us e d th e c ard

and the PI N and y ou

a c tiv a te d it , c or

re c t? A: Ye s, Ihe ard

that.04

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- 12- Q : An d y ou we re thefir st o ne to u se thec ar

d, c orre c t? A: To tell y ou the truth, y eah. Q: An d y ou

a c tiv a te d th e c ard

on that f ir st d ay y ou us e d it ? A: Wit h her. Q: Wit h her. A t the convenie nce store ? A: Ye s, ma ’a

m. Q: So on that day she t ook her walker and walked into the convenienc e store? A: Ye s. Q: Ok ay . W h en y ou withdrew the $150, that was a ctually on Tuesday a ft e rn oo n, c or

re c t? A: Ye s. I f t

hat’ s w hat it

say s, that’ s wha

t it is. Q: And t hen W ednesda y morning is when y ou took the money out, the $300 that we sa

w on the videotape ? A: Yes. Arria g a then testified that she did not tell the bank employ ee that Kelley had g iven her

permission to make the w i t h d ra wa l s , n or did she inform the police office r at the police station that she had permission. L E GAL AND F A C TUA L S UF F I CI E NCY Arria g a ar g ues that the e vidence is leg ally an d fa ct u al l y

insufficient to support the jury ’s finding s that she committ ed the offense s of theft fr om an elder ly individual and debit car d abuse, beca use no rational juror could have found that Arr iag a ac ted without Kelley ’s conse nt. I n a leg al suffic iency

revie w, we view the evidenc e in the light most favor able to the ve rdict and then de termine whe ther a rational trier

of fa ct could have found the e ssential elements of the04

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- 13- offe nse beyond a re asonable doubt. Pr ibl e v . S tat e , 175 S.W .3d 724, 729-30 (Te x . Crim. App. 2005). I n a fa ctual suff

iciency revie w, we vie w all the evide nce in a n eu t ral lig ht and will set the verdic t aside only

if the evide nce is so wea

k that the verdict is clea

rly wrong and manife stly

unjust, or the contra ry evidenc e is so strong that the standard of proof bey ond a re asonable doubt could not have been me t. Id. at 730-31. F urther, in a ssessing the sufficie ncy of t he evidence to support a convic tion, we must consider all

the evidenc e that the jury was permitted, whe ther rig htly or not, to consider. Mo ff v . S tat e , 131 S.W. 3d

48 5, 48 8 ( Te x. Cr im. Ap p. 20 04 ); Tho ma s v . S tat e , 753 S.W .2d 688, 695 (Tex. Crim. App. 1988). On appe al, Arr iag a ar g ues that the e vidence is leg ally insufficient to establish that she a cted without Kelley ’s consent. Arria g a emphasizes that althoug h “obviously unavailable to testify ” due t o h e r d e a t h , K e l l e y w a s a

b l e t o “ s p e a k

t o t h e j u r y th r o u g h h e r

p o l i c e s t a t e m e n tt o D e t e c t i v e K i n n e y, wh ic h w a s in tr od

uc e d into e vid e nc e by the de fe ns e , with ou t obje c tio n. ” Ar ri a g a e mph a size s the la st
s e n t e n c e i nK e l l e y ’ s a f

f i d a v i t : “ F l o r

[ A r r i a g a ] kn e w w h e r e t h e c ar d w a s a n d s h e kn e w w h e r e t h e P IN number wa s beca

use she occa sionally did tr ansac tions on my behalf .” Ar riag a empha siz es the wor d “occ asionally ,” ar g uing that Kelley admitted she had g iven Arriag a permission to use t he ca rd more than once . Howeve r, in making this arg ument, Arria g a ig nores the rest of K elley ’s statement whe re she spec ifically

states that the following three transac tions were ma de without he r conse nt: 10/6/05 for $202.50; 10/10/05 for $302.75; a nd 10/12/05 f

or $302.50. Fur

ther, Kelley ’s s t at ement specific ally

acc uses Arr iag a: “I

suspect one of my

car e take rs named F lor Arr iag a may have use d the
c ard to ste a l fr om me .” Thus , the e vid e nc e is le g a lly su ff ic ie nt to sup po rt

the fi nd ingthat A rr ia g a

did not have Ke lley ’s per

mission i n making the three transac tions described a bove.04

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- 14- Wit h reg ard to fa ctual suff iciency , Arria g a ar g ues that t he “gr eat weig ht and pre pondera nce of t he evidence proves that Arria g a did have Mary Kelley ’s consent to use her ATM/de bit card on
a l l f o u r o c c a s i o n s w h e r e i t w a s u s e d , ” a g a i n e mp h a s i z i n g K e l l e y’ s u s e o f t h e w o r d “ o c c a s i o n a l l y” in her stateme nt to police. Howeve r, i n d oing so, A rriag a ig nores much of the evidenc e pre sented
a t tr ia l. At tr ia l, e vid e nc e wa s in tr od uc e d, inc lud ingba

nk state me nts, sh ow ingthat K e lle y mos tly used che cks to pay bills and rare ly used ca sh. When Kelley

did withdraw c ash, she liked to use he r bank bra nch so that she would not be c harg ed additional fee s. Patricia Sandusky , the bank employ ee,
an d D e te c ti v e K inn e y b o th te s ti f ie d th a t K e ll e y to ld th e m th a t th e thr e e tr an s a c tions from convenie nce store ATMs wer e fr audulent and that she believed Arriag a was responsible. Sandusky also testif ie d th a t w h e nme mb e r s r e qu e s t d e b it c ar d s , th e PI

N n u mb e r

an d c ar d is ma il e d to the m separ ately . Acc ording to Sandusky , Kelley said that she thoug ht she had first ac tivated her car d on October 11, 2005, when she withdrew money from the loca l bank bra

nch. Howe ver, Sandusky

noted t h a t t w o t r an s a c t i o n s i n d i s p u t e h a d o c c u r r e d b e f o r e t h a t d a t e . W h e n a s k e d a b o u tt h i s d i s c r e p a n c y, Arria g a at f

irst claimed that she ha d helped Ke lley activate the ca

rd at the loc al bra

nch AT M and went with her

inside to the bank lobby when the ca rd wo u l d not activate. H oweve r, whe n it was pointed out that the first transa ction actua lly occur red at a convenie nce store ATM, Arr iag a cha ng ed her story : She claimed that she took K elley to the convenie nce store ATM and t h at Ke l l ey
acc ompanied her

inside with a walke r to activate her car d. Reviewing all the evidenc e, we hold that the e vid e nc e is f

a c tua lly su ff ic ie nt.04

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3 ... W e n ot e t hat Arr i aga has not com pl ai ned i n her bri ef about com ment s made by K el l ey t o O f f i cer P emb l ey o r D e te c tive K inn e y. See T EX . R. A PP . P
. 38
. 1 (i ).

- 15- C R A WFO R D V

. W A S HI NGT ON I n her third a

nd fourth issues, Arr iag a cla ims that her rig ht to confrontation was denied by the a dmi ssi on

of Ke lle y ’s ba

nk re c or ds and

by Sand us ky ’s te sti mony

a bo ut h e r c on ve rs a tio n w ith K e l l e y. 3 Pursuant to Crawf ord v. W ashington , 541 U.S. 36, 59 (2004), the a dmission of testim onial hear say violates the Confrontation Clause unless the decla rant is shown to be unavailable to testify
and the de fe nd ant ha d a pri or op po rt un ity to c ro ss- e xami ne the de c lara nt. Although we defe r to a trial court’s de termination of historical f acts a nd cre dibilit y , we review whether a s tatement is testimonial de novo. W

all v . S tat e , 184 S.W .3d 730, 742 (Tex. Crim. App. 2006). Although the Court in Cra wfo rd left “f or anothe r day

any eff ort to spell out a compre hensive definition of ‘testim onial,’” it stated t hat “[ w]hatever else t he term cover s, it applies at a minimum to prior testimony

at a pr eliminary

hear ing, be fore a g rand jury , o r at a fo rm er tria l; and to police interrog ations.” Cra wfo rd , 5 41 U. S. at 68 . We fi rs t no te that a lth ou g h A rr ia g a c omp la ins g e ne ra lly of the a dmission of Kelley ’s “ba nk rec ords,” State’ s Ex hibit 1 merely consists of Kelle y ’s bank statements and c ance led che cks, which re v eals the nor mal rec orded a ctivity

on Kelley ’s ac count with the bank. Nothing in State’s Ex h i b it 1 is t estimonial. St ate’ s Ex hibit 2 consists of Ke lley ’s
me mbe rs hip a

pp lic a tio n to op e n the a c c ount and mor e ba nk state me nts re la tin g to K e lle y ’s a c c ount. Nothing in State’ s Ex hibit 2 is testimonial. I ndeed, the only

rec ords that could ar g uably b e consi dere d testimonial were a dmitted as State’s Ex hibit 3. State’s Ex hibit 3 consists of a “ Cardholder Dispute For

m,” a “ ATM/Fr eedom Car d Fr aud Resea

rch F orm,” a

nd a p ri nt-out of transa ctions on Kelley ’s ac count. I n the Cardholder Dispute For

m, Kelley indicated that the de bit card w as alwa y s in her possession, that she discover ed04

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- 16- the loss on 10/12/05, and that there w ere unauthorized transa ctions in the amount of $807.75. I n the ATM/Fr eedom Car d Fr aud Resea rch F orm, Kelley listed the three unauthorized transa ctions, stated that she had a

uthorized Arriag a to use he r ca rd in the past, that she kne w who may have used her
car d, and that she be lieved that person to be Arriag a. Nex t to the part of t he form that asks whethe r the PI N was w ith the card, t here is the foll owing handwr itten note, which Sandusky testified that she wrote f or Ke lley : “Mrs. Ke l l ey s t ated that the PI N was in he r wa llet with the car d on a piec e of paper .” And, at the end of the form under “Membe r’s Comments,” there is the following handwr itten note: “Card ha s been in posse ssion. The first time Ma ry Kelley used the car d was Tue sday afte rnoon
a t th e L ive Oa

k B ra nc h a nd wi thd re w $1 50 . M ary

Ke lle y and F lor a [Ar ri a g a ] ar e the on ly

on e s to Mrs. Kelley ’s knowledg e [who] know the card numbe r.” The print-outs include transa ctions that have be en hig hlighted. Sandusky testified that af

ter Ke lley identified a tra

nsaction that she ha d not authorized, Sandusky

would highlig ht that transac tion on the print-out. Arria g a also c omplains of statements made by Kelley to Sandusky
. Th e State re sp on ds that the c omm e nts c on ta ine d w ith in S ta te ’s Exhi bit 3 a nd the state me nts made to Sandusky

by Kelley

are not testimoni al bec ause the y wer e made to a non-g overnme nt employ ee. Neither the United States Supreme Court nor the Texas Court of Criminal Appeals has extended Cra wfo rd

to include statements made to non-g overnme nt employ ees. See De L a P a z v. Sta te , 273 S.W .3d 671, 680 (Tex. Crim. App. 2008) (noting that the Supreme Court ha s not resolved the issue of whe ther a

statement made to a non-g overnme nt employ ee c an be t es t i m o n i al and declining to addre ss the issue, instead holding that the State had not me t its burden unde r Cra wfo rd ). We need not addre ss the issue here , howeve r, beca use even if the comments conta ined within State’s04

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- 17- Exh i b i t 3 a n d t h e c o m m e n t s m a d e b y K e l l e y t o S an d u s ky w e r e t e s t i m o n i a l , an y e r r o r in t he ir
a dmi ssi on

wa s h arm le ss. We m us t r e ve rs e a

c on vic tio n f

or a vio la tio n o f a de fe nd ant’ s ri g ht of c on fr on ta tio n unle ss we de termine be y ond a re asonable doubt that the err or did not contribute to it. See T EX . R. A PP . P. 44 .2 (a ); se e als o De law ar e v . V an Ar sd all , 475 U.S. 673, 681-84 (1986) ( violation of defe ndant’s ri g ht of confr ontation subject to harmless-e rror analy sis). I n consideringwhether such er ror wa s harmful, we may

consider se vera l fac tors: (1) how important the state ment was to the State’s ca se; (2) whe ther the state ment was c umulative of other e vidence ; (3) the prese nce or absenc e of e vidence
corr oborating or contra dicting the statement on materia l points; and (4) the over all streng th of the State’s ca se. Sc ott

v . S tat e , 227 S.W .3d 670, 690 (Tex. Crim. App. 2007). We may also consider the
source and natur e of the err or, the amount of emphasis by the State on the statement; and the weig ht that a juror w ould probably g ive it. Id. Wit h these c onside ra t i ons in mind, we must ask ourselves whether there is a rea sonable possibility that the Cra wfo rd e rr or , if any , mo ve d th e jur

y fr om a state of non-pe rsuasion to one of pe rsuasion on a pa rticular issue. Id. Th e st ateme nts ma de by

Ke lle y to S and us ky and tho se state me nts ma de in S ta te ’s Exhi bit 3 wer e important to the State’s c ase; howe ver, they wer e also cumulative of other evidenc e. Of fice r Pembley testified t hat Kelley told him Arria g a was not authorized to use t he debit car d with respec t to t he thr e e tr ans a cti on s at is sue. De te c tiv e Ki nn e y te sti fi e d th a t K e lle y

c omp le te d a

n in te nt t o prosec ute form with re spect to the thre e transactions at i ssue and said that she wished to file charg es
a g a ins t A rr ia g a . F ur

the r, t h e re wa s o the r e vid e nc e c or ro bo ratin g the state me nts . T he ba nk state me nts showed that Ke lley

rar ely withdrew c ash fr om her a ccount a nd used che cks for

mo s t of her transac tions. They

also showed that she had never neede d over $950 in cash over a period of a wee k04

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- 18- in the previous mont hs or t he subsequent one. Her son testified that she did not have a mortg ag e or
a ca r pay ment, and only

had routine bills. Fur

ther, he testified that bec ause she did not like to pay additional fee s, as a prac tice, she used t he ATM at t he bank branc h. The thre e tra nsactions at issue
wer e not at Ke lley ’s l ocal branch, but wer e completed at convenience store ATMs. And, on O ctober 12, 2005, Arria g a neve r stated to either Sandusky or Off icer Pembley that she made the transa ctions
or that sh e ha d Ke lle y ’s c on se nt. An d, Sand us ky te sti fi e d that Ar

ri a g a c la ime d a ff

ir ma tiv e ly no t to have ma de the tra

nsactions. I ndeed, the State’s ca se ag ainst Arria g a wa s quite strong
. Most of the evidenc e contr adicte d Arria g a’s ve rsion of eve nts. Arriag a cla imed that she had he lped Kelley activate the debit ca

rd and w hen ther e wa s trouble with the ca rd, they went inside the ba

nk branc h. But, whe n reminded that the first transac tion occurr ed at a convenie nce store ATM, she c laimed that Kelley had ac companied he r to the convenience store. S he had no cre dible explanation for why she told Sandusky

that she had not made the thre e tra nsactions on Kelley ’s beha lf or why she re mained silent at the police station. Fina lly , we note that the State did not place a lot of empha sis on Kelley ’s statements during closing argument but instead focuse d on Arria g a re maining silent at the bank and police station and the r easona bleness of Arriag a’s ve rsion of eve nts. W e, ther efor e, hold that any
err or in admitting State’s Exhibi t 3 and Sandusky ’s testimony relating to Ke lley ’s statements wa s ha rm le ss. H E ARS AY Arria g a ar gues in her fi ft h i s sue that Sandusky ’s testimony of Ke lley ’s statements we re inadmissible hearsa

y . The State re sponds that the statements wer e admi s s ib le a s an excited utteranc e. We reviewa trial c ourt’s ruling on the admissi bility of evide nce unde r an a

buse of discr etion standard. Mo ntgom e ry

v . S tat e , 810 S.W .2d 372, 378 (Tex. Crim. App. 1990).04

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- 19- Texas Rule of Evidence 803(2) states t hat a hearsa y statement is not excluded by the hea rsay rule if it is a st atement “relating to a st artling event or condition made while the de clar ant was unde r the stress of ex citement caused by the eve nt or condition.” T EX . R. E V ID . 803(2). The evidenc e her e showed that a s a re sult of a ca ll from her ba nk, Kelley

lear ned that her

acc ount was m issing $800. Sandusky testified that Kelley

was ve ry upset when she arr ived at the ba nk, claiming that money

was missing from her acc ount. When Sandusky and Kelley identified the three transac tions made without her c onsent, Sandusky

asked K elley if she had the car d in he r possession at all times. Kelley said that she did. Sandusky

then aske d her if a

ny one could have take n the ca rd without her kno wledg e. Sand us ky te sti fi e d that Ke lle y did no t w ant t o b e lie ve that he r c are take r c ou ld d o s uc h a thi ng . T hu s, the evidenc e shows a f

rail, eig hty -y ear -old woman, who w as re cov er i n g fr o m hear t surg ery and neede d help at all times, lear ning tha t s o m eo n e h ad taken money out of her a ccount a

nd then on
arr ivi nga t th e ba

nk , lea rn ing that her c are take r co uld be the re sp on sib le pa rt y . U nd e r t he fa c ts o f t

his
c a s e , w e c an n o tf

i n d t h a tt h e t r i a l c o u rta

b u s e d i t s d i s c r e t i o ni na d m i t t i n g S an d u s ky’ s t e s t i m o n y. Moreove r, eve n if the trial cour t erre d i n overr

uling Ar riag a’s he arsa

y objection to Sandusky testify ing a

bout Kelley ’s statements, any s u ch error w ould be har mless for the same re asons as explained above. See T EX . R. A PP . P. 44.2(b) ( “Any other e rror , defe ct, irre g ularity , or var iance that does not aff

ect substantial rig hts must be disreg arde d.”). C ONCL US I ON We affir m the judgme nt of the trial cour t.
Kar en Ang elini, J ustice DO NO T PU B L I SH