## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-15-00216-CR

ANDREWNIK THOMAS APPELLANT V. THE STATE OF TEXAS STATE

---------- FROM COUNTY CRIMINAL COURT NO. 1 OF DENT ON COUNTY TRIAL COURT NO. CR-2014-08535-A

---------- 

### MEMORANDUM OPINION 1

---------- Appellant Andrewnik Thomas appeals her conviction for theft of property valued between $50 and $500, 2 raising two points. Firs t, she contends that the

1 See Tex. R. App. P. 47.4.

2 See Tex. Penal Code Ann. § 31.03(a) (Wes t Supp. 2015). At the time of appellant’s offense, theft of property valued between $50 and $500 was a Class B misdemeanor. See Act of May 29, 2011 , 82nd Leg., R.S., ch . 1234, § 21, 2011 Tex. Sess. Law Serv. 3301, 3309 (West) (current version at Tex. Penal Code Ann. § 31.03(e)(2)(A)). Currently, theft ofproperty valued under $100 is a Class2 trial court erred by denying her motion for a directed verdict because the State did not present sufficient ev idence establishing her un lawful appropriation of property and the value of th e property. Second , she argues that the trial court erred by including an instruction in the jury charge on the law of parties because there was no evidence to support a verdict convicti ng her as a party to theft. We reject both arguments and affirm the conviction. Background Facts In September 2014, Walmart asset protection asso ciate Josh Hooper saw two women, now identified as appellant and Ja coya Davis, engage in what he deemed to be suspicious behavior. Hooper testified, and State’s Exhibit 2 (a surveillance recording) corr oborates, that appellant an d Davis had already placed several commonly stolen cosmetic items in the bottom and top of a cart, with those items atop the cart placed beside t he only purse in the cart. After Hooper watched appellant and Davi s select more cosmetic items, he saw them walk toward a women’s accessories departme nt, where appellant grabbed a purse from a shelf and put it in the cart. Ho oper, who was approx imately twenty to thirty feet from appellant and Davis, saw appellant pu t the items from the bottom of the cart in that newly taken purse. Davis similarly placed the items at the top of the cart in the purse located there.

C misdemeanor, and theft of property valued between $100 and $750 is a Class B misdemeanor. Tex. Penal Code Ann. § 31.03(e)(1), (2)(A).3 Hooper watched appellant and Davis mo ve toward the front of the store and walk past the last point s of sale with the unpaid-f or merchandise in the two purses that were drape d on their shoulder s. Appellant carri ed the unpaid-for Walmart purse on her shoulder, and Da vis carried the other purse on her shoulder. Both women were apprehen ded and taken to the store’s loss prevention office, where Hooper got t he unpaid-for merchand ise and purse that appellant had been carryin g and had a cust omer service manager produce a training receipt showing the value of items taken. That receipt, later verified by Dallas Police Department Officer James Ke teltas as an accurate depiction of items, showed the total value to be $1 04.34. The items taken by appellant include the purse, a bathin g suit, some health and beauty accessories, and cosmetics. The State charged appellant with theft. She pled not guilty, but a jury convicted her. 3 The trial court assessed her punishment at 100 days’ confinement but suspended the impositi on of the sentence and placed her on community supervision for eighteen months. She brought this appeal. The Trial Court’s Denial of a Directed Verdict In her first point, appellant contends that the trial court erred by denying her motion for a directed verdict. She arg ues that the evidence is insufficient to prove that she was the per son who possessed and appr opriated the unpaid-for

3 Appellant’s first trial ende d in a mistrial after a ju ry became deadlocked on the issue of her guilt.4 purse and the unpaid-f or retail merchandise within it and to prove that the value of the items approp riated was over $50 but less than $500. The challenge to the denial of a motion for directed verdict is actually a challenge to the sufficiency of the evidence to support a conviction. Carnley v. State , 366 S.W.3d 830, 833 (Tex. App.—Fort Worth 2012, pet. ref’d). In our dueprocess review of the sufficiency of eviden ce to support a conv iction, we view all of the evidence in the light most favora ble to the verdict to determine whether any rational trier of fact could have fo und the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). 4 This standard give s full play to the resp onsibility of the trier of fact to resolve conflicts in the testim ony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Id. ; Murray v. State , 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied , 136 S. Ct. 198 (2015). The trier of fact is the sole judge of the weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs v. State , 434 S.W.3d 166, 170 (Tex. Crim. Ap p. 2014). Thus, when performing an evidentiary sufficiency review, we may not re-evaluate the we ight and credibility of the evidence and substitute our j udgment for that of the factfinder. See

4 In her brief, appellant discusses standards related to the now-defunct factual sufficiency review of elements that the State is required to prove beyond a reasonable doubt; we must review the sufficiency of the evidence to prove those elements only under the Jackson standard. See Brooks v. State , 323 S.W.3d 893, 895 (Tex. Crim. App. 2010); Lozano v. State , 359 S.W.3d 790, 809 (Tex. App.—Fort Worth 2012, pet. ref’d).5 Montgomery v. State , 369 S.W.3d 188, 192 (Tex. Crim . App. 2012). Instead, we determine whether the necessary infere nces are reasonab le based upon the cumulative force of the evidence when vi ewed in the light most favorable to the verdict. Murray , 457 S.W.3d at 448. The jury is generally free to accept or reject any or all of the evid ence of either party, and we must presume that the factfinder resolved any conflicting inferences in fa vor of the verdict and defer to that resolution. Id. at 448–49; Hernandez v. State , 161 S.W.3d 491, 500 & n.28 (Tex. Crim. App. 2005). A person commits theft by unlawfully appr opriating property with intent to deprive the owner of the property. Tex. Penal Code Ann. § 31.03(a). Appropriation occurs when a person acquir es or otherwise exercises control over property, and the appropriati on is unlawful if it is wi thout the owner’s effective consent. Tex. Penal Code Ann. § 31.01(4)(b) (West Su pp. 2015), § 31.03(b)(1). Sufficiency of evidence establishing unlawful appropriation Appellant argues that the evidence is insufficient to establish her unlawful appropriation of property bec ause Hooper contradicted himself as to who had Walmart’s purse containing stolen items when appellant and Davis passed the last points of sale. Appella nt argues that Hooper “tes tified that [appellant] had the purse but later testified th at . . . Davis had the purse.” On direct examination, Hooper test ified unambiguousl y that appellant carried the unpaid-for purse containing th e other stolen items. On redirect examination, a prosecutor asked Hooper, “[A]t some point, [you ] went into what6 we’re going to call Jacoya’s . . . purse, which is Walmart’s purse, and pulled the items out, correct?” Hooper stated, “Yes .” Hooper then confirmed that the jury saw a receipt of those items before asking for clarification as to whose purse was at issue: “In Jacoya’s purse?” The necessary inference that appella nt appropriated the unpaid-for purse and its unpaid-for contents, including cosmetics, appare l, and health and beauty items, is reasonable based on the cumulati ve evidence when viewed in the light most favorable to the verdict. See Jackson , 443 U.S. at 319, 99 S. Ct. at 2789. Appellant’s claim that Hooper presented conflicting testim ony, to the extent it was conflicting, is presumed to have been resolved by the jury in favor of the conviction. See Murray , 457 S.W.3d at 448–49. We refrain from supplanting the judgment of the factfinder by reevaluating the weight and credibility of the evidence. See id. The record, when read in its entirety, supports a re asonable inference that Davis had the purse she brought into t he store and that ap pellant unlawfully appropriated the unpaid-for pu rse and its contents. Hooper testified that he saw appellant take a purse from the shelf; that he saw her place apparel items, 5 health and beauty products, and other cosmetic items fr om the bottom of the cart

5 The receipt’s listing of a “DUFFLE” bag and “FG PANT,” “NB ROLL CUFF,” “GLOVES,” “PANTY,” and “NN SOC KS” could be reasonably understood to be the purse and apparel items, resp ectively, that Hoop er testified to.7 in that purse and recovered such; and that he saw appellant wa lk past the points of sale with the Walmart purse draped on her shoulder. Given the weight of Hooper’s cumulati ve testimony, a rational jury could have rejected the allegedly conflicting testimony that was made only on redirect in response to an apparent misstatement by a prosecutor. Two answers to questions that contradict the record on the whole and misidentify who possessed the unpaid-for Walmart purse and its contents could fa irly be rejected and do not overcome the rational presumption that the jury resolved the conflicting inferences in favor of th e verdict. We reject appe llant’s argument that the evidence is insufficient to establish that she unlawfu lly appropriated another’s property. Sufficiency of evidence establishing value Appellant also contends that the evid ence is insufficient to establish the stolen property’s value. “Value” for the purposes of the theft statute is generally the fair market value of the property at the time and place of the offense. Tex. Penal Code Ann. § 31.08(a)(1) (West Su pp. 2015). There is no exclusive method for proving fa ir market value. Keeton v. State , 803 S.W.2d 304, 305 (Tex. Crim. App. 1991); Gonzalez v. State , No. 13-11-00599-CR, 2013 WL 6834798, at *5 (Tex. App. —Corpus Christi July 29, 20 13, pet. ref’d) (mem. op., not designated for publication). Sale pric e at the store, give n a reasonable time for selling the property, is eviden ce of fair market value. See Keeton , 8038 S.W.2d at 305. Value reflected on a pric e tag, too, is an acceptable method. Gonzalez , 2013 WL 6834798, at *5. Appellant contends that the present case is factually analogous to Scott v. State

. 741 S.W.2d 435 (Tex. Crim. Ap p. 1987). The court in Scott held that evidence of value was in sufficient to support a conviction when the only testimony concerning value was provided by the owner and was based on a car’s trade-in value, a value formulated by di ffering standards than those for cash or fair market value. Id . at 438–39. Unlike the record in Scott , our record consists of Hooper’s testimony as to the $104 .34 value of the unpaid-for retail merchandise found in appella nt’s possession and an orig inal receipt indicating the $104.34 totaled price of such items at the time and place of the theft. Although appellant argues th e “training receipt” is insu fficient evidence of value, Hooper testified that original receipts su ch as the one admitt ed into evidence are customarily produced upon retrieving unp aid-for Walmart merchandise, and this receipt in particular was subs equently verified as an accurate depiction of the merchandise. Cf. Himelright v. State , No. 06-13-00246-CR, 2014 WL 4558919, at *5 (Tex. App.—Texarkana Sept. 16, 2014, no pet.) (mem . op., not designated for publication) (relying on a Walmar t receipt as evidence of value). Given the sufficiency of evidence to convic t appellant as a principal in theft, and in light of Hooper’s testimony and app ellant’s possession of the unpaid-for items, we conclude that view ing the evidence in the light most favorable to the verdict, a rational jury could have found beyond a reasonable doubt that9 appellant unlawfully appropriated property va lued, in total, at more than $50 but less than $500. See Jackson , 443 U.S. at 319, 99 S. Ct. at 2789; see also Tex. Penal Code Ann. § 31.03(a). For these reasons, we overrule appellant’s first point. The Trial Court’s Law of Parties Jury Instruction In her second point, appellant challeng es the propriety of the trial court’s jury instruction on the la w of the parties. Th e instruction stated, All persons are parties to an offense who are guilty of acting together in the commission of an o ffense. A person is criminally responsible as a party to an offens e if the offense is committed by his own conduct, by the conduct of an other for which he is criminally responsible, or by both. A person is criminally responsi ble for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solici ts, encourages, directs, aids or attempts to aid the other person to commit the o ffense. Mere presence alone will not constitu te a party to an offense. At trial, appellant objected to this in struction on the basis that there was no evidence to support its submission. In our review of a jury charge, we first determine whet her error occurred

. Kirsch v. State , 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). If error occurred, whether it was preserved de termines the degree of harm required for reversal. Id. For the reasons stated below, we hold that the trial court did not err by including the instruction on the law of parties. A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the co nduct of another for which he is10 criminally responsible, or by both. Tex. Penal Code An n. § 7.01(a) (West 2011). A person is criminally resp onsible for an offense comm itted by the conduct of another if while “acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.” Id. § 7.02(a)(2) (West 2011). A trial court must charge the jury fully and affirmatively on the law applicable to every issue raised by the evidence. Mullins v. State , 173 S.W.3d 167, 178 (Tex. App.—Fort Worth 2005, no pet.) (mem. op.). A law of parties instruction is proper if sufficient evid ence supports a jury verdict that the defendant is criminally responsib le under the law of parties. Id. In making this determination, courts may consider events that occurred before, during, and after the commission ofthe crime. Goff v. State , 931 S.W.2d 537, 545 (Tex. Crim. App. 1996), cert. denied , 520 U.S. 1171 (1997). Appellant contends that the law ofparties instruct ion was erroneous because there was insufficient evidence to show that she had acted with the intent to solicit, encourage, direct, aid, or attempt to aid Davis in the commission of theft. While appellant’s criminal responsibility ma y be best supported by evidence under a principal actor theory, we conclude that there is sufficient evidence to support a verdict that appella nt is criminally re sponsible under an alternate theory as a party to the offe nse and to therefore support the challenged instruction.11 Hooper’s testimony establishes that appellant a nd Davis were together in the Walmart store and that bot h placed similar unpaid-foritems in the same cart and eventually concealed t hem in the purses in that cart. Moreover, Hooper testified that the two women were together at all points in the store, including when they were apprehended pa st all points of sale wi th their purses similarly concealing unpaid-for items. The evidence concerning the events be fore, during, and after the theft is sufficient to qualify as some evidence of appellant ’s criminal responsibility as a party to theft. See id . Therefore, we conclude that the trial court did not err by including the law of parties instruction. But we also hold that even if the tria l court erred by including the law of parties instruction, the e rror was harmless. Preserve d error in a jury charge requires reversal if it was “calculated to in jure the rights of [t he] defendant,” which means no more than that there must be some harm to the accused from the error. Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006); Reeves v. State , 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). Here, in considering the strong evidence of appellant’s guilt as a principal to the underlying theft, the trial court’s in clusion of the law ofparties instruction was harmless. See Black v. State , 723 S.W.2d 674, 675 (Tex. Crim. App. 1986) (“Where the evidence clearly supports a de fendant’s guilt as a principal actor, any error of the trial court in charging on the law ofparties is harmless.”); see also Cathey v. State , 992 S.W.2d 460, 46 6 (Tex. Crim. App. 1999) (stating the12 same), cert. denied , 528 U.S. 1082 (2000). Accordingl y, even if the trial court did err, the error was not a reversible one. For all of these re asons, we overrule appellant’s second point. Conclusion Having overruled appellant’s two points of error, we affirm the trial court’s judgment.
/s/ Terrie Livingston TERRIE LIVINGSTON CHIEF JUSTICE PANEL: LIVINGSTON, C.J.; GABRIEL and SUDDERTH, JJ. DO NOT PUBLISH Tex. R. App. P. 47.2(b) DELIVERED: July 14, 2016