Rosario Cantu v. State

NUMBER 13-03-123-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG ROSARIO CANTU, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 214th District Court of Nueces County, Texas. M E M O R A N D U M O P I N I O N Before Chief Justice Valdez and Justices Rodriguez and Garza Opinion by Chief Justice Valdez Appellant, Rosario Cantu, was convicted in a bench trial of third degree felony theft and sentenced to eight years imprisonment. See Tex. Pen. Code Ann. § 31.03(a) (Vernon 2003). The trial court suspended appellant’s sentence, placed her on community supervision, and ordered her to pay $33,500 in restitution. By one issue, appellant claims the evidence is legally insufficient to support her conviction. We reverse and render. I. Facts and Procedural History Appellant worked as a housekeeper for the complainant, Kary Klingman O’Hair, from April 20, 2002 through July 20, 2002. During this time, appellant worked on Saturdays from 9 a.m. until 2 p.m. On July 20, 2002, O’Hair discovered that her jewelry box was missing. She confronted appellant about the missing jewelry box. According to O’Hair, appellant denied taking the jewelry. O’Hair then called police and filed a report while appellant was still present. Appellant was later arrested and charged with theft. At trial, O’Hair testified that she kept a jewelry box underneath a low dresser in her bedroom. On July 13, 2002, she noticed marks on her carpet in the bedroom consistent with someone moving the jewelry box but did not inspect the box because she thought appellant moved the dresser while cleaning her bedroom. On July 20, 2002, after noticing the jewelry box was missing, O’Hair called appellant into her bedroom and questioned her about the missing jewelry. O’Hair testified that appellant responded by listing references of previous employers and then asked O’Hair if she wanted appellant to leave. O’Hair said no but called the police. Further, O’Hair testified that only appellant, herself, and her husband, had access to the jewelry. O’Hair also testified that she last saw the missing jewelry in early July, but could not give a specific date. Corpus Christi Police Officer Simon Hernandez responded to O’Hair’s theft complaint on July 20 and spoke to appellant during his investigation. According to Officer Hernandez, appellant’s demeanor was calm and assured, and she denied knowledge of the missing jewelry. Officer Hernandez did not take fingerprints or arrest appellant at that time. However, he did prepare a police report, which was forwarded to investigating officer, Detective Gilbert Garcia. Detective Garcia testified that he called appellant into the police station, read appellant her rights in Spanish, and then questioned her about the jewelry. The record indicates appellant’s primary language is Spanish. Detective Garcia testified that he told appellant that O’Hair would be willing to drop the charges if the jewelry was returned. Detective Garcia stated that appellant then asked if she could come back in a couple of days. Detective Garcia responded that “she could if she came back with the jewelry; otherwise, it would be a waste of her time and my time.” According to Detective Garcia, appellant then stated she would be back. However, according to her attorney, appellant did not return because her attorney advised her not to. During the course of his investigation, O’Hair called Detective Garcia and told him she found the jewelry box wrapped in a plastic bag in another bedroom, which O’Hair used for storage. However, most of the jewelry was missing. On cross-examination, Detective Garcia stated no fingerprints were found on the jewelry box and that the missing jewelry was never linked to or found in appellant’s possession. He also testified that no one saw appellant in possession of the property, or otherwise exercise control of it. Further, he stated that he checked pawn shops in Corpus Christi and Houston, but found no evidence that the missing jewelry had been pawned. Appellant was found guilty, and this appeal ensued. II. Discussion By one issue, appellant contends the evidence is legally insufficient to support her conviction because the State presented no evidence that appellant appropriated the property or otherwise exercised control over it. In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict, asking whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In a legal sufficiency review, the fact-finder remains the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony. Rodriguez v. State, 32 S.W.3d 921, 925 (Tex. App.–Corpus Christi 2000, no pet.). “The court is to review the evidence as it is already weighted by the jury’s verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.” Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). Sufficiency of the evidence should be measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried. Id. at 240. A person is guilty of theft if she unlawfully appropriates property with the intent to deprive the owner of the property. Tex. Pen. Code Ann. § 31.03(a) (Vernon 2003). “Appropriate” means: (A) to bring about the transfer or purported transfer of title to or other nonpossessory interest in property, whether to the actor or another; or (B) to acquire or otherwise exercise control over property other than real property. Id. § 31.01(4). The indictment alleged that appellant appropriated the property by “acquiring and exercising control over the property.” The State contends it proved appellant was the thief with the following circumstantial evidence: (1) appellant’s adoptive admission while being questioned by Detective Garcia; and (2) the fact appellant, aside from the homeowners, had sole access to the premises where the jewelry was stolen. “Circumstantial evidence is ‘direct proof of a secondary fact which, by logical inference, demonstrates the ultimate fact to be proven.’” Cowan v. State, 840 S.W.2d 435, 438 n.10 (Tex. Crim. App. 1992) (quoting Taylor v. State, 684 S.W.2d 682, 684 (Tex. Crim. App. 1984)). Here, the chain of inferences the State alleges show appellant acquired possession of the jewelry are: (1) appellant’s response to Detective Garcia amounted to an implied acknowledgment that she had the jewelry to return; and (2) appellant’s acknowledgment should be considered an adoptive admission of Detective Garcia’s accusation that she had stolen the jewelry under rule of evidence 801(e)(2)(B). See Tex. R. Evid. 801(e)(2)(B). In this case, appellant’s statement, “I’ll be back,” cannot be construed as an acknowledgment or admission that appellant stole the jewelry from O’Hair. This alone cannot give rise to a reasonable inference of possession. Notably, Garcia’s testimony shows that just prior to the comment, Garcia had not accused appellant of stealing the jewelry. He merely told her to return only if she brought back the jewelry. Even assuming her response could be interpreted as an acknowledgment or admission of any kind, at best appellant merely indicated that she may have known where the jewelry was. Such knowledge does not equate to possession or appropriation. Even if a reasonable inference of possession can be made from her statement, possession alone cannot give rise to an inference of guilt: To warrant an inference of guilt from the circumstance of possession alone, the possession must be personal, recent, unexplained, and involve a distinct and conscious assertion of right to the property. Sweeny v. State, 925 S.W.2d 268, 270 (Tex. App.–Corpus Christi 1996, no pet.) (citing Sutherlin v. State, 682 S.W.2d 546, 549 (Tex. Crim. App. 1984)). Here, there is no evidence appellant exercised a conscious assertion of right to the jewelry. See id. The State’s access argument is similarly without merit. O’Hair testified that from the time she last saw the jewelry until the time she noticed it was missing, she, her husband, and appellant were the only persons with access to the house. Access to property alone is not sufficient to support the conviction. See Thomas v. State, 915 S.W.2d 597, 599 (Tex. App.–Houston [14th Dist.] 1996, pet. ref’d). No direct evidence established that appellant acquired or exercised control over the jewelry. Further, no rational fact-finder could infer from the circumstantial evidence presented at trial that appellant exercised control over the jewelry. Viewing the evidence in the light most favorable to the verdict, we find no rational trier of fact could have found that appellant unlawfully appropriated the jewelry with the intent to deprive O’Hair. See Johnson, 23 S.W.3d at 7. Thus, the evidence was legally insufficient to support the conviction for theft. III. Conclusion Because we hold the evidence is legally insufficient, we reverse the judgment of the trial court and render an acquittal for appellant. Rogelio Valdez, Chief Justice Do not publish. Tex. R. App. P. 47.2(b) Opinion delivered and filed this 15th day of July, 2004.