Toval, Clyde v. State

Affirmed; Opinion of December 18, 2003, Withdrawn and Substitute Opinion filed March 16, 2004 Affirmed; Opinion of December 18, 2003, Withdrawn and Substitute Opinion filed March 16, 2004. In The Fourteenth Court of Appeals ____________ NO. 14-03-00277-CR ____________ CLYDE TOVAL, Appellant V. THE STATE OF TEXAS, Appellee ______________________________________________________ On Appeal from the County Criminal Court at Law No. 12 Harris County, Texas Trial Court Cause No. 1141557 ______________________________________________________ S U B S T I T U T E   O P I N I O N We withdraw our opinion of December 18, 2003, and issue this substitute opinion in its place. Appellant, Clyde Toval, appeals his conviction for misdemeanor theft.[1] In a written statement, appellant admitted taking several items, including bottles of Promethazine and several Xanax tablets, from the pharmacy where he worked. After a trial to the bench, the trial court found appellant guilty and assessed punishment at 180 days in jail, probated for nine months. The parties are familiar with the facts, so we will not recount them in detail here. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.4. Corpus Delecti In his first issue, appellant contends the evidence was legally insufficient to establish the corpus delecti of theft. In reviewing the evidence, we apply the normal standard of review. See Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). The corpus delecti rule requires a defendant’s extrajudicial confession to be corroborated by other evidence tending to show a crime was committed. See Salazar v. State, 86 S.W.3d 640, 644–45 & n.14 (Tex. Crim. App. 2002). The requirement of corroboration is not a demanding one; all that is required is some evidence rendering it more probable that a crime occurred. See Rocha v. State, 16 S.W.3d 1, 4 (Tex. Crim. App. 2000). On direct examination, Craig Strickler, a pharmacist at the drug store where the theft occurred, testified he was aware of items being stolen by appellant from the store, including five pints of “Promethazine with codeine” and “a partial bottle of Alprazolam.” On cross–examination, the following exchange occurred: Q Okay. Loss prevention ultimately makes the decision as to whether there’s a theft, correct? . . . . A I can only—if it’s not dispensed and I can see and I can track what comes in over a given period of time . . . and I can see what’s been dispensed, then it’s gone. Q It’s gone; but you don’t know that there’s necessarily a theft, do you, sir? A It has to be a theft. Q Well, that’s for loss prevention to conclude, correct? A I think that’s—it’s their job to investigate it; but if it’s not dispensed, then it has to be taken. Q Because God forbid there could never be a mistake, could there? A Not of this magnitude, I don’t think, no. Q There could never be a computer error, could there? A No, not—not in this case. It’s just too— . . . . Q Could the discrepancy be a cause of error? A I suppose it could be. Strickler’s testimony was legally sufficient to establish the crime of misdemeanor theft had been committed. While Strickler admitted the possibility of error, his testimony clearly indicated the discrepancy was probably the result of a theft. Accordingly, appellant’s first issue is overruled. Evidence of Loss In his second issue, appellant contends the evidence was legally insufficient to establish the value of the stolen property exceeded $50. See Tex. Pen. Code § 31.03(a).[2] The only evidence of value was in appellant’s written statement, in which he admitted the total theft loss he caused was $341.05. The corpus delecti rule does not require corroboration of each and every element of the crime, see Salazar, 86 S.W.3d at 644–45; thus, independent corroboration of the value was not needed. As appellant admitted taking each of the items alleged and an aggregate value exceeding $50, the evidence was legally sufficient.[3] Accordingly, appellant’s second issue is overruled. Statement Admissibility In his third issue, appellant contends the trial court erred in admitting his written statement. A written statement made by an accused as a result of custodial interrogation is inadmissible against him unless the face of the statement demonstrates the accused was given certain required warnings. Tex. Code Crim. Proc. art. 38.22; see also Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). Neither the statute nor Miranda apply unless the statement was obtained by interrogation of a suspect who was in custody. Williams v. State, 82 S.W.3d 557, 561 (Tex. App.—San Antonio 2002, pet. ref’d). Whether a suspect is in custody is determined by a two-part inquiry: (1) what were the circumstances surrounding the interrogation, and (2) under those circumstances, would a reasonable person feel he or she was not free to terminate the questioning and leave. Garza v. State, 34 S.W.3d 591, 593 (Tex. App.—San Antonio 2000, pet. ref’d); see also Thompson v. Keohane, 516 U.S. 99 (1995); Stansbury v. California, 511 U.S. 318, 322 (1994).[4] The first inquiry is a factual determination concerning the circumstances surrounding the interrogation. Garza, 34 S.W.3d at 593. On review, we give almost total deference to the trial court's determination of these historical facts. Id.; see Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The second inquiry is an application of the legal standard to the facts, and is a mixed question of law and fact that does not turn on the evaluation of the witnesses’ credibility and demeanor; we review this issue de novo. Garza, 34 S.W.3d at 593; Guzman, 955 S.W.2d at 89. The determination of custody depends on the objective circumstances, and not on the subjective views of either the interrogator or the person being questioned. Stansbury, 511 U.S. at 323; Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996).Here, the pharmacy’s loss-prevention manager, DeWayne Harrison, testified he approached appellant in the store, told him he wanted to talk to him, and took him to the break room. Harrison says he then gave appellant a questionnaire to complete and left the room; when he came back, appellant had partially completed the form. Harrison closed the door and began to question appellant. Appellant testified he did not feel like he had any choice but to go with Harrison to the break room and complete the questionnaire because he felt it was work-related and he might lose his job. He said he did not think he could walk out of the break room and Harrison did not tell him he could leave. He acknowledged that Harrison told him the questionnaire was given to all store employees. It is undisputed that no law enforcement officers were present at the time and that at no time during the interrogation was appellant formally arrested. Further, there is no allegation Harrison told appellant he could not leave or was under arrest, nor was there any proof Harrison was armed, locked the break room door, or barred the exit in any way other than closing the door. Discounting, as we must, appellant’s statements of his subjective belief, we hold that under these circumstances the trial court did not err in admitting the written statement. See Dowthitt, 931 S.W.2d at 254–55. In sum, the only significant restriction of appellant’s movement was the closed door. This is insufficient to demonstrate custody. See, e.g., Oregon v. Mathiason, 429 U.S. 492, 493–95, 97 S. Ct. 711, 713–14 (1977) (finding no custody existed even though defendant gave statement in police office behind closed doors). The evidence does not demonstrate appellant was ever in custody.[5] Accordingly, appellant’s third issue is overruled. In his fourth issue, appellant contends the trial court erred in finding his statement was given voluntarily because Harrison, the pharmacy investigator, promised he would not contact the police and would handle the matter internally if appellant gave a statement and signed a restitution agreement.[6] Harrison, however, denied making these promises, thus creating a fact issue for the trial court to decide based on the credibility and demeanor of the witnesses. See Guzman, 955 S.W.2d at 89. Accordingly, appellant’s fourth issue is overruled. The trial court’s judgment is affirmed. /s/ Eva M. Guzman Justice Judgment rendered and Substitute Opinion filed March 16, 2004. Panel consists of Justices Anderson, Seymore, and Guzman. Do Not Publish –– Tex. R. App. P. 47.2(b). [1] See Tex. Pen. Code § 31.03(a) (providing a person commits a Class B misdemeanor if he unlawfully appropriates property worth more than $50 and less than $500). [2] Section 31.08 of the Penal Code defines “value” as “the fair market value of the property or service at the time and place of the offense.” Tex. Pen. Code § 31.08(a)(1). Although “fair market value” is not defined in the Code, it is generally considered to be “the amount the property would sell for in cash, giving a reasonable time for selling it.” Keeton v. State, 803 S.W.2d 304, 305 (Tex. Crim. App. 1991) (emphasis omitted). [3] Appellant cites Wilson v. State, 536 S.W.2d 375 (Tex. Crim. App. 1976), and Riggs v. State, 561 S.W.2d 196 (Tex. Crim. App. 1978), in support of his argument. These cases stand for the proposition that when an aggregate value is placed on property, some of which is alleged to be stolen and some not, there is in effect no evidence of the value of the allegedly stolen property. See Wilson, 636 S.W.2d at 377; Riggs, 561 S.W.2d at 197. In the present case, however, all of the property contained in the aggregate valuation was alleged to have been stolen in the indictment and evidence of that valuation was provided by appellant’s written statement. Accordingly, these cases are unavailing to appellant. [4] See also Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996). In Dowthitt, the Court of Criminal Appeals noted four general situations which may constitute custody: (1) when the suspect is physically deprived of his freedom of action in any significant way; (2) when a law enforcement officer tells the suspect that he cannot leave; (3) when law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted; and (4) when there is probable cause to arrest and law enforcement officers do not tell the suspect that he is free to leave. 931 S.W.2d at 255. [5] We therefore need not consider whether Harrison was acting as an agent of law enforcement at the time of the interrogation. [6] A statement is involuntary, and thus inadmissible, if it is induced by a promise that is: (1) of some benefit to the defendant, (2) positive, (3) made or sanctioned by someone in authority, and (4) of such character as would likely influence the defendant to speak untruthfully. Sossamon v. State, 816 S.W.2d 340, 345 (Tex. Crim. App. 1991); Bordman v. State, 56 S.W.3d 63, 69 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d).