                             NUMBER 13-16-00007-CR

                               COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


JUAN GALLEGOS,                                                                Appellant,

                                            v.

THE STATE OF TEXAS,                                                           Appellee.


                    On appeal from the 148th District Court
                          of Nueces County, Texas.


                        MEMORANDUM OPINION
           Before Justices Contreras, Benavides, and Longoria
               Memorandum Opinion by Justice Benavides

      By three issues, appellant Juan Gallegos challenges his conviction for theft. See

TEX. PENAL CODE ANN. §§ 12.425(b), 31.03(a), (b), (e)(4)(D) (West, Westlaw through 2017

1st C.S.). Gallegos alleges: (1) the trial court incorrectly denied his motion to suppress;

(2) the trial court incorrectly considered certain evidence during the punishment phase;

and (3) the evidence was insufficient to support his conviction. We affirm.
                                      I.     BACKGROUND

      Gallegos was charged with theft of property in an amount less than $1,500.00, a

misdemeanor which was enhanced to a state jail felony because of two prior misdemeanor

theft convictions. See id. § 31.03(a), (b), (e)(4)(D). Gallegos additionally had two prior

felony convictions, which the State used to enhance his charge to a second-degree felony.

See id. § 12.425(b).

      At trial, Frank Leaf, a loss prevention officer at Kohl’s department store, testified

that on March 26, 2015, he was alerted to an alarm going off near an emergency exit door

in the store. As Leaf reviewed the surveillance cameras, he saw a gold Nissan sedan with

its trunk ajar leaving the back area of the store near the time the emergency door’s alarm

was activated. Leaf also noticed that the license plate on the Nissan seemed to be

obscured. Leaf testified that the emergency door was near the electronics section, and

upon reviewing the surveillance video further, Leaf noticed Gallegos entered Kohl’s

through the front entrance. The video depicted Gallegos browsing the store, selecting

items, and placing them in a shopping basket. Leaf then stated that Gallegos entered the

electronics area, looked at the Samsung electronics area, appeared to make a phone call

on his cell phone, and selected a Samsung television and soundbar from the display. Leaf

said that Gallegos then headed towards the direction of the emergency exit door, and

shortly thereafter, the door’s alarm activated. Leaf noticed that Gallegos was never seen

on the video leaving the front entrance. Leaf identified Gallegos in open court based on

the video surveillance and testified that Gallegos did not have permission to remove items

from Kohl’s. Although Leaf admitted he did not see the occupants of the gold Nissan as it




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drove away, he formed an assumption that Gallegos left in the gold Nissan based on the

video and timeline of events.

       Officer Andres Lopez from the Corpus Christi Police Department testified during a

motion to suppress hearing and later during the trial that on March 28, 2015, he heard a

call over his police radio regarding a suspicious gold sedan with obscured license plates

seen at a local Wal-Mart. Officer Lopez recalled a similar report the day prior at the nearby

Kohl’s store, and proceeded to Kohl’s when officers were unable to locate the gold sedan

at Wal-Mart. Officer Lopez later located the gold Nissan sedan with duct tape covering

the license plates at Kohl’s. He testified he approached the vehicle and made contact with

Gallegos, who was in the driver’s seat. Officer Lopez felt he needed to investigate why

the license plates were obscured because it could be related to ongoing criminal activity.

Officer Lopez asked Gallegos to move to the patrol vehicle because Officer Lopez was

concerned for his own safety, that Gallegos could leave, and that a crime was ongoing.

Officer Lopez agreed that Gallegos was detained and not free to leave, but was not

Mirandized when speaking to Officer Lopez. See Miranda v. Arizona, 384 U.S. 436 (1966).

In the video from the interior of Officer Lopez’s patrol unit, Gallegos stated that his friend

was in Kohl’s to steal. Gallegos also told Officer Lopez that he did not do anything and he

did not want to get arrested. Officer Lopez allowed Gallegos to leave due to the lack of

stolen merchandise that day.

       Tyler Nunley, a loss prevention officer at Kohl’s, testified as to the events from

March 27 and March 28, 2015. Nunley stated that Leaf had informed him of the theft of

the Samsung products the day before and he had watched the video. Nunely said on

March 27, another man was observed walking around the electronics section, looking at



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the high priced items, and then looking towards the emergency door. Nunley followed the

man, who left without taking any items, and observed him entering a gold sedan with an

obscured license plate. Nunley agreed that the man he saw on March 27 was not

Gallegos, but he believed it was the same car he observed on the video from the day

before. Nunley also worked on March 28, and saw the same man from the day before in

the store. Nunley stated he immediately started looking for the gold Nissan sedan, and

saw police approaching the vehicle. The same man Nunley saw inside the store walked

out and was later arrested by police. Nunley identified Gallegos to police as the man from

the March 26 video.

      Corpus Christi Police Detective Gregory Shipley was assigned the theft case from

March 26. He stated that patrol officers can only arrest when an offense has occurred in

their presence, and that was why Officer Lopez let Gallegos leave on March 28. However,

through Detective Shipley’s review of the video provided by Kohl’s from March 26, his

knowledge of Gallegos, and Nunley’s parking lot identification of Gallegos, Detective

Shipley was able to determine it was Gallegos who took the Samsung television and

soundbar on March 26.

      Gallegos was convicted by the jury of state jail theft, and the trial court sentenced

Gallegos to eight years in the Texas Department of Criminal Justice–Institutional Division

based on finding the two prior felony convictions true. This appeal followed.

                                II.    EVIDENCE WAS SUFFICIENT

      By his third issue, which we will address first, Gallegos challenges the sufficiency

of the evidence supporting his conviction.




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       A.      Standard of Review

       When evaluating a sufficiency challenge, the reviewing court views the evidence in

the light most favorable to the verdict to determine whether a rational jury could find the

defendant guilty beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 899 (Tex.

Crim. App. 2010) (plurality op.); see Jackson v. Virginia, 443 U.S. 307, 319 (1979). The

jury is the sole judge of the credibility of the witnesses and the weight to be given to their

testimony, and a reviewing court is not to substitute its judgment as to facts for that of the

jury as shown through its verdict. Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim.

App. 2012). When the reviewing court is faced with a record supporting contradicting

inferences, the court must presume that the jury resolved any such conflict in favor of the

verdict, even if it is not explicitly stated in the record. Id.

       A reviewing court must measure the sufficiency of the evidence by the elements of

the offense as defined by a hypothetically correct jury charge. Villarreal v. State, 286

S.W.3d 321, 327 (Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex.

Crim. App. 1997)). Such a 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. In order to have reversal of a

conviction on a claim of insufficiency of the evidence, Gallegos must show that no rational

jury could have found all the elements of the offense beyond a reasonable doubt. Brooks,

323 S.W.3d at 902.




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       B.     Applicable Law and Discussion

       A person commits an offense of theft if he unlawfully appropriates property with the

intent to deprive the owner of property. TEX. PENAL CODE ANN. § 31.03. Appropriate means

“to acquire or otherwise exercise control over property other than real property.” Id. §

31.01 (West, Westlaw through 2017 1st C.S.). The intent to deprive an owner of his

property means an intent “to withhold the property from the owner permanently or for so

extended a period of time that a major portion of the value or enjoyment of the property is

lost to the owner.” Id. Appropriation is unlawful if it is without the owner’s effective consent.

Id.

       On March 26, Gallegos was seen on the surveillance video in the electronics area

selecting a Samsung television and soundbar, and shortly thereafter, the emergency door

alarm near the electronics area sounded. When Leaf looked at the surveillance cameras

from that area, he could see a gold Nissan sedan with obscured license plates leaving the

back lot of Kohl’s with what appeared to be a large box in the opened trunk area.

       The following day, Nunley noticed a different man walking around the electronics

area in a suspicious manner. Nunley followed the man through the surveillance cameras

based on the theft the prior day and observed this man enter a gold Nissan sedan with

obscured license plates.      The vehicle appeared to be the same one viewed on the

surveillance videos the day before.

       On March 28, a suspicious vehicle with obscured license plates was reported to

police seen at a nearby Wal-Mart. Officer Lopez remembered the report at Kohl’s and

decided to look in the area. Officer Lopez located the gold Nissan sedan, noticed the

license plates were covered by duct tape, and found Gallegos in the driver’s seat. When



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approached, Gallegos told Officer Lopez that his friend was inside the Kohl’s store to

commit a theft. Nunley approached Officer Lopez a short time later and identified Gallegos

as the man from the video on March 26 when the Samsung television and soundbar were

stolen.

          Based on the evidence presented by the State, a rational juror could have logically

pieced together the events and connected Gallegos’s presence on the surveillance video

and the theft on March 26 being tied to the gold Nissan sedan that Gallegos was located

in, and inferred that Gallegos was involved in the theft. We find the jury was well within its

right to believe the evidence presented by the State showed the appropriate culpable

mental state by Gallegos to deprive Kohl’s of its property and constitute theft. We overrule

Gallegos’s third issue.

                          III.   MOTION TO SUPPRESS WAS PROPERLY DENIED

          By his first issue, Gallegos argues his statements given to police at the time of his

detention were inadmissible. These statements were challenged during a pre-trial motion

to suppress, where the trial court denied the suppression.

          A.     Standard of Review

          We review a trial court’s suppression ruling under a bifurcated standard. Hubert v.

State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010). Appellate courts must view all of the

evidence in the light most favorable to the ruling. Vasquez v. State, 453 S.W.3d 555, 564

(Tex. App.—Houston [14th Dist.] 2014, pet. granted). The trial court is the “‘sole and

exclusive trier of fact and judge of the credibility of the witnesses and evidence presented

at a hearing on a motion to suppress, particularly when the motion is based on the

voluntariness of a confession.” Delao v. State, 235 S.W.3d 235, 238 (Tex. Crim. App.



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2007).

         Regarding findings of fact, especially when those findings are based on an

evaluation of credibility and demeanor, we review the trial court’s rulings under an abuse

of discretion standard. See State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006);

see also Xu v. State, 191 S.W.3d 210, 215 (Tex. App.—San Antonio 2005, no pet.). We

afford almost total deference to a trial court’s determination of historical facts supported

by the record. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). However,

“the trial court’s resolution of mixed questions of law and fact, which does not turn on an

evaluation of credibility and demeanor, is reviewed de novo.” Xu, 191 S.W.3d at 215. The

court of appeals is obligated to “uphold the trial court’s ruling on appellant’s motion to

suppress if that ruling was supported by the record and was correct under any theory of

law applicable to the case.” Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App.

2003) (en banc).

         B.    Applicable Law

         Under the Fourth Amendment, the Supreme Court has held that “a policeman who

lacks probable cause but whose ‘observations lead him reasonably to suspect’ that a

particular person has committed, is committing, or is about to commit a crime, may detain

that person briefly in order to ‘investigate the circumstances that provoke suspicion.’”

Berkemer v. McCarty, 468 U.S. 420, 439 (1984) (quoting United States v. Brignoni-Ponce,

422 U.S. 873, 881 (1975)). “Typically, this means that the officer may ask the detainee a

moderate number of questions to determine his identity and to try to obtain information

confirming or dispelling the officer’s suspicions.” Id. “But the detainee is not obliged to

respond. And, unless the detainee’s answers provide the officer with probable cause to



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arrest him, he must then be released.” Id. “The similarly noncoercive aspect of ordinary

traffic stops prompts us to hold that persons temporarily detained pursuant to such stops

are not ‘in custody’ for the purposes of Miranda.” Id.

       “A police officer may stop and briefly detain a person reasonably suspected of

criminal activity in the absence of probable cause to arrest the person.” Balentine v. State,

71 S.W.3d 763, 771 (Tex. Crim. App. 2002) (citing Terry v. Ohio, 392 U.S. 1, 22 (1968)).

“The officer may use such force as is reasonably necessary to effect the goal of the stop:

investigation, maintenance of the status quo, or officer safety.” Id. “The reasonableness

of a temporary detention must be examined in terms of the totality of the circumstances”

and such detention will be justified when “the detaining officer has specific articulable facts,

which, taken together with rational inferences from those facts, lead him to conclude that

the person detained is, has been, or soon will be engaged in criminal activity.” Id. at 768.

Although there is no length of time rule, the “reasonableness of the detention instead

depends on whether the police diligently pursued a means of investigation that was likely

to dispel or confirm their suspicions quickly.” Id. at 770.

       C.     Discussion

       Officer Lopez testified that he heard a call regarding a vehicle with obscured license

plates, which was similar to a call he received the day prior. When Officer Lopez located

the vehicle described in the Kohl’s parking lot, he was alone. Officer Lopez stated he

approached the vehicle and made contact with Gallegos, who was sitting in the driver’s

seat. Officer Lopez noticed that the Nissan sedan’s license plates were covered by duct

tape, making him suspicious of some type of ongoing criminal activity. Officer Lopez

stated Gallegos was acting in an extremely nervous manner when they were speaking. In



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their speaking, Gallegos told Officer Lopez that his friend “Hector” was inside Kohl’s to

commit a theft.       Because of the suspicious circumstances, Officer Lopez also was

concerned that Gallegos would attempt to leave prior to the conclusion of the investigation.

Officer Lopez also stated that he believed based on his observations that criminal activity

was either ongoing or about to occur. Officer Lopez articulated it was for the totality of

those reasons that he asked Gallegos to step out of his vehicle and placed him in the back

of his patrol unit.

       Officer Lopez also testified that Gallegos was temporality detained while he

conducted his investigation, but was not under arrest and was not placed in handcuffs.

Officer Lopez did state that he patted Gallegos down prior to placing him in the patrol unit

backseat, but did so for Officer Lopez’s safety. Gallegos remained in the back of Officer

Lopez’s patrol unit until the other officers arrived. Gallegos did speak to Officer Lopez

from the backseat of the patrol unit. Although Officer Lopez agreed that he did not read

Gallegos his Miranda warnings, Officer Lopez also stated that Gallegos was never under

arrest. See generally Miranda, 384 U.S. 436. Officer Lopez’s actions were justified in

investigating possible ongoing criminal activity. See Berkemer, 468 U.S. at 439. When

Officer Lopez concluded his investigation and determined that Gallegos had not committed

a crime in his presence, the temporary detention ended and Gallegos was released. See

id. Therefore, we find that Officer Lopez’s detention of Gallegos was temporary and never

rose to the level of an arrest, which would trigger the need for Miranda warnings. See id.

The trial court did not abuse its discretion in denying Gallegos’s motion to suppress. We

overrule Gallegos’s first issue.




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            IV.     TRIAL COURT DID NOT VIOLATE GALLEGOS’S RIGHT TO CONFRONTATION

       By his second issue, Gallegos alleges the trial court violated his right to confront

witnesses by considering a report from the probation department that the trial court

requested in determining punishment.

       A.         Applicable Law and Discussion

       Prior to issuing Gallegos’s sentence, the trial court informed both parties that it had

requested a document from the probation department to help it understand Gallegos’s

criminal history. The trial court also stated that the document produced was not helpful

and it was going to disregard the document in determining the sentence, but it wanted the

parties to be aware the document had been seen. Neither side objected to the introduction

of the report.

       Generally, in order to preserve error, there must be a timely and specific objection

to the complained-of evidence. Davis v. State, 313 S.W.3d 317, 347 (Tex. Crim. App.

2010). Confrontation Clause claims are subject to this preservation requirement. Id.

Because Gallegos did not object at trial to the admission of this document, this issue has

not been preserved for our review. See id.; see also TEX. R. APP. P. 33.1(a). Gallegos’s

second issue is overruled.

                                        V.     CONCLUSION

       We affirm the judgment of the trial court.


                                                                GINA M. BENAVIDES,
                                                                Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
14th day of December, 2017.

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