                                                                               ACCEPTED
                                                                          06-14-00222-CR
                                                                SIXTH COURT OF APPEALS
                                                                     TEXARKANA, TEXAS
                                                                     2/26/2015 2:05:46 PM
                                                                          DEBBIE AUTREY
                                                                                   CLERK

                   No. 06-14-00222-CR

                                                          FILED IN
                                                   6th COURT OF APPEALS
                         IN THE                      TEXARKANA, TEXAS
                                                   2/26/2015 2:05:46 PM
                  COURT OF APPEALS                     DEBBIE AUTREY
                                                           Clerk

              FOR THE SIXTH SUPREME

            JUDICIAL DISTRICT OF TEXAS

                      TEXARKANA




           TAMMY KAY TAYLOR, Appellant

                             v.

            THE STATE OF TEXAS, Appellee




             Appealed in Cause No. 1423993

    8th Judicial District Court of Hopkins County, Texas


                   APPELLEE’S BRIEF




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    By:/s/ Nicholas C. Harrison
       Nicholas C. Harrison
       Assistant District Attorney
       State Bar No 24062768
       P.O. Box 882
       Sulphur Springs, Texas 75483
       (903) 885-0641




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                           TABLE OF CONTENTS

TABLE OF CONTENTS                                                          3

TABLE OF AUTHORITIES                                                       4

SUMMARY OF THE ARGUMENT                                                    5

ARGUMENT AND AUTHORITIES                                                   5

STANDARD OF REVIEW                                                         5

I.   The trial court did not err in admitting an extraneous offense.       5

II. Any error in admitting the extraneous offense was harmless.            8

III. The trial court did not make a Hardesty inference finding.            9

IV. Even if the trial court made such a finding, it would not be error.   11

PRAYER FOR RELIEF                                                         13

CERTIFICATE OF SERVICE                                                    14




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                                   TABLE OF AUTHORITIES
Cases
Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App. 1997) ...........................................5
Higginbotham v. State, 356 S.W.3d 584 (Tex.App. - Texarkana 2011) ....................7
Johnson v. State, 967 S.W.2d 410 (Tex.Crim.App. 1998) .........................................8
Morales v. State, 32 S.W.3d 862 (Tex.Crim.App. 2000) ...........................................9
Hardesty v. State, 656 S.W.2d 73 (Tex.Crim.App. 1983)..........................................9
Pardee v. State, 2012 Tex. App. LEXIS 6823 (Tex.App. - Texarkana 2012) ..........11
Jones v. State, 899 S.W.2d 25 (Tex.App. - Tyler 1995) ..........................................11


Rules
Texas Penal Code 31.03(c)(1); ..................................................................................6
Texas Rule of Evidence 404(b); ................................................................................7
Texas Rule of Appellate Procedure 44.2(b); .............................................................8




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                       SUMMARY OF THE ARGUMENT

During the bench trial, the court sitting as fact finder did not err in admitting

testimony concerning an extraneous offense, since it was proven beyond a

reasonable doubt. Even if it was error to admit the extraneous offense testimony,

the error was harmless. The trial court did not make a Hardesty inference finding,

but only considered the State’s arguments along with the evidence. Had the trial

court made such a finding, it would not have been error anyway.

                       ARGUMENT AND AUTHORITIES

Applicant presents two issues for review: (1) Whether it was harmful error for the

trial court to admit testimony of an extraneous offense and (2) Whether the trial

court committed harmful error by making a “Hardesty inference” finding.

                            STANDARD OF REVIEW

      Evidentiary rulings are reviewed under an abuse of discretion standard.

Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997).

      I.     During the bench trial, the court sitting as fact finder did not err

             in admitting testimony concerning an extraneous offense, since it

             was proven beyond a reasonable doubt.




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      During its case-in-chief, the State admitted testimony pursuant to Texas

Penal Code 31.03(c)(1). This provides that “evidence that the actor has previously

participated in recent transactions other than, but similar to, that which the

prosecution is based is admissible for the purpose of showing knowledge or intent

and the issues of knowledge or intent are raised by the actor’s plea of not guilty.”

      Specifically, the State called as a witness Mr. Rupinderjit Singh, the

Appellant’s former employer. (R.R. Vol. III, pg. 182-191). Mr. Singh testified that

he owned a Family Mart convenience store in Hopkins County, Texas, and he

hired Appellant as a cashier before promoting her to store manager. Appellant

worked for him during August 2013, and she was the only person besides Mr.

Singh with access to his office. Mr. Singh testified that Appellant knew that he

would be out of town on August 27, 2013, and he had been gone for four or five

days before that date. On August 27, at approximately 4 a.m. Appellant entered

Mr. Singh’s office and stole approximately $4000 in cash. She then failed to report

for her usual morning shift and stopped taking Mr. Singh’s phone calls. At no point

prior to the theft had Appellant failed to return Mr. Singh’s calls.

      The State acknowledges that Mr. Singh was not physically present in the

store during Appellant’s theft, as of course was her plan. The admissibility of Mr.

Singh’s testimony is based on a theft statute provision which operates much like

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Texas Rule of Evidence 404(b): the prior act is not admissible to prove character,

but to prove intent and modus operandi. In both cases, Appellant became employed

by U.S. citizens of South Asian descent: Mr. Singh in one case and Mr. and Mrs.

Patel in another case. In both cases, Appellant worked herself into a position of

trust and access. In both cases, Appellant waited until her employer was away for

an extended period of time. In both cases, Appellant then committed a theft. And in

both cases, Appellant suddenly shut off all communication with her former

employers.

      Appellant cites Higginbotham v. State, 356 S.W.3d 584 (Texarkana 2011,

pet. Ref’d). In that case, a witness testified to an extraneous offense committed by

the defendant. Unlike this case, appellant in Higginbotham objected at the time of

trial on the basis that the State had not proven the offense beyond a reasonable

doubt. Additionally, the Court described the witness’s statements as conclusory

and inconsistent. In this case, Appellant did not object at the time of the testimony.

(R.R. Vol. III, pg. 182). Mr. Singh’s testimony was clear, unequivocal, and it

comprehensively addressed each element of the offense of theft of property.

      The trial court, as fact finder, could have reasonably found that the State

proved this extraneous offense beyond a reasonable doubt. Appellant complains

that the trial court did not make an express fact finding on the theft from Mr.

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Singh. (Appellant’s Brief at 8). No such finding is required under Texas law, and

Appellant cites no authority in support of that argument.

      II.    Even if it was error to admit the extraneous offense testimony, the

             error was harmless.

      Even though the Court found the admission of the extraneous offense to be

error in Higginbotham, it was determined to be harmless. Id at 592. Error in

admitting evidence concerning extraneous offenses is reviewed under the standard

for non-constitutional error requiring an appellate court to disregard a non-

constitutional error that does not affect a criminal defendant’s substantial rights.

TEX.R.APP. 44.2(b). Reversible error has not occurred if the appellate court, after

examining the record as a whole, “has a fair assurance that the error did not

influence the jury, or had but a slight effect.” Johnson v. State, 967 S.W.2d, 410.

(Tex. Crim. App. 1998).

      The Texas Court of Criminal Appeals has instructed:

      “In assessing the likelihood that the jury’s decision was adversely affected

by the error, the appellate court should consider everything in the record, including

any testimony or physical evidence admitted for the jury’s consideration, the

nature of the evidence supporting the verdict, the character of the alleged error and

how it might be considered in connection with other evidence in the case. The
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reviewing court might also consider the jury instruction given by the trial judge,

the State’s theory and any defensive theories, closing arguments, and even voir

dire, if material to appellant’s claim.” Morales v. State, 32 S.W.3d 862.

(Tex.Crim.App. 2000).

      In this case, the court acted as fact finder, and thus all the concerns

associated with misleading a jury are alleviated. Notably, Mr. Singh’s testimony

consisted of 9 pages of the record out of 153 pages of the State’s case-in-chief and

out of a 221 page record. (R.R. Vol. III pgs. 182-191). At no point during the

State’s closing argument did it even mention the extraneous offense. In light of the

overwhelming evidence of guilt, the admission of Mr. Singh’s testimony, if error,

was harmless.

      III.   The trial court did not make a Hardesty inference finding, but

             only considered the State’s arguments along with the evidence.

      The Hardesty inference is a legal device which may be utilized by the State

during theft prosecutions. Hardesty v. State, 656 S.W.2d 73 (Tex.Crim.App. 1983).

Once the elements of the inference are established, a fact finder may infer from

those facts a defendant’s guilt of theft. The inference is not a presumption, and it

may or may not be sufficient to sustain a conviction. If an actor is found in



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possession of recently stolen property and offers no reasonable explanation for his

or her possession at the time, a fact finder may infer that the actor stole it.

      Appellant complains that the trial court erred by making a Hardesty

inference finding, and that the State failed to lay a proper predicate for the

inference. The State acknowledges that it requested a Hardesty inference finding

from the trial court, however, the trial court declined to make such a finding.

Below is an excerpt from R.R. Vol. III, pgs. 191-192.

      “MR. HARRISON: Your Honor, State has no further witnesses, no further

exhibit evidence. We would – at this time, if we could take up the issue of the

Hardesty inference? (State rests).

      THE COURT: You’re excused, Mr. Singh.

      THE WITNESS: Thank you, sir.

      THE COURT: Did you provide this same –both the case – the Hardesty case

and the section from the Texas Practice Guide – Texas Practice Series regarding

the Hardesty inference to Mr. Ferguson?

      MR. HARRISON: I did, Your Honor.

      THE COURT: Now, you correct me if I’m wrong, but would this not just be

part of your closing arguments?

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      MR. HARRISON: Well, I believe it’s a legal device. I know that there’s no

jury here. It’s not a presumption.

      THE COURT: Right.

      MR. HARRISON: But it is – it’s an inference that the Court can find –

      THE COURT: Sure.

      MR. HARRISON: -- which I think would help our case, but we could

certainly just argue. That’s true.

      THE COURT: What I’m going to do is just kind of understand that that’s

going to be part of the State’s argument in support of their burden of proof. And so

the State has rested their case in chief. Mr. Ferguson?”

      IV.    Had the trial court made such a finding, it would not have been

             error anyway.

      Even if the trial court had made a finding that the State laid a sufficient

predicate to avail itself of the Hardesty inference, such a finding would not have

been error. Appellant cites Pardee v. State, 2012 Tex. App. LEXIS 6823, (Tex.

App. – Texarkana 2012), which states “no inference of guilt can be raised where

police found the stolen property in a place where others have an equal right and

facility of access.”

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      To lay the predicate for the Hardesty inference, the State had to present

evidence that Appellant was found in possession of recently stolen property and

offered no reasonable explanation for her possession at the time. Mrs. Wanda

Henderson testified for the State. (R.R. Vol. III, pgs. 120-153). She stated that

Appellant and Appellant’s husband arrived at Henderson’s place of residence to

unload luggage and personal property. Appellant and her husband used a pickup

truck and the process took two days.

      Mrs. Henderson testified that she observed Appellant and her husband

carrying multiple, “nice” looking suitcases. (R.R. Vol. III, pg. 127). Mrs.

Henderson asked Appellant where they got the suitcases, and Appellant said she

got them from Goodwill for $1.50 each. In court, Mrs. Henderson viewed

photographs of stolen property seized from the residence and identified the

suitcases in the photographs as the same ones Appellant and her husband were

carrying. (State’s Exhibits 2-7). The Victim, Mr. Jitendra Patel, earlier viewed the

same photographs and identified the suitcases as being the very same which were

stolen from him. (R.R. Vol. III pgs. 49-54).

      The trial court, as fact finder, could have reasonably found that Appellant,

either individually or under the law of parties with her husband, was in possession

of recently stolen suitcases and that when she was asked about it by Mrs.

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Henderson she gave an unreasonable explanation in the form of her $1.50

Goodwill story. Appellant’s argument that Mr. Ron Hanson and Mrs. Wanda

Henderson had an equal right of access to the room where the stolen property was

eventually stored by Appellant misses the point. Mrs. Henderson testified that she

saw Appellant and her husband with the stolen property physically in their hands

as they moved it into the house. Joint possession of stolen property by multiple

defendants is not a bar to the Hardesty inference. Jones v. State, 899 S.W.2d 25.

(Tex. App. – Tyler 1995). In Jones, the court distinguishes between a case in which

the stolen property was found, not on the accused’s person, but in a remote

location –a common attic – to which others might have had access. In Jones,

however, the stolen property was found with him, in plain sight, though others

were present.

                             PRAYER FOR RELIEF

The State requests that this Court AFFIRM Appellant’s conviction by the trial

court.

                                    By:/s/ Nicholas C. Harrison
                                       Nicholas C. Harrison
                                       Assistant District Attorney
                                       State Bar No 24062768
                                       P.O. Box 882

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                                      Sulphur Springs, Texas 75483
                                      (903) 885-0641




                         CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the above and foregoing

instrument was forwarded to counsel for Appellant, Wade Forsman, on this the 26th

day of February, 2015.

                                   By:/s/ Nicholas C. Harrison
                                      Nicholas C. Harrison
                                      Assistant District Attorney




                         CERTIFICATE OF WORD COUNT

      I certify that this document contains 1,829 words according to the counting

tool in the program used to generate this document.

                                   By:/s/ Nicholas C. Harrison
                                      Nicholas C. Harrison
                                      Assistant District Attorney


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