
                           NO. 07-10-0257-CR

                        IN THE COURT OF APPEALS

                   FOR THE SEVENTH DISTRICT OF TEXAS

                              AT AMARILLO

                                PANEL C

                              JUNE 1, 2011








                     OLIVIA REYES TIENDA, APPELLANT


                                   v.


                      THE STATE OF TEXAS, APPELLEE





            FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

          NO. 2009-422,182; HONORABLE CECIL G. PURYEAR, JUDGE





Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                           MEMORANDUM OPINION


      Following a jury  trial,  Appellant,  Olivia  Reyes  Tienda,  was
convicted of credit card abuse,[1] a state jail felony,  and  sentenced
to two years confinement.  In a single  issue,  Appellant  asserts  the
trial  court  erred  in  admitting  her  written   statement   to   law
enforcement into evidence at trial  without  redacting  two  statements
pursuant to Rule 403 of the Texas Rules of Evidence.[2]  We affirm.

                               Background

      In  January  2009,  a  Lubbock  County  Grand  Jury  returned  an
indictment alleging that, on or  about  November  20,  2008,  Appellant
presented an American Express credit  card  to  David  Miller,[3]  with
intent to fraudulently obtain a benefit, knowing that the  credit  card
had not been issued to her, and with knowledge that the card was  being
used without the  effective  consent  of  the  cardholder,  Martha  Van
Zandt.

      In a two day trial, the  jury  heard  evidence  from  two  Target
employees, Van Zandt, and three police officers.  The  evidence  showed
that, on November 20, 2008, Appellant attempted to purchase  more  than
$3,600 worth of electronic goods at Target using  an  American  Express
credit card issued to Van Zandt.   When  the  card  was  declined,  the
cashier sought assistance from  Jason  Vasquez,  a  Target  supervisor.
Vasquez continued to swipe the card and it continued  to  be  declined.
As he was doing so,  persons  accompanying  Appellant  took  two  carts
loaded with electronic goods to their car to  load.   Vasquez  informed
Appellant the goods would have to be returned and he then asked  Miller
to assist him.

      Miller proceeded to the front of the store and observed two  cars
pull up to the store's entrance.  The occupants got  out  of  the  cars
and began unloading  the  merchandise  into  carts.   Miller  took  the
merchandise into the store and later determined that  electronic  goods
worth approximately $390 were  missing.   The  entire  transaction  was
videotaped and Appellant was identified by  several  witnesses  as  the
person attempting to use the American Express credit card.

      In November 2008, Van  Zandt,  age  seventy-seven,  had  recently
undergone hip surgery.  She sought a housekeeper  and  found  Appellant
through the newspaper.  Thereafter, Appellant cleaned her  house  three
or four times.  When a Target representative called asking whether  she
had given permission to anyone  to  use  her  American  Express  credit
card, she told them, "No."  She testified that Appellant was  the  only
one, other than her husband, to have access to her  bedroom  where  she
kept the credit card in her dresser drawer.

       During  the  testimony  of  Detective  Tammie   McDonald,   over
Appellant's  objection,  the  State  introduced   Appellant's   written
statement given on December 10, 2008.  Specifically,  Appellant  sought
to redact two statements:  "I know with my background I may not have  a
leg to stand on, but I am innocent," and "People  have  not  judged  me
for my background."  Her attorney argued  that  the  word  "background"
injected  "some  possibility  of  bad  conduct  or  misconduct  or   an
implication of something," and sought  redaction  under  Rules  404(b),
402 and 401 of the Texas Rules of Evidence.  The trial court  overruled
Appellant's objection and admitted the entire statement.

      Thereafter, the jury convicted  Appellant  and  the  trial  court
sentenced her to two years confinement.  This appeal followed.

                               Discussion

      Appellant asserts the trial court  erred  because  it  failed  to
redact portions of her written statement  to  law  enforcement  because
the statements "injected some possibility of bad conduct or  misconduct
or an implication  of  something."   Further,  Appellant  contends  the
statements were irrelevant and any probative  value  was  substantially
outweighed by the danger of  unfair  prejudice  and  confusion  of  the
issues.[4]

      To obtain reversal of a conviction based on an alleged  error  in
the admission of evidence,  an  appellant  must  show  that  the  trial
court's ruling was in error and that the error  harmed  the  appellant,
i.e., that it affected his or her  substantial  rights.   See  Tex.  R.
App. P. 44.2(b); Ladd  v.  State,  3  S.W.3d  547,  568  (Tex.Crim.App.
1999), cert. denied, 529 U.S. 1070, 120 S.Ct.  1680,  146  L.Ed.2d  487
(2000).  In assessing harm, an appellate court considers everything  in
the record, including testimonial and physical  evidence  admitted  for
the jury's consideration, the nature of  the  evidence  supporting  the
verdict, and the character of the alleged error and  how  it  might  be
considered in connection with other evidence in the case.   Motilla  v.
State, 78 S.W.3d 352,  355  (Tex.Crim.App.  2002)  (citing  Morales  v.
State, 32 S.W.3d 862, 867 (Tex.Crim.App. 2000)).

      Having reviewed the entire record and summarized the evidence  at
trial above, we are confident that even if the trial court's  admission
of the statements was error, the admission of  that  evidence  did  not
have a substantial or injurious influence on  the  jury's  decision  to
convict her of credit  card  abuse.   See  Tex.  R.  App.  P.  44.2(b);
Solomon v. State, 49 S.W.3d 356, 365  (Tex.Crim.App.  2001)  ("We  have
determined that substantial rights are not affected  by  the  erroneous
admission of evidence if  the  appellate  court,  after  examining  the
record as a whole, has fair assurance that the error did not  influence
the jury, or had but a slight effect.")  See also King  v.  State,  953
S.W.2d  266,  271  (Tex.Crim.App.  1997)  (disregarding  the  erroneous
admission of evidence if that evidence did not have  a  substantial  or
injurious influence on the jury's decision).  Accordingly,  Appellant's
single issue is overruled.

                               Conclusion

      The trial court's judgment is affirmed.



                                        Patrick A. Pirtle
                                              Justice



Do not publish.

-----------------------
[1]See Tex. Penal Code Ann. § 32.31 (West 2003).

[2]In this proceeding, the State did  not  file  a  brief  nor  request
additional  time  to  do  so.   Accordingly,  we  have   conducted   an
independent analysis of the  merits  of  Appellant's  claim  of  error,
limited to the arguments raised at trial by the State, to determine  if
there  was  error.   See  Little  v.  State,  246  S.W.3d  391,  397-98
(Tex.App.--Amarillo 2008, no  pet.).   The  decision  to  independently
review the merits of Appellant's  issue  should  not  be  construed  as
approval of the State's failure to file a brief.  See Tex.  Code  Crim.
Proc. Ann.  art.  2.01  (West  2005)  ("Each  district  attorney  shall
represent the State in all criminal cases in  the  district  courts  of
his district and appeals therefrom . . . .)

[3]Miller testified that he was  the  asset  protection  manager  at  a
Target store where the events the subject of this case occurred.

[4]Although Appellant's objection at trial  was  limited  to  relevancy
under Rules 401 and 402 and character  evidence  generally  under  Rule
404, in the interest of justice, we will consider Appellant's  argument
that, although the evidence  may  have  been  relevant,  its  probative
value was substantially outweighed by the danger  of  unfair  prejudice
under Rule 403.  See Tex. R. Evid. 401, 402, 403, 404.



