

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.  


