                                   NO. 07-09-0055-CR

                              IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                OCTOBER 13, 2009
                         ______________________________

                             CAROLINA FUENTES TENORIO,

                                                              Appellant

                                            v.

                                THE STATE OF TEXAS,

                                                     Appellee
                       _________________________________

          FROM THE 222nd DISTRICT COURT OF DEAF SMITH COUNTY;

                 NO. CR-07L-205; HON. ROLAND SAUL, PRESIDING
                       _______________________________

                                     Opinion
                         _______________________________

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

      Carolina Fuentes Tenorio (appellant) attempts to overturn her conviction for theft

of property valued between $1500 and $20,000 because no evidence purportedly supports

her conviction. We affirm.

      The record illustrates that appellant and two other women were arrested for stealing

goods from Walmart. Their modus operandi involved entering the store, finding an item

contained in a large box, removing the item from the box, substituting other items for that
removed, re-sealing the box, paying the cashier for the item previously removed, and then

leaving the store with the other goods hidden in the box but for which she did not pay. No

one disputes the cost of the substituted items at bar equaled $3036.34. That appellant

paid something to the Walmart cashier is also undisputed. Nowhere in the record does the

amount actually paid to the cashier appear. And, because the amount is not so reflected

in the record and because she was allegedly entitled to an offset equal to that unknown

amount, appellant believes that the evidence was legally insufficient to establish that the

theft encompassed property valued between $1500 to $20,000.                We overrule the

contention for several reasons.

       First, and as previously mentioned, the record illustrates that the items appellant

placed in the box totaled $3036.34. That amount falls between $1500 and $20,000.

Consequently there is some evidence of record upon which a rational jury could conclude,

beyond reasonable doubt, that appellant stole items valued between $1500 and $20,000.

       Second, we cannot hold that the $3036.34 sum appearing of record is meaningless

simply because the State did not present evidence of the amount appellant handed the

cashier. This is so due to various passages contained in §31.08(d) of the Texas Penal

Code. According to that statute,

       [i]f the actor proves by a preponderance of the evidence that he gave
       consideration for or had a legal interest in the property or service stolen, the
       amount of the consideration or the value of the interest so proven shall be
       deducted from the value of the property or service ascertained under
       Subsection (a), (b), or (c) to determine value for purposes of this chapter.

TEX . PENAL CODE ANN . §31.08(d) (Vernon 2003) (emphasis added).

Furthermore, the passages we deem of import here are those which we italicized. The one

stating “if the actor proves” obviously places upon the thief (i.e. the defendant) the burden

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to establish that some “consideration” was given. Admittedly, it alone does not explain the

extent of the defendant’s burden. But, we are prohibited from plucking words from the

statute and reading them in a vacuum. Rather, authority obligates us to read and interpret

the statute as a whole. Ramos v. State, 264 S.W.3d 743, 750 (Tex. App.–Houston [1st

Dist.] 2008, no pet.). And, in doing so here, we see that the legislature followed the

passage “if the actor proves . . . he gave consideration” with another stating that “the

amount of consideration . . . so proven shall be deducted.” When read together, one

cannot but reasonably deduce that the latter serves as a modifier of the former. Simply

put, the words “amount . . . so proven” define what the legislature intended for the “actor”

to prove, and that was (and is) the amount or value of the consideration given.1 So, the

actor’s burden is twofold. Not only must he proffer some evidence that consideration was

given but also some evidence of the amount or value of that consideration. And, we see

nothing in the statute which permits a court to shift that burden to the State.

        Thus, appellant was obligated to proffer evidence illustrating how much

consideration she gave to the Walmart cashier, not the State as she contends. Since she

failed in that regard, no offset existed that could be used to illustrate that the items stolen

had a value other than $3036.34 or to otherwise place the value of the stolen items outside

the $1500 to $20,000 range.




        1
          Appellant adm its as m uch in her reply brief when she wrote: “[t]he State is correct that, under the
letter of the law, [appellant] was required to produce som e evidence of the amount of consideration.”
(Em phasis added).

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      Consequently, we affirm the judgment of the trial court.



                                                     Brian Quinn
                                                     Chief Justice

Publish.




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