                                                                                                       ACCEPTED
                                                                                                  13-14-00498-CR
        FILED                                                                       THIRTEENTH COURT OF APPEALS
IN THE 13TH COURT OF APPEALS                                                              CORPUS CHRISTI, TEXAS
        CORPUS CHRISTI                                                                       3/25/2015 2:23:14 PM
                                                                                                DORIAN RAMIREZ
          3/25/15                                                                                          CLERK

DORIAN E. RAMIREZ, CLERK
                                           No. 13-14-498-CR
BY DTello

                                     IN THE COURT OF APPEALS RECEIVED IN
                                                            13th COURT OF APPEALS
                               FOR THE THIRTEENTH DISTRICT OF TEXAS
                                                         CORPUS  CHRISTI/EDINBURG, TEXAS
                                         AT CORPUS CHRISTI   3/25/2015 2:23:14 PM
                                                                      DORIAN E. RAMIREZ
                                                                           Clerk

                                        GILDA HERNANDEZ,
                                           APPELLANT,

                                                   v.

                                      THE STATE OF TEXAS,
                                           APPELLEE.


                          ON APPEAL FROM COUNTY COURT AT LAW # 2
                                  NUECES COUNTY, TEXAS

                                      BRIEF FOR THE STATE


                                              Douglas K. Norman
                                              State Bar No. 15078900
                                              Assistant District Attorney
                                              105th Judicial District of Texas
                                              901 Leopard, Room 206
                                              Corpus Christi, Texas 78401
                                              (361) 888-0410
                                              (361) 888-0399 (fax)
                                              douglas.norman@co.nueces.tx.us

                                              Attorney for Appellee


                                ORAL ARGUMENT IS NOT REQUESTED
                                     TABLE OF CONTENTS

INDEX OF AUTHORITIES .......................................................................... ii

SUMMARY OF THE ARGUMENT ..............................................................1

ARGUMENT ...................................................................................................1

Reply Point
The evidence was legally sufficient to support the theft conviction. .........1

         I. Statement of Fact. ............................................................................1
         II. Standard of Review. .......................................................................3
         III. Application to the Present Theft Conviction..............................4

PRAYER ..........................................................................................................7

RULE 9.4 (i) CERTIFICATION .....................................................................8

CERTIFICATE OF SERVICE ........................................................................8
                                    INDEX OF AUTHORITIES

                                                       Cases

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010). .............................3

Dyer v. MacDougall, 201 F.2d 265 (2nd Cir. 1952). ......................................6

Fuentes v. State, 991 S.W.2d 267 (Tex. Crim. App. 1999). ............................4

Gear v. State, 340 S.W.3d 743 (Tex. Crim. App. 2011). ................................6

United States v. Heath, 970 F.2d 1397 (5th Cir. 1992). ..................................6

Hill v. State, 633 S.W.2d 520 (Tex. Crim. App. 1981). ............................. 4, 5

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979). ......................... 3, 4

Jones v. State, 900 S.W.2d 392 (Tex. App.—San Antonio 1995,
pet. ref’d)..........................................................................................................5

Obigbo v. State, 6 S.W.3d 299 (Tex. App.—Dallas 1999, no pet.). ...............5

Padilla v. State, 326 S.W.3d 195 (Tex. Crim. App. 2010)..................... 3, 4, 6

Roberson v. State, 821 S.W.2d 446 (Tex. App.—Corpus Christi 1991, pet.
ref'd). ................................................................................................................5

Saenz v. State, 976 S.W.2d 314 (Tex. App.—Corpus Christi 1998,
no pet.). ............................................................................................................6

Sharp v. State, 707 S.W.2d 611 (Tex. Crim. App. 1986). ...............................4

Turro v. State, 867 S.W.2d 43 (Tex. Crim. App. 1993). .................................4

Wawrykow v. State, 866 S.W.2d 87 (Tex. App.--Beaumont 1993, pet ref'd). 6

                                              Statutes & Rules
Tex. Penal Code § 7.02. ...................................................................................3
                                                           ii
Tex. Penal Code § 31.01. .................................................................................4

Tex. Penal Code § 31.03. .................................................................................4




                                                    iii
                             NO. 13-14-498-CR

GILDA HERNANDEZ,                       §    COURT OF APPEALS
         Appellant,                    §
                                       §
V.                                     §    FOR THE THIRTEENTH
                                       §
THE STATE OF TEXAS,                    §
         Appellee.                     §    DISTRICT OF TEXAS

                         BRIEF FOR THE STATE

TO THE HONORABLE COURT OF APPEALS:

                   SUMMARY OF THE ARGUMENT

      Hernandez’s active participation in placing items of merchandise in

Esparza’s bag while shopping in Hobby Lobby sufficiently showed an

exercise of control and an intent to deprive the owner of the items in

question to support her theft conviction.

                               ARGUMENT

                              Reply Point
      The evidence was legally sufficient to support the theft conviction.

                            I. Statement of Fact.

      Gilda Hernandez was charged by information with theft of property

valued at more than $50 from Hobby Lobby. (CR p. 5)

      Police Officer Javier Cantu testified that Jasmine Esparza had been

detained in the office at the Hobby Lobby store and was found to have
property in her purse worth over $200 belonging to Hobby Lobby. (RR vol.

2, p. 76)

      Hobby Lobby store manager Andy Moreno testified that Hernandez

and Esparza were both selecting merchandise randomly and placing it in

Esparza’s bag (RR vol. 2, p. 83), and that Hernandez was side-by-side with

Esparza and was herself placing items in Esparza’s bag. (RR vol. 2, p. 92)

Specifically, Hernandez was taking down merchandize, including jewelry

and children’s clothing, which was later recovered from Esparza’s bag. (RR

vol. 2, pp. 84-85)   Esparza then left the store without paying for the

merchandise, but was caught and escorted back into the store. (RR vol. 2, p.

86)

      Gilda Hernandez testified that she went to Hobby Lobby with

Esparza, who was a friend of her daughter. (RR vol. 2, p. 103) Hernandez

specifically denied that she intended to take anything from Hobby Lobby.

(RR vol. 2, pp. 106, 111) Hernandez claimed that, at some point, she found

out that Esparza was “taking things,” but she denied helping Esparza take

any items or picking out any items for Esparza to place in her bag. (RR vol.

2, pp. 106, 109) Hernandez also denied that she was walking around with

Esparza in Hobby Lobby. (RR vol. 2, p. 120)




                                     2
      The Jury Charge submitted the theory of party liability to the jury,

instructing them that Hernandez was criminally responsible “if, acting with

intent to promote or assist the commission of the offense, she solicit[ed],

encourage[d], direct[ed], aid[ed], or attempt[ed] to aid [another] person to

commit the offense.” (CR pp. 9, 11) See Tex. Penal Code § 7.02 (a) (2).

      Hernandez was found guilty by a jury and was sentenced by the trial

court to 25 days in jail. (CR p. 18)

                          II. Standard of Review.

      In order to determine if the evidence is legally sufficient, the appellate

court reviews all of the evidence in the light most favorable to the verdict

and determines whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781 (1979). In Brooks v. State, 323

S.W.3d 893 (Tex. Crim. App. 2010), the Court of Criminal Appeals

abandoned factual sufficiency review and determined that the Jackson v.

Virginia legal-sufficiency standard is the only standard that a reviewing

court should apply in determining whether the evidence is sufficient. This

“familiar standard gives full play to the responsibility of the trier of fact

fairly to resolve conflicts in the testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts.” Padilla v.


                                       3
State, 326 S.W.3d 195, 200 (Tex. Crim. App. 2010) (quoting Jackson, 443

U.S. at 319).

      The trier of fact is the sole judge of the credibility of the witnesses and

the strength of the evidence, Fuentes v. State, 991 S.W.2d 267, 271 (Tex.

Crim. App. 1999), and, as such, may choose to believe or disbelieve any

portion of the witnesses' testimony. Sharp v. State, 707 S.W.2d 611, 614

(Tex. Crim. App. 1986).         When faced with conflicting evidence, the

reviewing court should presume the trier of fact resolved conflicts in favor

of the prevailing party. Padilla, 326 S.W.3d at 200; Turro v. State, 867

S.W.2d 43, 47 (Tex. Crim. App. 1993).

                III. Application to the Present Theft Conviction.

      A person commits theft if he “unlawfully appropriates property with

intent to deprive the owner of property.” Tex. Penal Code § 31.03 (a). To

“appropriate” is defined as “to acquire or otherwise exercise control over

property other than real property.” Tex. Penal Code § 31.01(4)(B).

      In the shoplifting context, the Court of Criminal Appeals has stated

that “it is not essential that the property be taken off the premises; it is

instead only essential that the evidence show an ‘exercise of control over the

property,’ coupled with an ‘intent to deprive the owner of the property.’”

Hill v. State, 633 S.W.2d 520, 521 (Tex. Crim. App. 1981). In Hill, the


                                        4
Court found sufficient evidence of both exercise of control and intent to

deprive in the defendant’s act of placing an item of merchandise under his

shirt. Id.; see also Roberson v. State, 821 S.W.2d 446, 448 (Tex. App.—

Corpus Christi 1991, pet. ref'd) (evidence sufficient to show appropriation

where defendant removed tags from shirt and concealed it in a bag).

      In the present case, Moreno’s testimony clearly shows that Hernandez

was assisting Esparza to obtain merchandize and place it inside her bag,

which sufficiently shows both an exercise of control and an intent to deprive.

Although Hernandez and Esparza might have had the right to carry the

merchandise in question or place it in a shopping cart or basket before taking

it to the checkout, the act of placing it inside a bag, like placing merchandise

under a shirt in Hill, goes beyond what is reasonably expected and

sufficiently shows both an exercise of control and an intent to deprive

Hoddy Lobby of the merchandise in question.

      As with any other question of circumstantial evidence and inference,

the fact finder may use common sense and apply common knowledge,

observation, and experience gained in the ordinary affairs of life when

giving affect to the inferences that may reasonably be drawn from the

evidence. Obigbo v. State, 6 S.W.3d 299, 306 (Tex. App.—Dallas 1999, no

pet.); Jones v. State, 900 S.W.2d 392, 399 (Tex. App.—San Antonio 1995,


                                       5
pet. ref’d); Wawrykow v. State, 866 S.W.2d 87, 88-89 (Tex. App.--

Beaumont 1993, pet ref'd) (citing United States v. Heath, 970 F.2d 1397,

1402 (5th Cir. 1992)); see also Saenz v. State, 976 S.W.2d 314, 322 (Tex.

App.—Corpus Christi 1998, no pet.) (“Jurors are expected to draw upon

their own experiences and common knowledge and apply them to the facts

at hand.”).

      The reasonable inference here is that Hernandez and Esparza were

shoplifting.   Esparza’s act of leaving the store without paying for the

merchandise in question only confirms the reliability of this inference.

      In addition, the fact finder may consider a defendant's implausible and

inconsistent statements as affirmative evidence of guilt. See Gear v. State,

340 S.W.3d 743, 747 (Tex. Crim. App. 2011); Padilla v. State, 326 S.W.3d

195, 201 (Tex. Crim. App. 2010). As the court of criminal appeals has

noted, “the carriage, behavior, bearing, manner and appearance of a

witness—in short, his ‘demeanor’—is a part of the evidence.” Padilla, 326

S.W.3d at 201 (quoting Dyer v. MacDougall, 201 F.2d 265, 268–69 (2nd

Cir. 1952)).

      In the present case, assuming that the jury believed Moreno’s

testimony that Hernandez was with Esparza in the store and actively helping




                                      6
her to put merchandise in her bag, Hernandez’s untruthful denials provide

additional affirmative evidence of her guilt.

      The evidence was legally sufficient to support the theft conviction and

Hernandez’s issue on appeal should be overruled.

                                  PRAYER

      For the foregoing reasons, the State respectfully requests that the

judgment of the trial court be affirmed.


                                 Respectfully submitted,
                                 /s/Douglas K. Norman
                                 ___________________
                                 Douglas K. Norman
                                 State Bar No. 15078900
                                 Assistant District Attorney
                                 105th Judicial District of Texas
                                 901 Leopard, Room 206
                                 Corpus Christi, Texas 78401
                                 (361) 888-0410
                                 (361) 888-0399 (fax)
                                 douglas.norman@co.nueces.tx.us




                                       7
                      RULE 9.4 (i) CERTIFICATION

      In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I

certify that the number of words in this brief, excluding those matters listed

in Rule 9.4(i)(1), is 1,262.

                                /s/Douglas K. Norman
                                ___________________
                                Douglas K. Norman



                       CERTIFICATE OF SERVICE

      This is to certify that a copy of this brief was e-mailed on March 25,

2015, to Appellant’s attorney, Mr. Eric Flores.



                                /s/Douglas K. Norman
                                ___________________
                                Douglas K. Norman




                                      8
