                                   NO. 07-01-0417-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL C

                                      APRIL 4, 2002

                          ______________________________


                            ADEDAYO TAIWO, APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

  FROM THE COUNTY CRIMINAL COURT AT LAW NO. 14 OF HARRIS COUNTY;

                 NO. 1057017; HONORABLE GERALD PAYTE, JUDGE

                         _______________________________

Before QUINN and REAVIS and JOHNSON, JJ.


       Pursuant to a plea of not guilty, appellant Adedayo Taiwo was convicted of

misdemeanor theft and punishment was assessed by the court at 180 days confinement,

suspended for two years, and a $500 fine. Presenting three points of error on appeal,

appellant asserts (1) the trial court abused its discretion in failing to hold an evidentiary

hearing on her motion for new trial because the motion raised matters that were not
determinable by the record; (2) the trial court erred in denying her motion for continuance;

and (3) the verdict is so contrary to the overwhelming weight of the evidence as to be

clearly wrong and unjust and therefore factually insufficient. Based upon the rationale

expressed herein, we affirm.


       The State challenges all factual assertions made by appellant in her brief. Thus,

our recitation of the facts is based on an independent review of the record. On a Sunday

afternoon just prior to closing, appellant, a sales associate at a department store, rang up

merchandise for two women. Helen Palmer, the sales manager, had noticed that the two

women had numerous articles of clothing from different departments including very

expensive designer clothes. She observed appellant ring up the sale for a brief period and

walked to another department before appellant completed the sale.            When Palmer

returned to appellant’s register, the two women had left and Palmer asked to see the

receipt. The receipt was for $245.86 for six items. In disbelief, Palmer questioned

appellant and appellant immediately caught up with the women and asked to check their

bags for a possible mistake. Palmer contacted another manager, William Flinn, to assist

in comparing the receipt with the items in the bags. The security guard had gone home

sick earlier that afternoon and the department store did not have security cameras. The

merchandise was counted and the two women were in possession of a total of 18 items

valued at $1,400.97. According to the evidence, at first the two women were embarrassed

but later became angry and demanded a refund. A refund was made to their credit card


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and the women were permitted to leave. Police were called and appellant was charged

with theft.




       By her first point of error, appellant contends the trial court abused its discretion in

failing to hold an evidentiary hearing on her motion for new trial because the motion raised

matters that were not determinable by the record. We disagree. A defendant does not

have an absolute right to a hearing on a motion for new trial. Reyes v. State, 849 S.W.2d

812, 815 (Tex.Cr.App. 1993). However, when a motion for new trial presents matters that

are not determinable from the record, the trial court abuses its discretion by failing to hold

a hearing; conversely, if the motion presents matters that are determinable from the

record, the trial court does not abuse its discretion by failing to conduct a hearing. Id. at

816.


       Prerequisite to a hearing, a movant must show that the motion was presented to the

trial court within ten days of its filing. Tex. R. App. P. 21.6. Presentment may be shown

by actual delivery of the motion to the trial court or otherwise bringing the motion to the trial

court’s attention.   See Carranza v. State, 960 S.W.2d 76, 79 (Tex.Cr.App. 1998)

(interpreting former Rule 31(c)(1) of the Texas Rules of Appellate Procedure). Appellant’s

motion was filed on June 18, 2001, and by affidavit accompanying the motion, counsel

certified that she presented the motion to the trial court on June 19, 2001. The motion was


                                               3
overruled by operation of law.         The State argues that counsel’s “Certificate of

Presentation” is insufficient evidence to indicate the motion was presented to the trial court

and that there is no evidence in the record to show the motion was brought to the trial

court’s attention.


       A “Certification of Service & Presentment” included in a preprinted motion for new

trial and signed by counsel standing alone was found to be insufficient evidence of

presentment in Owens v. State, 832 S.W.2d 109, 111-12 (Tex.App.–Dallas 1992, no pet.).

See also Price v. State, 840 S.W.2d 694, 697 (Tex.App.–Corpus Christi 1992, pet. ref’d)

(holding that the trial court did not err in failing to conduct a hearing where there was no

evidence that the defendant had timely presented his motion to the trial court). Counsel

must take more affirmative steps to show that the trial court had actual notice of a

defendant’s desire to have a hearing on a motion for new trial, i.e., a proposed order

attached to the motion setting a date for a hearing or a notation anywhere in the record

that the trial court was put on notice. Owens, 832 S.W.2d at 112. The mere filing of a

motion does not constitute evidence of its presentment to the trial court. Id.


       In the underlying case, appellant’s motion for new trial was filed on June 18, 2001.

It contains a “Certification of Presentation” wherein counsel certifies that she presented

the motion to the trial court on the day after the motion was filed. The motion presupposes

that counsel would present the motion to the trial court the following day. A proposed

order setting a hearing date attached to the motion is blank and there are no notations in

                                              4
the record indicating the motion was brought to the trial court’s attention. We agree with

the State that counsel’s certification of presentment standing alone is insufficient to show

that appellant satisfied her burden to timely present her motion for new trial as required

by Rule 21.6 of the Texas Rules of Appellate Procedure. Thus, we conclude the trial court

did not abuse its discretion in failing to hold an evidentiary hearing on appellant’s motion

for new trial. Point of error one is overruled.


       By her second point of error, appellant contends the trial court erred in denying her

motion for continuance presented at the time of trial.       We disagree. A motion for

continuance is regulated by statute and must be in writing, sworn to, and is addressed to

the discretion of the trial court. Tex. Code Crim. Proc. Ann. arts. 29.03 and 29.08 (Vernon

1989); see also Wright v. State, 28 S.W.3d 526, 532 (Tex.Cr.App. 2000); Dixon v. State,

64 S.W.3d 469, 472-73 (Tex.App.–Amarillo 2001, no pet.); Hubbard v. State, 912 S.W.2d

842, 843 (Tex.App.–Houston [14th Dist.] 1995, no pet.). The record does not contain a

sworn written motion. During pretrial proceedings held on May 16, 2001, counsel for

appellant made an oral motion for continuance requesting additional time to prepare

because he had been substituted as counsel on May 8, 2001.


       A trial court has equitable power to grant an oral motion for continuance. Darty v.

State, 149 Tex. Crim. 256, 193 S.W.2d 195 (1946). However, counsel did not request the

trial court to exercise its equitable power nor does appellant argue on appeal that her

motion should have been granted on equitable grounds. Thus, her contention is not

                                             5
preserved for review. Tex. R. App. P. 33.1(a)(1)(A); see generally, Dewberry v. State, 4

S.W.3d 735, 755 (Tex.Cr.App. 1999) (holding that a motion for continuance not in writing

and not sworn preserves nothing for review). Point of error two is overruled.


       By her final point, appellant contends the evidence is factually insufficient to support

the verdict. We disagree. A factual sufficiency review begins with the presumption that

the evidence supporting the conviction is legally sufficient. Clewis v. State, 922 S.W.2d

126, 134 (Tex.Cr.App. 1996).        In conducting a factual sufficiency review we must

determine whether a neutral review of all the evidence, both for and against the finding,

demonstrates that the proof of guilt is so obviously weak as to undermine confidence in

the fact finder’s determination, or the proof of guilt, although adequate if taken alone, is

greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App.

2000) (adopting complete civil factual sufficiency formulation); see also King v. State, 29

S.W.3d 556, 563 (Tex.Cr.App. 2000). It is the exclusive province of the fact finder to

determine the credibility of the witnesses and the weight to be given their testimony.

Johnson v. State, 571 S.W.2d 170, 173 (Tex.Cr.App. 1978); Armstrong v. State, 958

S.W.2d 278, 284 (Tex.App.--Amarillo 1997, pet. ref'd). Accordingly, we will reverse the fact

finder’s determination only if a manifest injustice has occurred. Johnson, 23 S.W.3d at 12.

In conducting this analysis, we may disagree with the jury’s determination, even if

probative evidence supports the verdict, but must avoid substituting our judgment for that

of the fact finder. See Santellan v. State, 939 S.W.2d 155, 164 (Tex.Cr.App. 1997).


                                              6
       Theft is the unlawful appropriation of property with the intent to deprive the owner

of the property. Tex. Pen. Code Ann. § 31.03(a) (Vernon Supp. 2002). Among other

terms, the charge instructed the jury as to the definition of the term “appropriate” and

appellant does not present any complaint about the charge or subject definitions. Among

other direct evidence, Palmer testified that as sales manager she was responsible for

inventory, scheduling, and other duties in her department. She also testified that the year-

end inventory reflected a shortage of $800,000 for the entire store which prompted

department managers to investigate their departments and according to Palmer, her

investigation lead her to focus on appellant.


       According to Palmer, shortly before closing on April 1, 2001, she observed two

female customers with children walking through the store and carrying expensive

merchandise from other departments to appellant’s register. At that time she estimated

that the customers presented approximately 20 items. While appellant was checking out

the items presented by the two women, Palmer went to appellant’s register to observe the

transaction for ten minutes and concluded that appellant appeared to be nervous. While

appellant continued the transaction, Palmer walked to another department for what she

believed to be 20 seconds. Upon returning to appellant’s register, she was surprised to

discover that the transaction had been concluded. When Palmer discovered that the

receipt showed that the sale consisted of only six items at a cost of $245.86, she stated,

“I can’t believe this. This is not true.”


                                             7
       Appellant responded to Palmer’s disbelief by locating the two women on their way

to the escalator and explained that she may have made a mistake. Palmer testified that

the women had three regular store bags which was unusual because most customers

preferred that certain items remain on hangers and she also requested to compare their

receipt with the items in the bags. According to Palmer, before she inspected the bags,

she contacted another manager, William Flinn for his assistance. Upon his arrival, the

bags were emptied onto a counter and 18 items were counted. When the two women

became angry they were given a refund and allowed to leave. The police were called and

appellant was accused of theft. Palmer testified that as store manager she had the right

of possession to the items and that she had not given permission to appellant to give the

items away to the two customers.


        Appellant was the only witness for the defense and denied giving any of the

additional 12 items to the two women and in other instances her testimony conflicts with

Palmer’s account of the events. Appellant claims that when the two women came to her

register to check out they had only six items which she placed into one shopping bag and

that the women had another bag with them. According to appellant, while she was ringing

up the sale, Palmer and another associate were placing items on the back counter that had

been left about the store or in fitting rooms. Appellant also testified that when Palmer left

her department during the transaction she was gone three to four minutes and not just 20

seconds. Appellant also disputed Palmer’s testimony that she told the customers she


                                             8
might have made a mistake during the transaction. When Palmer asked to inspect the

customers’ bags, she emptied the contents onto the back counter with the other items

already there. Appellant believed the six items she sold were mixed in with the other items

that were already on the back counter. Although Palmer testified that she did not inspect

the bags until Flinn arrived, appellant testified that she emptied the bags prior to his

arrival. Flinn’s testimony, however, corroborates Palmer’s testimony that she waited for

him to arrive before emptying the contents of the three bags to compare with the receipt

that the two women had produced.


          Appellant focuses her argument on the absence of direct evidence on certain

points.     Additionally appellant’s testimony conflicted on other points with Palmer’s.

However, it is the province of the jury to resolve conflicts or inconsistencies in the

evidence. Bowden v. State, 628 S.W.2d 782, 784 (Tex.Cr.App. 1982); Hitt v. State, 53

S.W.3d 697, 709 (Tex.App.–Austin 2001, pet. ref’d). Additionally, as the judge of the

credibility of the witnesses, the jury can believe all, some, or none of the testimony.

Chambers v. State, 805 S.W.2d 459, 461 (Tex.Cr.App. 1991). Moreover, circumstantial

evidence, alone, may be sufficient to support the jury verdict. Kutzner v. State, 994

S.W.2d 180, 184 (Tex. Cr.App. 1999). Considering the evidence, we conclude it is

factually sufficient to support the verdict and is not so weak as to be clearly wrong and

manifestly unjust. Johnson, 23 S.W.3d at 11. Appellant’s third point of error is overruled.


          Accordingly, the judgment of the trial court is affirmed.

                                                9
                       Don H. Reavis
                         Justice


Do not publish.




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