                        PD-1511-15                                                  PD-1511-15
                                                                 COURT OF CRIMINAL APPEALS
                                                                                 AUSTIN, TEXAS
                                                              Transmitted 11/23/2015 12:00:00 AM
                                                                Accepted 11/23/2015 11:15:40 AM
                                                                                  ABEL ACOSTA
                                               Oral   Argument Requested                  CLERK

           NO. ______________________________________

          IN THE TEXAS COURT OF CRIMINAL APPEALS

                           AUSTIN, TEXAS



                    BRANDY MECHELLE HARRIS,
                                  Appellant

                                    v.

                      THE STATE OF TEXAS,
                                    Appellee


               On Petition for Discretionary Review from
               The Opinion in Cause No. 05-14-01228-CR
             In the Court of Appeals, Fifth District of Texas


    APPELLANT’S PETITION FOR DISCRETIONARY REVIEW


                            John D. Nation
                            SBN: 14819700
                         Attorney for Appellant

                       4925 Greenville, Suite 200
                          Dallas, Texas 75206
                             214-800-5160
                           214-800-5161 (fax)
                       nationlawfirm@gmail.com




November 23, 2015
                 IDENTITY OF PARTIES AND COUNSEL

Appellant:

Brandy Mechelle Harris

Trial and Appellate Counsel:

Troy Burleson, Trial
2591 Dallas Pkwy, Suite 207, Frisco, Texas 75034
John D. Nation, Appeal, 4925 Greenville, Suite 200, Dallas, Texas 75206

Appellee:

The State of Texas

Trial Counsel:

Austin Ortiz, Assistant District Attorney
Rebecca Ott, Assistant District Attorney
Frank Crowley Courts Bldg.
133 N. Riverfront
Dallas, Texas 75207

Trial Court:

Criminal District Court No. 6 of Dallas County:

Hon. Jeannine Howard, Presiding
Frank Crowley Courts Building
133 N. Riverfront
Dallas, Texas 75207




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                 Appellant’s Petition for Discretionary Review
                                  Page 2 of 17
                                       TABLE OF CONTENTS


IDENTITY OF PARTIES AND COUNSEL ............................................... 2

LIST OF AUTHORITIES ............................................................................. 4

STATEMENT OF THE CASE ..................................................................... 5

STATEMENT REGARDING ORAL ARGUMENT ................................. 6

FACT STATEMENT..................................................................................... 6

STATEMENT OF PROCEDURAL HISTORY ......................................... 9

ARGUMENT .................................................................................................. 9

Ground for Review No. One: ........................................................................ 9

The court of appeals erred in holding that it could not consider evidence

adduced at a hearing on a new-trial motion that occurred outside the 75-

day limit but continued at the State’s behest. ................................................ 9

Ground for Review No. Two: ...................................................................... 13

The court of appeals erred in holding the evidence was sufficient to sustain

conviction....................................................................................................... 13

CERTIFICATE OF WORD COUNT ........................................................ 17

CERTIFICATE OF SERVICE .................................................................. 17




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                    Appellant’s Petition for Discretionary Review
                                     Page 3 of 17
                                      LIST OF AUTHORITIES

Cases

Harris v. State, No. 05-14-01228-CR .................................................. 9, 10, 13

Jackson v. Virginia, 443 U.S. 307 (1979) ...................................................... 13

Moore v. State, 225 S.W.3d 556, 568 (Tex. Crim. App. 2007) ..................... 10

Parmer v. State, 36 S.W.3d 661, 667 (Tex. App.—Austin 2000, pet. ref’d), 10

State v. Holloway, 360 S.W.3d 480, 486 (Tex. Crim. App. 2012), ............... 10

Statutes

Tex. Penal Code § 31.03 (a), (b) (1) and (e) .................................................... 5

Rules

Rule 21.8 (a) ................................................................................................... 11

Tex. R. App. Pro. 21 ...................................................................................... 11

Tex. R. App. Pro. 66.3 (c) ................................................................................ 9




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                    Appellant’s Petition for Discretionary Review
                                     Page 4 of 17
TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      COMES NOW Appellant Brandy Meshelle Harris and submits this brief

on appeal from her conviction in cause no. F13-00510-X.

                        STATEMENT OF THE CASE

      Appellant was charged with theft of property of the value of at least

$20,000 but less than $100,000, a third-degree felony. See Tex. Penal Code §

31.03 (a), (b) (1) and (e). (R.II 10). Trial was to the court on Appellant’s not-

guilty plea. Following the guilt-innocence evidence, the trial court found

Appellant guilty of the lesser-included offense of theft of property of the value

of at least $1,500 but less than $20,000, a state jail felony. (R.II 132). A

separate sentencing hearing was held, at which the court sentenced Appellant

to a term of two years imprisonment in a state jail, probated for five years, a

$750 fine and $7,000 restitution. (R.III 5). Appellant later filed a motion for

new trial which was denied following a hearing. (R. Supp. 41).




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                 Appellant’s Petition for Discretionary Review
                                  Page 5 of 17
               STATEMENT REGARDING ORAL ARGUMENT

       This case presents a serious issue involving whether a court may conduct

a new trial motion hearing if the State requests a continuance which results in

the hearing being conducted outside the 75-day time limit. Appellant believes

oral argument will assist the Court in resolving the issue.

                                 FACT STATEMENT

       Stephanie Elliott, the complainant, knew Appellant from her work at

BCBG.1 Complainant employed Appellant outside the store to assist her with

her wardrobe. (R.II 18). According to complainant, when Appellant was at her

house, she had access to everything. (R.II 19).2 The complainant kept her

jewelry in a closet with the precious stones locked in a jewelry box. (R.II 19-

20).

       On February 22, 2012, which would turn out to be the last day Appellant

was needed to complete the wardrobe work (and the last day she would ever

be at complainant’s residence) the complainant asserted that Appellant had

called earlier and asked to speak with her. (R.II 20).




1
  The record does not disclose the nature of the business, but an internet search reveals that
BCBG is a woman’s fashion enterprise with stores in the Dallas area.
2
  At the time of the alleged offense, the complainant lived on Bandera Street but later
moved to another address.
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                       Appellant’s Petition for Discretionary Review
                                         Page 6 of 17
      The complainant had a household rule that visitors were not allowed to

wear street shoes. On that day, the terrazzo floors were cold, so Appellant

asked to borrow a pair of socks. (R.II 21). While complainant finished some

paperwork in a different room, Appellant went to get the socks. Because

complainant felt it was taking too long for Appellant to find the socks, she went

to the closet area of the bedroom. There she found Appellant coming out of the

closet area, socks in hand and not on her feet. (All references are to R.II 21).

      Appellant and complainant sat down and Appellant asked to borrow

money and for some additional business referrals. Complainant did not agree

to extend a loan. At the time, according to the complainant, Appellant was

wearing a costume jewelry bracelet that complainant had noticed before

because it resembled her far-more-valuable tennis bracelet. Appellant’s

bracelet was elasticized and not hard metal. (R.II 22-23).

      It seemed to complainant that Appellant was in a hurry to leave, but

complainant was on a time schedule as well. They hugged and Appellant left.

(R.II 24).

      On March 30, 2012, complainant was packing and moving to her new

residence. As she was packing her closet, she noticed that the jewelry box lock

had been pried. When she opened the box, she saw what she believed was

Appellant’s costume bracelet, but her tennis bracelet was gone. (R.II 24). She

      _____________________________________________________________
                 Appellant’s Petition for Discretionary Review
                                  Page 7 of 17
claimed not to have seen the bracelet recently—she had gone back to culinary

school recently and could not wear it during the day—but her tennis bracelet

was normally a “daily wear” for her. (R.II 24-25).

      That same day she received an email from Appellant, asking for a loan.

She did not respond immediately, but later told Appellant in conversation that

she did not give loans. (R.II 30). She identified State’s Exhibit 2 as the costume

piece she found in the box instead of her tennis bracelet. (R.II 33).

      Complainant testified that the bracelet had cost her $20,000 to purchase.

Later she added heirloom diamonds near the clasp. (R.II 35).

      On April 7, 2012, she went to BCBG and confronted Appellant about

the missing bracelet. Appellant protested her innocence. Complainant asked

her to look for the piece and Appellant agreed. She called back later and said

she did not have the bracelet. According to complainant, Appellant never

admitted taking the bracelet. (R.II 37-38).

      During her direct and recross examination, the complainant claimed that

she had a video of Appellant poking around in her closet. Complainant

professed to have lost the digital storage medium and did not have the video at

trial. (R.II 62-63). Detective Adrian Ballin did not remember complainant

telling him there was a video and the parties stipulated that the police report

contained no mention of complainant having a video. (R.II 97; 75).

      _____________________________________________________________
                 Appellant’s Petition for Discretionary Review
                                  Page 8 of 17
                STATEMENT OF PROCEDURAL HISTORY

      The court of appeals’ opinion in Harris v. State, No. 05-14-01228-CR

was rendered October 22, 2015. No motion for rehearing was filed. The

petition is due November 23, 2015 and is filed on or before that date.


                                 ARGUMENT

      Ground for Review No. One:

      The court of appeals erred in holding that it could not consider evidence

adduced at a hearing on a new-trial motion that occurred outside the 75-day

limit but continued at the State’s behest.

      Reasons for Review:

      Tex. R. App. Pro. 66.3 (c) : the court of appeals has decided an important

issue of law which is in conflict with this Court’s opinions in State v. Holloway,

360 S.W.3d 480 (Tex. Crim. App. 2012) and Moore v. State, 225 S.W.3d 556

(Tex. Crim. App. 2007).

      Arguments and Authorities:

      As the court’s opinion reflects, Appellant timely filed her new trial

motion thirty days following sentencing. She requested a hearing and the

hearing date was set and reset several times. Sixty-nine days after sentencing,

the State sought a final continuance, which Appellant did not oppose, so that

all witnesses could attend the hearing. The hearing itself, per the State’s
      _____________________________________________________________
                 Appellant’s Petition for Discretionary Review
                                  Page 9 of 17
continuance motion, occurred seventy-nine days after judgment. Because the

hearing occurred more than seventy-five days after judgment, according to the

court, it could not consider any evidence adduced at the hearing, citing Parmer

v. State, 36 S.W.3d 661, 667 (Tex. App.—Austin 2000, pet. ref’d), and thus

Appellant’s ineffectiveness claim failed. Slip op. at 6-7. The court pretended

this was all that need be said. But the court was wrong on two counts: because

Appellant filed a timely notice of appeal before filing the new trial motion, the

trial court retained plenary power to consider the motion even after the

seventy-five day limit and even so, the State invited the error in going beyond

the time limit.

      In Moore v. State, 225 S.W.3d 556, 568 (Tex. Crim. App. 2007), this

Court held that under current law, the subject-matter jurisdiction of the trial

court over the case and the defendant extends, should the defendant timely file

a sufficient notice of appeal, to the point in time at which the record is filed in

the appellate court. In State v. Holloway, 360 S.W.3d 480, 486 (Tex. Crim.

App. 2012), we find this principle applied further. Holloway filed a motion for

DNA testing some four years after this Court denied his petition for

discretionary review. The trial court granted the motion and when the results

proved favorable to the defendant, purported to grant him a new trial. The State

contended that the trial court could not grant a new trial at this remove.

      _____________________________________________________________
                 Appellant’s Petition for Discretionary Review
                                 Page 10 of 17
        After discussing the dictates of Tex. R. App. Pro. 21, including Rule

21.8 (a), this Court then turned to Moore: “[i]n the instant case, the convicting

court's plenary jurisdiction to entertain a motion for new trial lapsed, at the

latest, when the appellate record was filed in Holloway I.” 360 S.W.3d 486.

(emphasis added). Because any motion for new trial came after filing of the

appellate record on direct appeal, the court lacked jurisdiction to grant a new

trial. Id.

        In the present case, however, Appellant filed a motion for new trial

fourteen days after judgment and before she filed her motion for new trial. The

motion for new trial was heard before the appellate record was filed.3 Under

Moore and Holloway, the trial court possessed the plenary power to hear and

consider the motion, and if the trial court could consider the motion, the court

of appeals could consider the evidence therein adduced in deciding Appellant’s

ineffective assistance point of error. The court of appeals erred in holding to

the contrary.

        Even absent Moore and Holloway, the court’s ruling is wrong. Parmer

v. State, 38 S.W.3d 661, 667 (Tex. App.—Austin 2000, pet. ref’d) is not in



3
 The court concedes that Appellant’s new trial motion was timely and notes the motion was
heard November 21, 2014. Appellant filed her notice of appeal on September 17, 2014,
before the motion was heard. The complete record on appeal was not filed until February 4,
2015      with    the     filing   of     the     reporter’s    record.     See     www.
Search.txcourts.gov/Case.aspx?cn=05-14-01228-CR&coa=coa05.
        _____________________________________________________________
                     Appellant’s Petition for Discretionary Review
                                      Page 11 of 17
point. Parmer is not a case where the State caused the hearing to be held outside

the limit. And if the court believes that is does not matter which party requested

the continuance beyond the limit, it should explicitly so state, which it did not

even attempt to do.

      Following the lead of Moore, the court should have held that the State’s

actions in this case constituted a waiver of any objection to the timing of the

hearing. The State requested the continuance. The State appeared at the hearing

and fully participated therein, never objecting or even notifying the trial court

that it considered the hearing jurisdictionally inappropriate. Only for the first

time on appeal did the State ask for a judicial “King’s X” and urge the court of

appeals to ignore the evidence from the hearing. This is hardly fair or just. If,

as in Moore, the State’s failure to object to a later-filed amended motion for

new trial constitutes waiver, then there is no principled reason why the result

should be different when the State requests a continuance of the motion hearing

beyond the time limit and participates in the hearing while failing to object.

      The court’s opinion is erroneous on two separate grounds and

discretionary review is appropriate.




      _____________________________________________________________
                 Appellant’s Petition for Discretionary Review
                                 Page 12 of 17
Ground for Review No. Two:

       The court of appeals erred in holding the evidence was sufficient to

sustain conviction.

       Reasons for Review:

       The court of appeals, though stating the correct standard of sufficiency review,

incorrectly applied the standard and reached an erroneous result.

       Argument and Authorities:

       At pages 13-19 of her brief, Appellant cited several problems with the

State’s evidence that rendered the evidence insufficient, even under the

deferential standard of Jackson v. Virginia, 443 U.S. 307 (1979). The court of

appeals essentially held that these were conflicts in the evidence that the trial

court was authorized to resolve:

       [t]he evidence showed appellant was one of only two people,
       other than Elliott, who had access to Elliott’s closet. On her last
       day at Elliott’s house, appellant was wearing the elastic band
       costume jewelry bracelet that looked “very similar” to Elliott’s
       expensive diamond and platinum bracelet. On that day, appellant
       took an excessive amount of time in Elliott’s closet retrieving a
       pair of socks. She also told Elliott she was in debt and needed
       money. Weeks later, Elliott noticed for the first time that the lock
       on her jewelry box was broken and her diamond and platinum
       bracelet was missing; in its place was the costume bracelet worn
       by appellant. Considering the evidence, we conclude the trial
       court could have rationally believed beyond a reasonable doubt
       that appellant stole Elliott’s bracelet and left her own elastic
       bracelet in its place.

Slip op. at 6.
       _____________________________________________________________
                  Appellant’s Petition for Discretionary Review
                                  Page 13 of 17
      The court of appeals wrongly characterized the evidence. The other

person with access to the closet was the complainant’s housekeeper, who had

much more frequent access to the closet than did Appellant. Moreover, the

evidence showed that the complainant initially accused the housekeeper of the

theft, which was significant, given the complainant’s later certainty that

Appellant had stolen the bracelet.

      It was the complainant’s story that on February 22, 2012, Appellant,

under the guise of obtaining socks, broke into the jewelry box, took out the

tennis bracelet, replaced it with her costume bracelet, and then made off with

the tennis bracelet. The complainant asserted she did not notice the jewelry box

had been compromised until March 30, 2012. (R.II 51). From February 22nd to

March 30th, she was wearing jewelry, but not when she attended cooking

classes. (R.II 50). The tennis bracelet, for complainant, was a “daily wear.”

(R.II 24). The complainant did not notice the tennis bracelet missing until

March 30th. (R.II 30).

      Closer examination of this testimony, and the inferences therefrom,

completely destroy the rationality of the guilt finding. The complainant wore

jewelry, daily or otherwise, for over a month between February 22nd and March

30th, but never noticed the lock had been compromised.



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                 Appellant’s Petition for Discretionary Review
                                 Page 14 of 17
       Even worse, if the tennis bracelet was a “daily wear” for the

complainant, we can only conclude, under the complainant’s account, that she

never noticed the tennis bracelet was missing. Yet worse, we must also

conclude that, since Appellant had switched the bracelets in the complainant’s

story, that the complainant, during the applicable time period, unknowingly

wore the costume bracelet, even though she knew the difference.4

       The costume bracelet itself, State’s Exhibit 2, hardly provides

corroboration for the assertion that Appellant stole the more valuable bracelet.

No effort was made to connect the costume bracelet to Appellant beyond the

complainant’s assertion they were the same. For example, no fingerprint

evidence was offered. Because this was a costume jewelry piece, one imagines

it was not “one of a kind” and therefore was not unique. Nor were there

apparently any markings that would have connected the piece with Appellant.

       As for Appellant’s request for a loan, and additional business referrals,

Appellant did not tell the complainant she was desperate for money and this

factor hardly points to her as the thief.



4
 The State elicited from complainant that while she was wearing jewelry during this period,
she might not have noticed the missing bracelet, because she had to pull out the
compartment completely where the bracelet was kept. (R.II 66-67). This does not solve the
State’s sufficiency problem: this testimony asks us to believe that the complainant, for some
unknown reason, stopped daily wearing the tennis bracelet during the applicable time
period, even though, since March 30th had not yet arrived, she had no reason to suspect that
the bracelet was missing.
        _____________________________________________________________
                       Appellant’s Petition for Discretionary Review
                                        Page 15 of 17
      The factors mentioned above are not conflicts in the evidence, they are

defects in the evidence. In resolving the sufficiency issue, the court failed to

perform the detailed review of the evidence that Appellant did in her brief. The

court’s resolution of the sufficiency issue is erroneous and discretionary review

is appropriate.

      WHEREFORE, Appellant prays that her petition for discretionary

review be granted.

                                        Respectfully submitted,


                                        /s/ John D. Nation
                                        John D. Nation
                                        State Bar No. 14819700
                                        4925 Greenville Ave., Suite 200
                                        Dallas, Texas 75206
                                        214-800-5160
                                        214-800-5161 (facsimile)
                                        nationlawfirm@gmail.com

                                        Attorney for Appellant




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                 Appellant’s Petition for Discretionary Review
                                 Page 16 of 17
                    CERTIFICATE OF WORD COUNT

      I hereby certify that this brief contains 2,981 words in Microsoft Word

2013, Times New Roman, 14 point font.


                                       /s/ John D. Nation
                                       John D. Nation

                       CERTIFICATE OF SERVICE

      I hereby certify that I have serve a true copy of this petition on Hon.

Susan Hawk, District Attorney, Dallas County, Frank Crowley Courts Bldg.,

133 N. Riverfront, Dallas, Texas 75207, by the electronic filing system on this

23rd day of November 2015.


                                       /s/ John D. Nation
                                       John D. Nation




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                 Appellant’s Petition for Discretionary Review
                                 Page 17 of 17
Affirmed as Modified and Opinion Filed October 22, 2015




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-14-01228-CR

                        BRANDY MECHELLE HARRIS, Appellant
                                       V.
                           THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 6
                                   Dallas County, Texas
                           Trial Court Cause No. F-1300510-X

                             MEMORANDUM OPINION
                           Before Justices Francis, Lang, and Brown
                                  Opinion by Justice Francis
       Following a bench trial, Brandy Mechelle Harris was convicted of theft of property

valued at $1500 or more but less than $20,000. The trial court assessed punishment at two years

in state jail, suspended sentence, and placed appellant on five years community supervision. In

two issues, appellant challenges the sufficiency of the evidence to support her conviction and the

adequacy of counsel’s representation.     In a cross-issue, the State requests we modify the

judgment to reflect that appellant pleaded not guilty to the offense. We overrule appellant’s

issues and sustain the State’s cross-issue. We modify the judgment as requested and affirm as

modified.

       Stephanie Elliott testified she met appellant through appellant’s work at Tootsie’s and

BCBG, two apparel stores. Elliott was one of appellant’s customers. During one of her visits to
BCBG, Elliott hired appellant to prepare a wardrobe book for her. The project entailed appellant

going through Elliott’s wardrobe and putting together different articles of Elliott’s clothing,

along with shoes, jewelry, and accessories, and photographing the ensemble.

       Appellant went to Elliott’s condominium four or five times to work on the book. Elliott

lived in a controlled-access building, meaning that each time appellant came to her residence,

Elliott had to go down a private elevator and exit to a secured door to let appellant in or out.

Elliott said she had to use a key fob for entry and exit, and she had the only key fob.

       While working on the book, appellant had “complete access” to Elliott’s wardrobe, all

her jewelry, “everything.” Elliott said she kept her “precious stones,” including a diamond and

platinum tennis bracelet, in a locked jewelry box in her closet. She kept her “simpler pieces” in a

drawer with jewelry trays.

       During this time, Elliott noticed appellant wearing a costume jewelry bracelet that, “at

first glance,” looked real and “very similar” to Elliott’s diamond and platinum tennis bracelet.

Elliott commented on the bracelet, and appellant said it was a “little cheapy” and showed her that

it had an elastic band. At some point, appellant commented on “how beautiful” Elliott’s bracelet

was.

       Appellant’s last day at Elliott’s home was February 22, 2012, and she was wearing the

elastic band bracelet. Elliott had a rule that guests could not wear shoes in her home. On that

day, appellant told Elliott her feet were cold and asked to borrow a pair of socks. Elliott let

appellant go to her closet to get a pair, but when it took longer than Elliott thought it should, she

went to look for appellant. As Elliott went into the bedroom, appellant was coming out of the

closet with the socks in her hands.

       The two went to Elliott’s sitting room, and appellant told Elliott she was in debt and

needed to borrow money. She also said she needed more work and asked if Elliott could refer

                                                –2–
her to some people. Elliott said appellant seemed to be “in a little bit of a hurry to leave,” and

she hugged her and told her she would see if she could find her other referral work.

       On March 30, Elliott was in the process of packing her belongings so that she could move

and noticed the lock on her jewelry box was broken. Although Elliott had been accessing the

box in the previous weeks, she did not notice the lock had been tampered with until a small

screw fell out. When she went through the box’s contents, she discovered that her diamond and

platinum bracelet was missing and appellant’s elastic bracelet was in its place. Although Elliott

generally wore the bracelet daily, she had not worn it in the time since appellant had last been at

her house because she was in culinary school and was not allowed to wear jewelry.

       Upon discovering the bracelet missing, Elliott said she began “rolodexing” how many

people had been in her residence and had access to her closet. She determined it was only she,

her cleaning lady, and appellant. Elliott said her cleaning lady had been with her for three years,

and nothing had ever been stolen during that time. She also knew the elastic bracelet left in her

jewelry box belonged to appellant, yet she said she quizzed her cleaning lady until she was in

tears because she believed appellant was a “trusted friend.”

       On the same day that she discovered her bracelet missing, Elliott received an email from

appellant saying she was $26,000 in debt and asking to borrow $13,000. Elliott told appellant

she did not “give loans.” A week later, Elliott went to BCBG and confronted appellant about the

bracelet. The two went outside to talk, and appellant denied taking the bracelet. Elliott offered

“several different scenarios” in which appellant could have innocently or accidentally taken the

bracelet, and appellant said, “No, absolutely not.”       During their conversation, Elliott said

appellant became “very theatrical” and loud. Ultimately, appellant agreed she would look for the

bracelet and call Elliott back. Within a couple of days, appellant called Elliott and said she could

not find the bracelet and suggested the cleaning lady stole it. Later that day, Elliott received a

                                                –3–
text from appellant saying she had gotten a $7000 bonus from BCBG. According to Elliott,

BCBG told her it does not give bonuses to employees.

       On April 10, Elliott reported the theft to the police. By that time, she had moved from

her condominium to another address. At trial, she testified she had a video of appellant in her

closet on that last day going through the area of her jewelry box, but said she had lost it during

her move. She also said she told the police about the video, but the police report did not mention

a video.

       Finally, other evidence was presented regarding the value of the bracelet. Elliott testified

the bracelet was custom made for about $20,000, and she later added five diamonds to the clasp.

Other evidence showed that, at the time of the theft, Elliott told the police its value was $12,000.

Elliott’s jeweler, who had been appraising jewelry for more than thirty years, testified the

bracelet’s value was “somewhat in excess of $30,000” and that it would cost approximately

$40,000 to purchase it retail.

       The indictment alleged the property taken was a bracelet with a value of at least $20,000

but less than $100,000. After hearing the evidence, the trial court found the bracelet’s value was

more than $1500 but less than $20,000 and found appellant guilty of state jail felony theft.

       In her first issue, appellant contends the evidence is insufficient to support her conviction.

In reviewing a challenge to the sufficiency of the evidence, we examine the evidence in the light

most favorable to the verdict to determine whether any rational trier of fact could have found the

essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979).

This standard accounts for the factfinder’s duty to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic to ultimate facts. Clayton v. State, 235

S.W.3d 772, 778 (Tex. Crim. App. 2007). Therefore, when analyzing the sufficiency of the

evidence, we “determine whether the necessary inferences are reasonable based upon the

                                                –4–
combined and cumulative force of all the evidence when viewed in the light most favorable to

the verdict.”   Id.   For purposes of proving guilt beyond a reasonable doubt, direct and

circumstantial evidence are treated equally. Id.

       A person commits theft if she unlawfully appropriates property with intent to deprive the

owner of the property. TEX. PENAL CODE ANN. § 31.03(a) (West Supp. 2014). Appropriation of

property is unlawful if it is without the owner’s effective consent. Id. § 31.03(b)(1).

       Here, appellant argues the evidence is insufficient because Elliott’s testimony was “so

riddled with contradictions, mistakes . . . and variances with normal human experience as to

render the finding of guilt irrational.” In particular, she argues (1) Elliott did not notice until

March 30 that the lock on the jewelry box had been compromised; (2) although she claimed at

trial to have had video evidence at one time, the police report did not mention any such evidence

nor did the investigating officer recall Elliott telling him about a video; and (3) Elliott testified

she paid $20,000 for the bracelet but told the police the bracelet was worth $12,000. She points

to other “problems” with the evidence. She contends no fingerprint evidence connects the elastic

bracelet to appellant. Also, she questions why Elliott would quiz her housekeeper to tears if she

found the costume bracelet in her jewelry box, suggesting the costume bracelet was found

elsewhere in the residence and put in the jewelry box by the housekeeper after she stole the

bracelet. Finally, she argues Elliott’s behavior was “suspect” because she did not immediately

confront appellant even when appellant asked for a loan

       Although appellant argues the above “problems” render the evidence legally insufficient,

we cannot agree. First, we note, as did Elliott at trial, the theft occurred two and a half years

earlier and Elliott was testifying based on her memory and recall of the event. While there may

have been some inconsistencies on particular sequences of events or the value of the bracelet, the

trial court was in the best position to resolve those inconsistencies and to judge Elliott’s

                                                –5–
credibility. With that in mind, the evidence showed appellant was one of only two people, other

than Elliott, who had access to Elliott’s closet. On her last day at Elliott’s house, appellant was

wearing the elastic band costume jewelry bracelet that looked “very similar” to Elliott’s

expensive diamond and platinum bracelet. On that day, appellant took an excessive amount of

time in Elliott’s closet retrieving a pair of socks. She also told Elliott she was in debt and needed

money. Weeks later, Elliott noticed for the first time that the lock on her jewelry box was broken

and her diamond and platinum bracelet was missing; in its place was the costume bracelet worn

by appellant.   Considering the evidence, we conclude the trial court could have rationally

believed beyond a reasonable doubt that appellant stole Elliott’s bracelet and left her own elastic

bracelet in its place. Further, the evidence was sufficient to show the value of the bracelet was

$1500 or more but less than $20,000. We overrule the first issue.

       In her second issue, appellant argues she received ineffective assistance of counsel

because counsel failed to adduce evidence she believed was important to her case and advised

her not to testify. To support her complaints, she relies on evidence adduced at a hearing held

after her motion for new trial was overruled by operation of law.

       A motion for new trial must be filed no more than thirty days after the date the trial court

imposes the sentence. TEX. R. APP. P. 21.4(a). The trial court must rule on the motion within

seventy-five days after imposing sentence; otherwise, the motion is deemed overruled by

operation of law. TEX. R. APP. P. 21.8(a), (c). Once a motion for new trial is overruled by

operation of law, the trial court is without jurisdiction to rule on the motion. State v. Garza, 931

S.W.2d 560, 562 (Tex. Crim. App. 1996). A hearing held after the trial court has lost jurisdiction

to rule on the motion is not authorized and therefore will not be considered on appeal. Parmer v.

State, 38 S.W.3d 661, 667 (Tex. App.—Austin 2000, pet. ref’d).




                                                –6–
       In this case, the trial court imposed sentence on September 3, 2014. Appellant timely

filed a motion for new trial thirty days later, or October 3, 2014. A hearing on the motion was

set and reset several times. At a hearing on November 11, which was sixty-nine days after

imposition of sentence, the State sought a final continuance so that all parties could be present,

and appellant’s counsel specifically stated he did not object.      The trial court granted the

continuance and did not conduct the hearing until November 21, which was four days after the

motion was overruled by operation of law.        Consequently, this Court cannot consider any

evidence presented at the hearing.

       To successfully assert an ineffective assistance of counsel challenge on direct appeal, an

appellant must show that (1) counsel’s representation fell below an objective standard of

reasonableness and (2) the deficient performance prejudiced him; that is, but for the deficiency,

there is a reasonable probability that the result of the proceeding would have been different.

Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). An ineffective assistance of

counsel claim must be “firmly founded in the record,” and the record must “affirmatively

demonstrate” the claim has merit. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.

2005). We commonly assume a strategic motive if any can be imagined and find counsel’s

performance deficient only if the conduct was so outrageous that no competent attorney would

have engaged in it. Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005).

       Here, appellant’s motion for new trial raised three ineffective assistance of counsel

grounds: (1) trial counsel met with her only briefly and with insufficient consultation time to

prepare a defense; (2) trial counsel would not permit her to testify even though she wished to

testify and had relevant and material evidence to the guilt-innocence determination; and (3) trial

counsel failed to impeach Elliott with material information that contradicted her trial testimony.




                                               –7–
Appellant asserted the motion’s resolution depended on facts not determinable from the record

and an evidentiary hearing was required.

       Because we cannot consider the evidence adduced at the new trial hearing, there is

nothing in the record to support appellant’s particular assertions of ineffective assistance. Under

these circumstances, we therefore conclude she has not met her burden of overcoming the strong

presumption of reasonable assistance required by Strickland. See Rylander, 101 S.W.3d at 110.

We overrule the second issue.

       In a cross-issue, the State asks us to modify the trial court’s judgment to reflect that

appellant pleaded not guilty to the offense. The record shows appellant pleaded not guilty to the

offense, but the judgment shows she pleaded guilty. This Court has the authority to correct a

judgment to make the record below “speak the truth” when we have the necessary data and

information to do so. Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet.

ref’d). Accordingly, we modify the judgment to reflect a plea of not guilty to the offense.

       We affirm the judgment as modified.




Do Not Publish
TEX. R. APP. P. 47.2(b)
141228F.U05                                          /Molly Francis/
                                                     MOLLY FRANCIS
                                                     JUSTICE




                                               –8–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

BRANDY MECHELLE HARRIS,                              On Appeal from the Criminal District Court
Appellant                                            No. 6, Dallas County, Texas
                                                     Trial Court Cause No. F-1300510-X.
No. 05-14-01228-CR         V.                        Opinion delivered by Justice Francis;
                                                     Justices Lang and Brown participating.
THE STATE OF TEXAS, Appellee

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

       To reflect a Plea to Offense of Not Guilty.

As MODIFIED, the judgment is AFFIRMED.


Judgment entered October 22, 2015.




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