







COURT OF APPEALS








COURT
OF APPEALS
EIGHTH
DISTRICT OF TEXAS
EL
PASO, TEXAS
 
CHARMAYNE RUSHING,                                 )
                                                                              )              
No.  08-02-00120-CR
Appellant,                          )
                                                                              )                    Appeal from the
v.                                                                           )
                                                                              )                
385th District Court
THE STATE OF TEXAS,                                     )
                                                                              )           
of Midland County, Texas
Appellee.                           )
                                                                              )                   (TC# CR24590)
                                                                              )
 
 
O
P I N I O N
 
Charmayne Rushing
appeals her theft by repetition conviction. 
A jury found her guilty and she was sentenced by the trial court to 12
years=
imprisonment.  On appeal, Appellant
challenges the legal and factual sufficiency of the evidence supporting her
conviction.  We affirm.
The evidence in
this case is as follows.  Appellant, with
her husband, Michael Lewis, entered a Wal-Mart store in Midland, Texas.  Richard Baze, a Wal-Mart security employee,
saw them with a cart holding open Wal-Mart bags which contained
merchandise.  He found this suspicious
and he began tailing them.  He saw them
select men=s packaged
thermal underwear and 




under-shirts from store shelves and
place them in the cart alongside the Wal-Mart bags.  Then minutes later, in another section of the
store, he saw them surreptitiously place those same items into the Wal-Mart
bags with the other merchandise.  The
couple then pushed their cart up to the front of the store, past closed
check-out registers and up to the service desk. 
Appellant took out two bags leaving one or more bags in the cart.  Mr. Baze could not hear any conversations but
it appeared to him that they tried to get a refund or exchange on some of the
merchandise they had in the two Wal-Mart bags. 

The evidence about
what happened next is unclear.  According
to Mr. Baze, after the exchange was refused, Appellant and Mr. Lewis left some
men=s pants at the service desk and started
to leave the store with several bags in the cart.  They went out through the first set of doors
but stopped to talk in the vestibule. 
Mr. Baze, still tailing them, walked past them unnoticed and once
outside, turned to watch and wait for Appellant and Mr. Lewis to exit the
store.  Mr. Lewis, empty handed, left the
store and walked out into the parking lot; Appellant, however, went back into
the store, took one bag out of the cart, and put it on the floor near where the
door greeter stands.  Mr. Baze believed
that she did this because she had seen uniformed Wal-Mart employees, whom he
had radioed, rushing towards her.  After
setting down the bag, Appellant turned, and still pushing a cart with bags in
it, went back through the first set of doors into the vestibule where Mr. Baze
detained her.




Mr. Baze=s testimony at trial was that property
unlawfully appropriated was in Wal-Mart bags in the cart that Appellant was
pushing when he detained her.  He
testified that he made a display of those items, photographed them, and then
annotated the photograph has AEvidence
from Theft.@  This photograph was admitted as State=s Exhibit No. 2.  The photograph depicts eleven assorted
packages of men=s
underwear.  Mr. Baze additionally
testified that he took a photograph of the merchandise that was in the bag that
Appellant placed on the floor by where the door greeter normally stands.  This photograph, admitted as State=s Exhibit No. 1, displays four packages
of mens=
underwear and a dark colored jacket.  Mr.
Baze adamantly testified that the items in State=s
Exhibit No. 1, along with three pairs of pants, which he did not photograph,
were the items that Appellant and Mr. Lewis had brought into the store and had
tried to exchange.  He also testified
that there were pink stickers on the three pair of pants, indicating that the
pants had been checked in by the door checker for refund or exchange.
Though never
challenged or queried, Mr. Baze=s
written statement, State=s
Exhibit No. 11 provides a distinctly different account of the Appellant=s actions after her request for an
exchange was rejected.  In pertinent
part, Mr. Baze=s
statement reads:
THEY THEN PROCEEDED TOWARDS THE FRONT
AND CUT THROUGH A CLOSED REGISTER AND TO THE SERVICE DESK WHERE SHE SAID SHE
WANTED TO MAKE AN EXCHANGE.  THE EXCHANGE
WAS DENIED AND THEY PROCEEDED TO THE NORTH-EAST MAIN EXIT.  THERE, MS. RUSHING AND MR. LEWIS SAID
SOMETHING TO EACH OTHER AND HE TURNED AROUND AT THE DOOR AND CONTINUED
OUT.  MS. RUSHING PUSHED THE MERCHANDISE
OUT THE FIRST SET OF DOORS WHEN SHE REALIZED SOME MANAGEMENT WHERE [sic]
PROCEEDING TO THE DOORS QUICKLY.  SHE
TURNED AROUND AND PUSHED THE BASKET BACK IN AND REMOVED THE BAG THAT SHE
BROUGHT IN WITH HER AND PROCEEDED OUT THE DOOR AGAIN.  SHE THEN STOPPED AND PROCEEDED BACK IN AS SHE
SAW ME APPROACH HER.
 
Hilario Esparza
who was working at the Service Desk that day, remembered a couple who attempted
to exchange three pair of pants without a receipt and that the automated
register system would not approve the exchange. 
According to Mr. Esparza, Appellant wanted to exchange three pair of
pants for the thermal underwear and under-shirts shown in State=s Exhibit No. 1. 




As for the
merchandise displayed in State=s
Exhibit No. 2, Mr. Esparza testified that he never saw those items.  His contemporaneous written statement, which
was not critically reviewed by Appellant=s
lawyer but was admitted as State=s
Exhibit No. 10, reads:
2 customers (a lady & man) come to
service desk to exchange 3 mens pants. 
They set 2 A-shirt packages, 2 packages of thermal draws.  Ran the refund through register & entered
driver licence.  Refund was denied.  They then grabbed their pants to take with
them, and threw a black leather jacket on top of the shirts & draws.  Left the shirts, draws, & jacket at
service desk.  When they left they had
several wal-mart bags full of clothing (thermals?).  They left the Service Desk. 
 
In comparing Mr.
Baze=s and Mr.
Esparza=s
testimony, we, like the jury[1],
are left wondering what was in the cart or the basket.  We think it=s
clear that contrary to Mr. Baze=s
testimony, the items in State=s
Exhibit No. 1 were left with Hilario Esparza at the Service Desk.  
Appellant
testified that she was trying to exchange six pairs of pants which had been marked
with pink stickers as proof that she had brought them into the store.  Upset because her request to exchange the
pants for the underwear was rejected, she and Mr. Lewis left the service desk;
just before walking out the first set of doors to leave the store, Appellant
pulled her pants out of the cart and simply left the un-purchased merchandise
in the cart.  On cross-examination, she
was forced to admit a litany of previous theft convictions.  
Mr. Lewis= testimony was also offered at
trial.  On direct examination, he
essentially corroborated Appellant=s
account, but on cross-examination, he had to admit that he had plead guilty to
the very same theft.  He claimed however,
that the only reason that he plead guilty was to be released from the county
jail in order to start serving another state jail sentence.
Standard of Review




In reviewing the
legal sufficiency of the evidence, we must review the evidence in the light
most favorable to the verdict to determine whether any rational trier of fact
could have found the essential elements of the offense beyond a reasonable
doubt.  Jackson v. Virginia, 443
U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979).  Sufficiency of the evidence should be
measured by the elements of the offense as defined by the hypothetically
correct jury charge for the case.  Malik
v. State, 953 S.W.2d 234, 239-40 (Tex.Crim.App. 1997).  Our duty is not to reexamine the evidence and
impose our own judgment as to whether the evidence establishes guilt beyond a
reasonable doubt.  See Lyon v. State,
885 S.W.2d 506, 516-17 (Tex.App.--El Paso 1994, pet. ref=d).  Instead, our duty is to determine whether if
both the explicit and implicit findings of the trier of fact are rational by
viewing all the evidence admitted at trial in the light most favorable to the
verdict.  Adelman v. State, 828
S.W.2d 418, 421-22 (Tex.Crim.App. 1992). 
Any inconsistencies in the evidence are resolved in favor of the
verdict.  See Matson v. State, 819
S.W.2d 839, 843 (Tex.Crim.App. 1991).




In reviewing a
factual sufficiency of the evidence challenge, we consider all of the evidence
in a neutral light, both for and against the verdict, to determine whether it
demonstrates that the proof of guilt is so obviously weak as to undermine out
confidence in the jury=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.Crim.App. 2000); Clewis v. State, 922
S.W.2d 126, 134 (Tex.Crim.App. 1996).  In
conducting a factual sufficiency review, the reviewing court cannot substitute
its conclusions for those of the jury. 
See Davila v. State, 930 S.W.2d 641, 647 (Tex.App.--El Paso 1996,
pet. ref=d).  Our review must employ appropriate deference
and should not intrude upon the fact finder=s
role as the sole judge of the weight and credibility given to any evidence
presented at trial.  Johnson, 23
S.W.3d at 7; Clewis, 922 S.W.2d at 134. 
A jury=s verdict
is not manifestly unjust merely because the fact finder resolved conflicting
views of the evidence in favor of the State. 
Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App. 1997).
Discussion
The indictment in
this case alleged that Appellant unlawfully appropriated the property by deception.  Tex.Pen.Code
Ann. '
31.03(a)(Vernon Supp. 2004) provides that a person commits the offense of theft
if Ahe unlawfully appropriates property
with intent to deprive the owner of property.@  Under the Texas Penal Code Section 31.03(b), A[a]ppropriation of property is unlawful
if:  (1) 
it is without the owner=s
effective consent . . . .@  See
Tex.Pen.Code Ann.  ' 31.03(b)(1).  Consent is not effective if it is induced by
deception and the kind of deception involved in this case is defined as Acreating or confirming by words or
conduct a false impression of law or fact that is likely to affect the judgment
of another in the transaction, and that the actor does not believe to be true.@ 
Tex.Pen.Code Ann. ' 31.01(1)(A), (3)(A).
The State concedes
that the jury charge here is faulty because it fails to mention or define
deception.  See MacDougall v. State,
702 S.W.2d 650, 652 (Tex.Crim.App. 1986). 
However, as noted earlier, sufficiency of the evidence is to be measured
by the elements of the offense as defined by the hypothetically correct jury
charge for the case.  Malik, 953
S.W.2d at 239-40.  We reject, however,
the State=s
suggestion that a hypothetically correct jury charge in this case would be:




Was the evidence sufficient to show
that any consent given by the store for Appellant to put the merchandise in the
cart was given pursuant to the false impression given by Appellant=s actions that she would eventually pay
for the merchandise?
 
We find that patently over broad,
which could lead to absurd results. 
Instead, we believe a correct application charge would more properly be:
Was the evidence sufficient to show
that at the time of the appropriation the Appellant acquired it by means of
deception with the intent to deprive the owner of such property?
 
And then applying Section
31.01(4)(A), which states deception is defined to mean Acreating
or confirming by words or conduct a false impression of law or fact this is
likely to affect the judgment of another in the transaction, and that the
[defendant] does not believe to be true.@
Consequently, the
offense of theft by deception does not occur if the alleged victim hands over
property or consents to the defendant taking possession knowing that the
defendant=s
representations are not true.  See
Swope v. State, 723 S.W.2d 216, 223 (Tex.App.--Austin 1986), aff=d, 805 S.W.2d 422 (Tex.Crim.App.
1991).  In other words, an essential
element of theft by deception is that the victim relied and acted upon the
deception.  See id.




Mr. Baze, the loss
protection employee, saw Appellant take thermal underwear and other items and
place them in her cart.  Later, he saw
Appellant put those same items, in a suspicious manner, into an opened Wal-Mart
bag which had other items that he assumed that she had brought into the
store.  Both sides concede that at this
point, Appellant has appropriated the property. 
In simple theft, as the State notes, appropriate is more akin to
possession of property than to transfer of property.  See Baker v. State, 511 S.W.2d 272, 273
(Tex.Crim.App. 1974).   The State argues
that the evidence is sufficient because the owner=s
consent for Appellant to put goods into a cart was ineffective because it was
induced by the deception of Appellant that she would eventually pay for
goods.  We find no merit in that
argument.  The commercial realities of
retail merchandising is the reason that customers have the store owners consent
to remove items from the shelves.  That
consent is not induced by the deception, and when Mr. Baze saw Appellant take
the goods from the shelves and put them in her cart or even when she put them
in the bags, there has been no transaction or transfer.  Indeed, Mr. Baze stated that he did not
believe that the theft had taken place at the point.  
As evidenced by
the jury=s
question during their deliberations, they had doubt as to what Appellant
actually had in her cart when she was detained by Mr. Baze.  We think the evidence clearly shows that she
only had the pants that she initially brought into the store to exchange.  Mr. Esparza, the Service Desk attendant,
was unequivocal that the items depicted in State=s
Exhibit No. 1, and annotated as Aexchange@ items, were left with him at the
Service Desk, and not, as Mr. Baze testified, placed by Appellant on the floor
near the door greeter.  That could only
mean that the bag that contained the items that Mr. Baze saw Appellant put in
the bag, as shown in State=s
Exhibit No. 2, were in the bag that Appellant either put on the floor by the
door greeter according as Mr. Baze=s
account suggests, or were left in the cart and abandoned in the store as
suggested by Appellant=s
testimony. 




But, where the
bags were and which items were in which bags when Appellant was detained is irrelevant
because the transaction necessary for a theft by deception had already taken
place.  That transaction occurred when
Mr. Esparza refused to exchange the pants for the thermal underwear and
Appellant and her husband stormed off with their pants and another bag of
thermal underwear.  We believe the
evidence is legally and factually sufficient for a jury to find that Appellant
attempt to exchange clothing was a blind to theft of another set of similar
goods concealed in another bag.  Though
Appellant testified that the bag containing the articles shown in State=s Exhibit No. 2, and for which she was
charged, were left in a cart inside the store just before she tried to leave,
the deception had already occurred and the theft completed.  We conclude that the evidence is both legally
and factually sufficient to sustain the jury=s
verdict of guilty and overrule both of Appellant=s
issues.
The judgment of
the trial court is affirmed.
 
 
 
July
1, 2004
DAVID WELLINGTON
CHEW, Justice
 
Before Panel No. 1
Larsen, McClure, and Chew, JJ.
 
(Publish)




[1]
The jury during its deliberation sent a note to the trial court asking AWhat was exactly in the basket when she
was stopped?@


