Opinion issued February 5, 2004
In The
Court of Appeals
For The
First District of Texas
NOS. 01-02-00318-CR
01-02-00319-CR
____________
CHERYL BERNICE McFARLAN
aka CHERYL BERNICE HAMLETT BINGLEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Cause Nos. 887864 and 747996
MEMORANDUM OPINION
Appellant, Cheryl Bernice McFarlan aka Cheryl Bernice Hamlett Bingley, appeals her convictions for felony theft (trial court cause number 747996; appellate cause number 01-02-00319-CR) and debit card abuse (trial court cause number 887864; appellate cause number 01-02-00318-CR).
In 1997, appellant pleaded no contest to felony theft. Pursuant to a plea agreement, the trial court deferred adjudication of guilt and placed appellant on 10 years’ community supervision. One of the conditions of the community supervision was that appellant not violate state or federal law.
In 2001, appellant was indicted for debit card abuse. The State sought to adjudicate appellant’s guilt for theft on the basis that she had committed debit card abuse, a violation of her deferred adjudication community supervision. Appellant waived her right to trial by jury. Appellant agreed to have the trial court hear both the motion to adjudicate guilt for the first offense of theft and the trial on the merits of the second offense of debit card abuse in a consolidated proceeding.
Finding the State’s allegation that appellant committed the second offense of debit card abuse to be true, the trial court adjudicated appellant guilty of theft. The trial court then found appellant guilty of the second offense of debit card abuse. After the punishment hearing, the trial court sentenced appellant to three years in the theft case, appellate cause number 01-02-00319-CR, and nine months in the debit card abuse case, appellate cause number 01-02-00318-CR.
In four points of error, appellant complains that (1) the trial court denied her due process and due course of law when it found appellant guilty of debit card abuse because the trial court stated on the record that it had a reasonable doubt regarding appellant’s guilt and (2) the trial court denied appellant due process and due course of law in both cause numbers when it considered appellant’s deferred adjudication status in assessing appellant’s credibility.
We dismiss appellant’s appeal of the theft case, appellate cause number 01-02-00319-CR, for want of jurisdiction. We affirm the trial court’s judgment in the debit card abuse case, appellate cause number 01-02-00318-CR.
Background
Appellant worked at Memorial Hermann Healthcare System (“MHHS”) as a claims processor. Appellant’s cubicle was located next to that of complainant Deanna Oeltjen. At approximately 11:00 a.m. on June 12, 2001, complainant noticed that a $100 bill was missing from her purse, which she kept under her desk. Following her lunch breack, at around 1:30 p.m., complainant noticed her Visa debit card lying on the floor beside her purse.
A couple of days later, complainant learned that a $400 gift certificate from Foley’s department store had been purchased using her debit card. Foley’s records showed that the gift card had been purchased on June 12 at 10:22 a.m.
Complainant suspected that either appellant or another coworker, R. Lewis, had taken the debit card. Complainant contacted the Houston Police Department to report the crime and met with forgery officer Dennis Domagas. Officer Domagas learned that appellant had been previously arrested for theft. The officer compiled two photospreads—one containing appellant’s photograph and the other containing Lewis’s photograph. Officer Domagas showed the two photospreads to Charlotte Pickett, the Foley’s sales clerk who had sold the $400 gift certificate purchased with complainant’s debit card.
Each photospread contained six photographs. Out of the 12 photographs contained in the two photospreads, Pickett identified only appellant as the person to whom she had sold the $400 gift certificate on June 12.
At trial, Pickett testified that on June 12 appellant and an unidentified man came into Foley’s shortly after the store opened. The couple asked to purchase two $400 Foley’s gift cards with a credit card. Pickett indicated that she remembered the transaction because the requested gift cards were for such large sums.
Pickett recalled that she had contacted her manager and Foley’s “loss prevention” to determine whether she should complete the transaction. Loss prevention gave Pickett its approval. Pickett then charged the first $400 gift card to complainant’s debit card. But, when Pickett tried to charge the second $400 gift card, the bank denied authorization. Pickett stated that she reached for the telephone to call the bank to obtain authorization, but appellant told her not to call. Pickett found this unusual because “99 percent of the time the customer allows us to call whoever we need to call.”
Appellant also presented several witnesses at trial. Through MHHS records custodian Terry Kanzig, the defense introduced business records showing that on June 12 appellant had clocked into work at 7:08 a.m. and out at 2:53 p.m. Appellant clocked out at no other time that day.
MHHS risk management security software records custodian Tim Moore testified that the employees in the claims department, where appellant worked, had individual secure passwords to access the computer server. The computer software that appellant used to do her job could only be accessed from five computer stations in appellant’s work area. On June 12, 2001, five computer entries were made between 10:22 a.m. and 10:54 a.m. using appellant’s password. However, on cross-examination, Moore stated that he was aware that two MHHS employees were sharing one password at the time of trial.
Memorial Hermann Credit Union manager Patricia McDonald testified that complainant’s debit card was used for a $400 purchase at Foley’s on June 12, 2001 at 10:22 a.m. Another charge was attempted for $400 at Foley’s at 10:25 a.m. Two more transactions, which were declined by the bank, were attempted at 10:52 a.m. and 10:54 a.m. at a shoe store. Foley’s records custodian David Riddle testified that someone redeemed the $400 gift card to purchase items on June 13, 15, and 16, 2001.
Appellant also testified at trial. Appellant stated that, based on an investigation she conducted following her arrest for debit card abuse, it would have taken her at least an hour to leave work, travel to Foley’s, go to the shoe store, and then return to work. Appellant also testified that, after Pickett identified her as the person to whom Pickett had sold the $400 gift card, appellant went to Foley’s, purchased merchandise from Pickett, and spoke to Pickett regarding potential employment with Foley’s. Appellant also introduced Pickett’s business card into evidence. According to appellant, Pickett told her that she could use Pickett as a referral on the Foley’s employment application. Appellant testified that she spoke with Pickett 20 to 25 minutes that day.
In response to evidence presented by the State that June 12 was appellant’s last day of employment with MHHS, appellant testified that she had given her resignation notice a month prior to her last day. Appellant acknowledged that her resignation notice had designated June 13 as her last day of employment with MHHS. Appellant explained that she had an argument with her supervisor on June 12 and decided not to return the following day.
Following closing arguments, the trial court verbally summarized the evidence presented at trial, discussed the inferences it had drawn from the evidence, and presented its conclusions based on the evidence. The court began by stating the reasons why it found Pickett’s photospread identification of appellant to be credible and reliable, but the court also recognized the danger in relying solely on photo-spread identifications. The court observed that in this case other credible circumstantial evidence linked appellant to the debit card abuse offense. The trial court noted that appellant had the opportunity to commit the offense and found the fact that appellant’s last day of employment with MHHS was the date of the offense to be incriminating. The court further noted that it did not find appellant’s testimony to be credible due to appellant’s deferred adjudication status.
After discussing the evidence, the trial court concluded as follows regarding the motion to adjudicate appellant’s guilt in the theft case:
To prove a motion to adjudicate, the State simply has to prove by the preponderance of the evidence that the defendant broke the conditions of probation. And I think that if I look at this case strictly by a preponderance of the evidence, the State has met the burden of proof. She was positively identified in the photospread, the circumstantial evidence backs up the positive identification, circumstantial evidence in that she had the opportunity to commit the crime, she had the opportunity to take the card, she had the opportunity to return the card, and that she fled or quit working after the offense. All of those circumstantial items support the positive identification of the defendant.
So, I am finding that the State has met their burden of proof with regards to the motion to adjudicate guilt regarding the law violation.
After finding the State had met its burden with regard to the motion to adjudicate, the trial court then turned to the debit card abuse offense and stated as follows:
As to the new charge of debit card abuse, it is more difficult to me, more difficult to me when the State has to prove the case beyond a reasonable doubt. Do I have a reasonable doubt? The truth of the matter is I do. I think the defendant is a bright lady. I think the defendant has the ability to be cunning and deceptive. And I think that she planned this out. It took a fairly bright person to be able to have somebody come, pick them up after taking the card, drive to a nearby area, ask for a gift card, something you can purchase quickly in a large amount that she can later come back and get items—That’s pretty smart to come up with that concept of the theft—drive back, have the person drop you off, and then go right back to work and then return the card so that the card holder would never know how the person had gotten ahold of the card or the card number. That takes a pretty smart, manipulative kind of person. And I think the defendant, based on what I’ve seen, is such person.
So, I am finding the defendant guilty of debit card abuse.
Discussion
A. Did the trial court find appellant’s guilt beyond a reasonable doubt?
In her first two points of error, appellant contends that the trial court denied her due process and due course of law in violation of the federal and state constitutions when it found appellant guilty of debit card abuse in appellate cause number 01-02-00318-CR because the trial court admitted on the record that it had a reasonable doubt regarding appellant’s guilt.
It is a fundamental legal precept that no person shall be deprived of life, liberty, or property without due process and due course of law. U.S. Const. amends. V, XIV; Tex. Const. art. I, § 19; Tex. Code Crim. Proc. Ann. art. 1.04 (Vernon 1977). Consistent with due process, the State is required to prove each element of an offense beyond a reasonable doubt. See Tex. Pen. Code Ann. § 2.01 (Vernon 2003); Tex. Code Crim. Proc. Ann. art. 38.03 (Vernon Supp. 2004). In support of her contention that she was deprived of due process and due course of law, appellant relies on the following statement of the trial court: “Do I have a reasonable doubt? The truth of the matter is I do.” Thus, the issue as presented on appeal is not whether the evidence supports a finding that appellant committed debit card abuse beyond a reasonable doubt; rather, the issue is whether the trial court convicted appellant even though it possessed a reasonable doubt about appellant’s guilt.
Because the trial court was the sole trier of fact, we are not at liberty to disturb any finding that is supported by the record. Green v. State, 615 S.W.2d 700, 707 (Tex. Crim. App. 1980). In reviewing the record, we agree with the State that the trial court’s remark must not be viewed in isolation, but rather within the context of the record as a whole. The record shows that the trial court was aware that it must find appellant’s guilt beyond a reasonable doubt. The record also includes a lengthy recitation by the trial court explaining why it believed the evidence supported a finding that appellant was the person who had taken the complainant’s debit card on June 12. In addition, immediately after it made the comment that appellant now relies on, the trial court stated that it believed that appellant had “planned out” the offense and that based on the evidence presented, the court believed that appellant was the type of person who was capable of committing the acts that formed the basis of the offense. In spite of the quoted passage relied on by appellant, the record demonstrates that the trial court found appellant guilty of debit card abuse beyond a reasonable doubt.
We overrule appellant’s first and second points of error.
B. Did the Trial Court Improperly Consider Appellant’s Deferred Adjudication Status?
In her third and fourth points of error, appellant complains that her federal and state due process and due course of law rights were violated in both cause numbers when the trial court considered her deferred adjudication status to impeach appellant’s testimony.
1. Appellate cause number 01-02-00319-CR
To the extent that appellant’s third and fourth points of error complain of the trial court’s decision to adjudicate appellant’s guilt for theft in appellate cause number 01-02-00319-CR, we recognize that the Court of Criminal Appeals has held that an appellant whose deferred adjudication community supervision has been revoked, and who subsequently has been adjudicated guilty of the original charge, may not raise on appeal contentions of error in the adjudication of guilt process. Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999) (holding that Code of Criminal Procedure article 42.12, section 5(b) prohibits defendant from raising claim of error in adjudication of guilt process); Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992) (stating that even if appellant’s right to counsel had been violated, he could not use direct appeal as vehicle by which to seek redress); see also Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2004). As such, this Court is deprived of jurisdiction to consider an appeal from the trial court’s decision to adjudicate guilt. Connolly, 983 S.W.2d at 741; Phynes, 828 S.W.2d at 2. Appellant has not provided any argument that would prevent application of this rule to her appeal of the theft conviction. Accordingly, we dismiss the appeal in appellate cause number 01-02-00319-CR.
2. Appellate cause number 01-02-00318-CR
We now turn to appellant’s argument in points of error three and four as they relate to the trial court’s determination that appellant was guilty of debit card abuse, appellate cause number 01-02-00318-CR. Appellant points out that the trial court remarked during its discussion of the evidence that the court did not find appellant’s testimony credible because appellant was on deferred adjudication for theft. Appellant argues that an accused must be tried only for the offense of which she is charged and not for being a criminal generally. In her briefing, appellant contends that “the trial court, by its own statements, improperly considered Appellant’s status of deferred adjudication for the offense of theft in assessing Appellant’s character for truthfulness, depriving her of a fair determination of her guilt for the alleged offense of credit [sic] card abuse and the allegations in the motion to adjudicate, in direct violation of this basic rule.” In support of this contention, appellant argues that the trial court should not have considered her deferred adjudication status because it was inadmissible character evidence under Rule of Evidence 404 and was likewise inadmissible for impeachment purposes under Rules of Evidence 608 and 609.
Appellant’s third and fourth points of error are initially stated as complaining that the trial court violated her constitutional rights of due process and due course of law when it considered appellant’s deferred adjudication status in assessing appellant’s credibility. However, the argument and authority offered by appellant in support of these points focuses on whether the trial court abused its discretion in admitting evidence of her deferred adjudication status. Thus, it is unclear whether appellant contends error occurred when the trial court admitted the evidence of her deferred adjudication status or whether the complained-of error occurred when the trial court considered the evidence in assessing appellant’s credibility.
Regardless of which alleged error she complains, appellant has failed to preserve error. To preserve error on appeal, an appellant must first present the complaint to the trial court by a timely request, objection, or motion, and obtain a ruling. Tex. R. App. P. 33.1(a). A complaint at the trial court level informs the trial judge of the nature of the issue and affords him or her the opportunity to rule. See Saldano v. State, 70 S.W.3d 873, 887 (Tex. Crim. App. 2002). With few exceptions not applicable here, even constitutional complaints may be waived by the failure to raise a timely objection in the trial court. See id. at 886-89. In this case, appellant did not object to the admission of the evidence of her deferred adjudication status and did not object, file a motion for new trial, or otherwise alert the trial court to her complaint raised on appeal that the trial court “abused its discretion” and violated her constitutional rights of due process and due course of law when the court considered appellant’s deferred adjudication status in evaluating appellant’s credibility in the debit card abuse case.
Moreover, appellant expressly agreed to have the trial court hear the motion to adjudicate guilt for the theft offense and the trial on the merits for the debit card abuse offense in a consolidated proceeding. Thus, during the joint proceeding, the trial court was necessarily presented with evidence regarding appellant’s deferred adjudication status. The record reveals no request by appellant to limit the court’s consideration of the evidence that she was on deferred adjudication for theft to the trial court’s determination of the motion to adjudicate guilt. Cf. Garcia v. State, 887 S.W.2d 862, 878 (Tex. Crim. App. 1994) (holding that, in jury trials, once evidence is received without proper limiting instruction, it becomes part of general evidence in case and may be used as proof to full extent of its rational persuasive power). Accordingly, appellant has waived the complaints she raises in her third and fourth points of error. Tex. R. App. P. 33.1(a).
We overrule appellant’s third and fourth points of error.
Conclusion
We dismiss the appeal in 01-02-00319-CR for want of jurisdiction. We affirm the judgment of the trial court in appellate cause number 01-02-00318-CR.
Laura Carter Higley
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Higley.
Do not publish. Tex. R. App. P. 47.2(b).