Opinion issued August 31, 2005
In The
Court of Appeals
For The
First District of Texas
NO. 01-04-00469-CR
CHANDRA MONIQUE THORNTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from County Criminal Court at Law No. 4
Harris County, Texas
Trial Court Cause No. 1207976
MEMORANDUM OPINION
A jury convicted appellant, Chandra Monique Thornton, of the class A misdemeanor of theft of property valued at more than $500 and less than $1,500, and the trial court assessed her punishment at one year the Harris County Jail, suspended for 18 months of community supervision, and a $2,000 fine. We determine: (1) whether the evidence was legally and factually insufficient to establish the identity and value of the stolen property; and (2) whether appellant received effective assistance of counsel at the guilt stage of trial based on trial counsel’s failure to make a hearsay objection or ask for a jury charge on spoliation. We affirm.
Legal Sufficiency
In her first point of error, appellant contends that the evidence was legally insufficient to prove that she committed theft. Specifically, appellant contends that this Court may not consider one witness’s hearsay statement to support the verdict and that the evidence, without considering the statement, is insufficient to support appellant’s conviction. Moreover, appellant contends that the State failed to prove what, if any, items were stolen, that the value of the stolen items was more than $500, and that Christine Malecki owned the items allegedly stolen.
We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine if any rational fact finder could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). In a legal sufficiency review, we may not substitute our own judgment for that of the fact finder. Id. When inadmissible hearsay is admitted without objection, it is probative and is treated the same as any other evidence in a sufficiency context. Tex. R. Evid. 802; Chambers v. State, 711 S.W.2d 240, 247 (Tex. Crim. App. 1986). See Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999).
A person commits the offense of theft if she unlawfully appropriates property with the intent to deprive the owner of property, without the effective consent of the owner. Tex. Pen. Code Ann. § 31.03(b)(1) (Vernon Supp. 2004-2005). The State charged appellant with a Class A misdemeanor, so that it had to prove the value of the stolen property was more than $500, but less than $1500. See Tex. Pen. Code Ann. § 31.03(e)(3) (Vernon Supp. 2004-2005). On December 5, 2003, appellant was arrested for shoplifting 17 items of clothing worth approximately $800 from Dillard’s department store. At trial, the State presented the testimony of Herbert Mitchell, a surveillance camera operator at Dillard’s. Mitchell testified that he began monitoring appellant with a surveillance camera when he noticed her gathering many articles of clothing and placing them over her arm while suspiciously watching store personnel. After appellant took the merchandise that she had gathered to a different department, Mitchell left the surveillance room and followed appellant to that department, where he saw her enter a dressing room with one shopping bag and approximately 10 to 12 articles of merchandise in her arms. Mitchell stated that when appellant emerged from the dressing room after less than five minutes, she was carrying two bags, packed full of clothing, and was carrying nothing in her arms. Mitchell stated that it would have taken appellant much longer than five minutes to try on 10 to 12 articles of clothing. After Mitchell saw appellant leave the dressing room with two full bags and proceed toward the store’s exit, he called the surveillance room and instructed a camera operator to summon a police officer to detain appellant.
Deputy Thomas Kula responded to the call to detain appellant for shoplifting. After viewing the surveillance videotape of appellant, Deputy Kula walked onto the store floor and observed appellant leaving the building. Appellant passed approximately 10 cash registers on her way out of the building; she did not stop to pay for the merchandise at any of the registers. Deputy Kula approached appellant on the sidewalk outside the store and asked her if she had taken merchandise for which she had not paid or if she could show a receipt for the merchandise. Appellant did not produce a receipt. Deputy Kula looked inside appellant’s shopping bags and noticed some articles of clothing without proof-of-purchase labels affixed, which indicated to him that the merchandise had been stolen because a proof of purchase label is placed on the price tag of each item at the time of purchase. The articles of clothing Deputy Kula found in the bag included three jumpers, three shirt and pant sets, two shirts, three pairs of pants, two coats, three ties, and socks. These items’ worth totaled $803.93. However, the values of those items alleged in the indictment that were recovered by Deputy Kula were: two coats—$170.00; three ties—$118.50; three pair of pants—$257.50; and one jumper—$18.43. The total of these items is $564.43. Viewing the evidence in the light most favorable to the verdict, the jury could have reasonably found that appellant appropriated property, by acquiring or otherwise exercising control, with the intent to deprive the owner of the property, and that the value of the property was more than $500 and less than $1500.
Appellant has insufficiently briefed her contention that the State failed to prove Malecki owned the items. See Tex. R. App. P. 33.1.
We overrule appellant’s first point of error.Factual Sufficiency
In her second point of error, appellant contends that the evidence is factually insufficient to support her conviction for theft. We review the factual sufficiency of the evidence by reviewing all of the evidence neutrally, not in the light most favorable to the prosecution. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In a factual-sufficiency review, we may not substitute our own judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). The Court of Criminal Appeals recently discussed the factual sufficiency standard in Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).
There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so [that] the guilty verdict should not stand. This standard acknowledges that evidence of guilt can “preponderate” in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can “outweigh” the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.
Id. at 484-85. We must consider the most important evidence that appellant claims undermines the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
Appellant contends that the evidence is factually insufficient because (1) the surveillance videotape of appellant merely shows her shopping, not stealing; (2) discrepancies exist in Mitchell’s testimony regarding his completion of a form listing suspicious behavior and video records; (3) the only evidence to show that appellant did not leave merchandise in the dressing room was hearsay; (4) inconsistencies exist in Deputy Kula’s testimony regarding whether proof of purchase labels were affixed to the merchandise in appellant’s shopping bag; and (5) the State failed to call two obvious witnesses and preserve the merchandise it alleged was stolen, produce the entire surveillance videotape of appellant, or produce the store’s written policy regarding proof of purchase labels. Appellant relies on the foregoing “evidence” to assert that the proof of theft was so weak as to undermine confidence in the jury’s finding of guilt.
Appellant contends that the surveillance videotape merely shows appellant shopping; appellant contends that she looked around “in a manner surely as consistent with an overburdened shopper looking for an assistant as with a shoplifter.” While appellant may be correct as to the limited portion of the incident portrayed in the surveillance videotape, other testimony established that appellant acted suspiciously at times not shown in the videotape. Moreover, the jury determines the credibility and demeanor of witnesses and we must give deference to the jury’s verdict. Zuniga, 144 S.W.3d at 481. Thus, the jury’s decision is not manifestly unjust merely because the jury resolved conflicting views of evidence in favor of the State. Appellant also contends that Mitchell’s testimony is unreliable because he inaccurately filled out a surveillance form indicating that appellant had committed a suspicious act while being monitored and that a camera recorded appellant’s entering and exiting the dressing room area when no such footage could be seen on the videotape at trial. Mitchell testified that he signed his initials next to text reading: “Visual observations and recording of concealment of items or other action such as removing, switching, price tags, sensor devices, staging merchandise, or pulling an empty bag or sack out of pocket. These actions can indicate an intent to steal.” At trial, Mitchell testified that he observed appellant looking around in a suspicious manner while selecting merchandise and removing some items of clothing from their hangers. Appellant did not present any witnesses or evidence at trial to controvert Mitchell’s testimony that appellant was acting in a suspicious manner or to show that the form’s list of suspicious acts was exhaustive. Mitchell also testified that another camera operator was responsible for operating the camera that would have captured footage of appellant entering and exiting the dressing room area after he left the surveillance room, but apparently had failed to do so. Mitchell testified, however, that he personally observed appellant enter and exit the dressing room. The jury, which heard Mitchell’s testimony, was in the best position to determine his credibility and demeanor in court, and, on appeal, we will defer to the jury’s assessment of his credibility. Zuniga, 144 S.W.3d at 481.
Appellant also contends that the only evidence that she did not leave the gathered merchandise in the dressing room, rather than having placed it in her shopping bags, was inadmissible hearsay. Appellant asserts that this hearsay evidence is so unreliable that, even though it was not objected to, its admission should undermine confidence in the verdict. However, Mitchell testified that he observed appellant enter the dressing room with one bag and numerous articles of clothing. Mitchell also observed appellant leave the dressing room area carrying no items in her arms but carrying two full shopping bags packed with clothing. When the bags were unpacked, they contained 17 items worth $803.93. Thus, even without considering the alleged hearsay statement, evidence still existed to show that appellant left the dressing room with the items she carried with her into the dressing room. Nevertheless, it is well settled that unobjected to hearsay is probative. See Poindexter v. State, 153 S.W.3d 402, 406-07 (Tex. Crim. App. 2005).
Appellant also contends that Deputy Kula’s testimony was inconsistent regarding whether any of the items he saw while looking inside appellant’s shopping bag had proof of purchase labels affixed to their tags. On direct examination, Deputy Kula testified that, when he looked in appellant’s shopping bag outside the store, he noticed “some articles of clothing without a POP label on it.” During cross-examination, Deputy Kula testified that some of the items in appellant’s shopping bag “may have had POP labels on them and some of them could have not.” Furthermore, Deputy Kula explained that even items that did have proof of purchase labels affixed could have been stolen. Christine Malecki, operations manager of Dillard’s, corroborated this testimony and explained that, after an item is purchased and returned, the proof of purchase label is not removed; thus, an item on the store floor could already have a proof of purchase label affixed to its tag before a person purchased the item. Deputy Kula’s testimony did not necessarily contain any inconsistency regarding whether the merchandise had proof of purchase labels affixed to their tags and explained that the items still could have been stolen regardless of whether they had proof of purchase labels attached. The determination of what weight to give contradictory testimonial evidence is within the sole province of the jury, as it turns on an evaluation of credibility and demeanor. Zuniga, 144 S.W.3d at 481.
Appellant also asserts that Deputy Kula did not promptly reveal that appellant maintained her innocence while being detained and that she had asked a store manager to scan the proof of purchase labels to prove that she had previously purchased the merchandise. The jury was free to believe all or any part of the testimony of the State’s witnesses and to judge those witnesses’ credibility. A court of appeals must show deference to such a jury finding. Id.
Lastly, appellant contends that the State failed to call witnesses that it should have called and failed to preserve physical evidence that would have cast light on the facts of this case. We must review the factual sufficiency of the evidence from the same perspective as did the jurors and, therefore, cannot consider materials that were not admitted at trial. Miles v. State, 918 S.W.2d 511, 512 (Tex. Crim. App. 1996).
Examining all of the evidence neutrally, we conclude that the proof of guilt was not too weak to support the finding of guilt beyond a reasonable doubt, nor was the contrary evidence so strong that the beyond-a-reasonable-doubt standard would not have been met. Accordingly, we overrule appellant’s second issue.
Ineffective Assistance of Counsel
In her third point of error, appellant contends that she was deprived of effective assistance of counsel because trial counsel failed to make an objection to hearsay testimony or ask for a jury charge on spoliation.
The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687-96, 104 S. Ct. 2052, 2064-69 (1984). See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Appellant must show both that (1) counsel’s performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment, and (2) there is a reasonable probability that, but for counsel’s error or omission, the result of the proceedings would have been different, i.e., sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 687-96, 104 S. Ct. at 2064-69. Effective assistance of counsel does not mean errorless counsel. See Saylor v. State, 660 S.W.2d 822, 824 (Tex. Crim. App. 1983). In determining whether counsel was ineffective, we consider the totality of the circumstances of the particular case. Thompson, 9 S.W.3d at 813.
It is the defendant’s burden to prove ineffective assistance of counsel by a preponderance of the evidence. Thompson, 9 S.W.3d at 813. A defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). An appellate court will not find ineffectiveness based on speculation. Henderson v. State, 29 S.W.3d 616, 624 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d); Gamble, 916 S.W.2d at 93. Assertions of ineffective assistance of counsel must be firmly founded in the record. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002).
At trial, appellant’s counsel questioned all of the State’s witnesses vigorously and argued in favor of the trial court granting community supervision for appellant. Appellant disregards this totality of representation and focuses on two discrete failures of counsel at trial. Even if appellant could establish that her trial counsel was deficient by failing to object to the alleged hearsay testimony or by failing to request a charge on spoliation, appellant has not shown ineffective assistance. Because appellant did not file a motion for new trial, there is no evidence in the record of why appellant’s trial counsel did not object or ask for a charge on spoliation. To find trial counsel ineffective would call for speculation, which we will not do. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1999); Gamble, 916 S.W.2d at 93; see also Henderson v. State, 29 S.W.3d 616, 624 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (holding trial counsel was not ineffective when record was silent as to trial counsel’s reasons for declining to request instruction on concurrent causation).
Appellant, however, contends that hers is the rare case in which the record shows there could be no possible strategy justifying trial counsel’s omissions. See Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex. Crim. App. 2000). As for the spoliation instruction, the duty to preserve evidence is limited to evidence that possesses an exculpatory value apparent before the evidence was destroyed. Herbert v. State, 836 S.W.2d 252, 253 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d). A defendant must also show bad faith on the part of the State in failing to preserve potentially useful evidence and that the lost evidence was favorable and material. Id. at 254. Because there was no evidence of the State’s acting in bad faith, a required element of spoliation, appellant has not shown she was entitled to a spoliation instruction. In regard to the lack of hearsay objection, it is possible that trial counsel had spoken to the declarant who had other, more incriminating testimony to give. The record does show trial counsel talked to Ms. Maleski the day before trial. Under these conditions, trial counsel may not have wanted to object to the hearsay and run the risk of the State locating and producing the declarants. At any rate, where, as here, appellant has not established per se deficient representation, attempts to determine counsel’s strategy are clearly speculative.
We overrule appellant’s third point of error.
Conclusion
We affirm the judgment of the trial court.
Tim Taft
Justice
Panel consists of Justices Taft, Alcala, and Higley.
Do not publish. Tex. R. App. P. 47.4.