In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-05-00208-CR
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EX PARTE:
JULIO MARTINEZ
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Original Habeas Corpus Proceeding
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Before Morriss, C.J., Ross and Carter, JJ.
Opinion by Justice Ross
O P I N I O N
          On September 19, 2005, Julio Martinez filed with this Court an original application for writ of habeas corpus following his conviction for felony driving while intoxicated. See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon 2005) (noncapital, post-conviction, felony writ application); and Tex. Pen. Code Ann. § 49.09 (Vernon Supp. 2004â2005). Martinez claims (1) he received ineffective assistance of counsel at trial, (2) he received ineffective assistance of counsel on appeal, and (3) the evidence is insufficient to support his conviction. We conclude we are not legally authorized to consider Martinez' application for writ of habeas corpus, and we dismiss this original proceeding for want of jurisdiction.
I. Procedural History of the Underlying Felony DWI Conviction
          On July 8, 2003, Martinez pled guilty in the 102nd Judicial District Court of Bowie County, Texas, to the offense of driving while intoxicatedâsubsequent offense. See Tex. Pen. Code Ann. § 49.04 (Vernon 2003), § 49.09. The terms of Martinez' plea agreement called for his sentence to be set at ten years' imprisonment, a plea agreement which the trial court accepted and followed. Martinez then timely appealed his conviction to this Court. Ultimately, this Court dismissed the appeal pursuant to Texas Rules of Appellate Procedure 25.2(a)(2), 25.2(d), and 37.1 because the trial court did not certify Martinez had the right to appeal. Martinez v. State, No. 06-03-00184-CR, slip op. at 2 (Tex. App.âTexarkana Nov. 4, 2003, pet. denied) (mem. op.) (not designated for publication). Our prior opinion did not address whether Martinez' plea agreement would bar consideration of any potential appellate issues. Id.; and see Tex. Code Crim. Proc. Ann. art. 26.13(a)(3) (Vernon Supp. 2004â2005).
II. The Procedural History of Martinez' State and Federal Habeas Applications
          The habeas record submitted by Martinez indicates he has filed an application for writ of habeas with the federal district court. See Martinez v. TDCJ, No. 5:04-CV-00240-DF-CMC (E.D. Tex.). The federal application apparently raises the same issues Martinez now presents in his state habeas application to this Court. The federal district court did not adjudicate the merits of Martinez' application, but instead issued a ninety-day stay during which Martinez must submit these to a state court for review. Cf. Zarvela v. Artuz, 254 F.3d 374, 377 (2d Cir. 2001) (federal district judge has discretion to stay habeas application while applicant litigates unexhausted claim in state court); Delaney v. Matesanz, 264 F.3d 7, 15 n.5 (1st Cir. 2001) (recommending federal district courts follow stay procedure when confronted with claim that has not been previously reviewed by state court); Hill v. Anderson, 300 F.3d 679, 683 (6th Cir. 2002) (adopting Zarvela approach to treatment of unexhausted Atkins claim). The Texas Court of Criminal Appeals has recently approved this two-forum procedure, modifying its previous prohibition against Texas district courts considering habeas applications when the applicant has an application simultaneously pending in federal court. Ex parte Soffar, 143 S.W.3d 804, 806â07 (Tex. Crim. App. 2004) (modifying prohibition against parallel writs embodied by Ex parte Powers, 487 S.W.2d 101 (Tex. Crim. App. 1972)).
III. This Court Lacks Jurisdiction To Review a Post-Conviction Writ Application
          Our original and appellate jurisdiction is limited by the Texas Constitution and by statutes promulgated by the Texas Legislature and approved by the Governor. The Texas Constitution grants this Court original jurisdiction only in cases where specifically prescribed by law. Tex. Const. art. V, § 6. As it relates to the case now before us, we are not among the list of courts authorized to grant relief pursuant to post-conviction writs of habeas corpus. Tex. Code Crim. Proc. Ann. art. 11.05 (Vernon 2005). We also are not authorized under Tex. Gov't Code Ann. § 22.221 (Vernon Supp. 2004) to consider an original, post-conviction application for writ of habeas corpus. Our law requires post-conviction applications for writs of habeas corpus, for felony cases in which the death penalty was not assessed, to be filed in the court of original conviction, made returnable to the Texas Court of Criminal Appeals. Tex. Code Crim. Proc. Ann. art. 11.07(3)(a), (b) (Vernon 2005).
          As we are without jurisdiction to consider Martinez' originally-filed post-conviction application for writ of habeas corpus, we must dismiss his application. See Watson v. State, 96 S.W.3d 497, 500 (Tex. App.âAmarillo 2002, pet. ref'd) (dismissing two points of error within appeal of denial of motion for post-conviction DNA testing because those points of appeal amounted to request for original habeas relief, which intermediate appellate court was without jurisdiction to grant). If Martinez wishes to have his application reviewed by a state court of competent jurisdiction, his post-conviction application should be submitted to the court of original conviction, and he should make his application returnable to the Texas Court of Criminal Appeals in compliance with Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon 2005).
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          For the reason stated, we dismiss this proceeding for want of jurisdiction.
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                                                                           Donald R. Ross
                                                                           Justice
Date Submitted:Â Â Â Â Â Â September 26, 2005
Date Decided:Â Â Â Â Â Â Â Â Â September 27, 2005
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In The
Court of Appeals
                       Sixth Appellate District of Texas at Texarkana
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                                               ______________________________
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                                                            No. 06-10-00211-CR
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                                      KRYSTIN STEWART, Appellant
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                                                               V.
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                                    THE STATE OF TEXAS, Appellee
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                                         On Appeal from the County Court at Law #2
                                                             Hunt County, Texas
                                                       Trial Court No. CR1000601
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                                         Before Morriss, C.J., Carter and Moseley, JJ.
                                             Memorandum Opinion by Justice Carter
                                                     MEMORANDUM OPINION
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           A jury convicted Krystin Stewart of theft of property valued between $50.00 and $500.00, and she was sentenced to confinement for 120 days in the Hunt County Jail. On appeal, Stewart complains that the evidence was insufficient to support the trial courtÂs judgment.[1] We affirm the judgment of the trial court.
I. Â Â Â Â Â Â Â Standard of Review
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           In reviewing the legal sufficiency of the evidence, we review all the evidence in the light most favorable to the juryÂs verdict to determine whether any rational jury could have found the essential elements of theft in an amount between $50.00 and $500.00 beyond a reasonable doubt.  Brooks v. State, 323 S.W.3d 893, 902 n.19 (Tex. Crim. App. 2010) (4Â1Â4 decision) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.ÂTexarkana 2010, pet. refÂd) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)).  Our rigorous legal sufficiency review focuses on the quality of the evidence presented.  Brooks, 323 S.W.3d at 917Â18 (Cochran, J., concurring).  We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury Âto fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.  Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318Â19).
           Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge.  Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury charge Âsets out the law, is authorized by the indictment, does not unnecessarily increase the StateÂs burden of proof or unnecessarily restrict the StateÂs theories of liability, and adequately describes the particular offense for which the defendant was tried.  Id. Â
           In this case, Stewart committed theft if she unlawfully appropriated property with the intent to deprive the owner of property. Tex. Penal Code Ann. § 30.03(a) (West 2011). Appropriate means Âto acquire or otherwise exercise control over property other than real property. Tex. Penal Code Ann. § 31.01(4)(B) (West 2011). The appropriation was unlawful if it was without the effective consent of the owner. Tex. Penal Code Ann. § 30.03(b) (West 2011). The theft offense was a class B misdemeanor if the value of the property exceeded $50.00, but was less than $500.00. Tex. Penal Code Ann. § 31.03(e)(2)(a)(i) (West 2011).
II. Â Â Â Â Â Legally Sufficient Evidence Supported the Trial CourtÂs Judgment
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           The State alleged that the theft occurred at BurkÂs Outlet. On the day of trial, two witnesses from BurkÂs Outlet testified. District loss prevention manager, Daniel Roacho, encountered Stewart and co-actor, Cristal Mariucci, on the day of the theft. Roacho testified;
The first thing [Stewart] did is she came around to . . . the purse area. And IÂveÂI saw her select a black purse. She looked at it for a while and then she startedÂshe put that over her shoulder. She also had a pink purse with her as well. So she carried both purses as she went throughout the store and started selecting other merchandise. . . . And she was selecting some jewelry and then she would go into the womanÂs department where she selected some other clothing items as well.
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Roacho initially believed that Stewart was shopping alone, but soon it became apparent that she was with Âthis other lady that was acting really nervous. Roacho kept his eye on Stewart and Mariucci as they perused the store separately. He testified, Â[Stewart] handed the pink purse over to [Mariucci] and they both walked and selected more merchandise, more clothing items. Roacho continued:
At that point, [Stewart] went into the fitting room with the merchandise that she had selected as well as the black bag that she had with her.  [Mariucci] wentÂfollowed her in there. As she went inÂthey both went in the fitting room. And then the Defendant came out of that stall that they were in, and came out and went into another one with clothing items as well as the black purse. At that point, she closed the door to the fitting room and the other subject came out and just, kind of, waited around outside for her. . . . At that point [Mariucci] walks into the fitting room with [Stewart] because she hadnÂt completely came out yet.  They were talking. [Mariucci] . . . had a few clothes in her hand, handed the clothes back to the Defendant as well as the pink purse that she was carrying for her. The Defendant turned around and gave [Mariucci] the black purse, which was now packed, and they both started walking up towards the front.Â
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RoachoÂs Âobservation was that the clothes were stuffed into the bag by Stewart. Next, Â[t]hey both approached the front of the register. The one person with the black bag just startÂdoes not even bother to go to the register, starts walking out the door while [Stewart] goes up to the register and attempts to pay for the merchandise that was never concealed. Roacho followed and confronted Mariucci as she exited the store and was about to enter a vehicle. He led Mariucci back to the loss prevention office, where both she and Stewart apologized to Roacho for stealing, turned over the stolen merchandise, and pleaded for forgiveness. Roacho recovered the stolen items.
           BurkÂs Outlet store manager, LaSonja Balfour, was called to the loss prevention office after Stewart and Mariucci were apprehended. Balfour confirmed StewartÂs admission to the theft and conducted an inventory of items stolen. The items taken included the black purse, two items of jewelry, two Âtops, jeans, a fragrance, a Âbath/body item, and a Âmis[s] bottom. The monetary value of the items totaled $88.24.Â
           In addition to this testimony, the jury watched the in-store security video confirming RoachoÂs recollection of the events. The video was clear, followed Stewart as she wandered throughout BurkÂs Outlet, and zoomed in on items she picked up and carried.Â
            When viewed in a light most favorable to the verdict, we find the evidence legally sufficient for a rational jury to conclude that Stewart committed theft of property in an amount greater than $50.00, but less than $500.00. Therefore, we overrule StewartÂs point of error.Â
III. Â Â Â Â Conclusion
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           We affirm the trial courtÂs judgment.
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                                                                       Jack Carter
                                                                       Justice
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Date Submitted:Â Â Â Â Â Â Â Â Â July 21, 2011
Date Decided:Â Â Â Â Â Â Â Â Â Â Â Â July 28, 2011
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[1]In a separate point of error, Stewart also complained that a DVD recording of the theft, which was admitted as evidence and played in front of the jury, had been Âdestroyed or corrupted so badly that it cannot be viewed and is unavailable for appellate review. Based upon StewartÂs assertion, and due to our inability to initially play the exhibit, we internally abated this appeal Âuntil either (1) we have heard from counsel that the data on the DVD has been recovered and the parties agree to the content thereon; (2) the data on the DVD has been recovered, but the parties do not agree to the content thereon; or (3) the data on the DVD cannot be recovered. Thereafter, we received a letter signed by both parties stating that the DVD Âduplicate was located in the defendantÂs co-actorÂs case file. The state and the defense have had a chance to review this copy and can verify that this copy is a true and accurate representation of the video that was on the damaged DVD. Because StewartÂs complaint has been resolved, we overrule this point of error as moot.