Affirmed and Memorandum Opinion filed May 28, 2009.
In The
Fourteenth Court of Appeals
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NO. 14-07-00703-CR
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CINDY LEE JAHANIAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court
Harris County, Texas
Trial Court Cause No. 1059702
M E M O R A N D U M O P I N I O N
Appellant Cindy Lee Jahanian was found guilty of engaging in organized criminal activity with family members and others to commit, and conspire to commit, the offense of theft of property valued at over $200,000. The scheme involved switching the universal product codes (AUPCs@) or bar codes on certain items sold at stores such as Target, Wal-Mart, Home Depot, and Lowe=s with the UPC codes for lower-priced items, purchasing the original items for less than their actual sales price, and then selling them on eBay, an internet auction site. Cindy was sentenced to thirty years= confinement in the Texas Department of Criminal Justice, Institutional Division.
On appeal, Cindy raises four issues. In the first, she contends the trial court erred by failing to instruct the jury on value as provided in section 31.08 of the Texas Penal Code, and that this error caused egregious harm because the value of the stolen property was a contested issue and, without an instruction, the jury was unable to determine whether the evidence supported the aggregate value alleged. In her second and third issues, Cindy contends the evidence is legally and factually insufficient to support a conviction for theft of property of over $200,000. In her fourth issue, Cindy contends that her lawyer rendered ineffective assistance for failing to request an instruction on value under Penal Code section 31.08. We affirm.
Factual and Procedural Background
Cindy does not dispute the evidence that she participated in organized criminal activity. The evidence showed that from January 2004 through February 2006, Cindy and other members of the Jahanian family, including Bahram AB.J.@ Jahanian, Cindy=s husband, and their son and daughter, Nicholas Jahanian and Krystal Jahanian, participated in a theft scheme to unlawfully obtain merchandise from stores throughout Texas and to sell the merchandise for profit though Nicholas Jahanian=s eBay account named ABwatchers.@[1] Others also participated in the scheme, including three accomplices who testified during the trial, Valerie Baker, Elizabeth Espirit, and Richard Schroeder. The stores targeted in the scheme included Target, Wal-Mart, Home Depot, and Lowe=s. Representatives of these stores were named as the owners of the property in the indictment against Cindy.
Cindy=s husband, B.J., was confined in a Texas prison during the time the theft scheme operated. Despite his confinement, he instructed the others as to how to carry out the scheme during prison visits with Nicholas or by mail sent from prison to Cindy at her residence, which she shared with Krystal Jahanian, located at 19615 Spanish Needle in Harris County. B.J.=s advice included telling them to stay away from Target stores, to go out of town more, and to use more than two drivers. He also did not want Nicholas involved in going to the stores.
The scheme operated as follows. Cindy, Krystal, and an accomplice, usually Elizabeth Espirit but sometimes Richard Schroeder, would drive to one of the stores somewhere in Texas, and Cindy and Krystal would enter the store with labels showing UPC codes for low-end or low-priced merchandise that they or someone else in the theft ring had purchased or stolen for the purpose of getting the bar codes.[2] Once inside the store, Cindy and Krystal located usually at least two high-end items such as MP3 players, faucets, cameras, phones, DVD recorders, or printers.[3] While one acted as lookout, the other placed the bar-code labels for the lower-priced merchandise over the bar code shown on the high-end items so that the desired merchandise could be purchased for a substantially lower price.
Once the bar codes were switched, Cindy or Krystal placed a cell-phone call to the accomplice, who separately entered the store, and gave the accomplice a description of the desired merchandise and its location. Cindy and Krystal then left the store, and the accomplice, who was also permitted to purchase a very low-priced item for personal use at the ring=s expense, would locate the merchandise and attempt to check out with it. When possible, the accomplice would take the merchandise to a check-out counter occupied by a young, seemingly inexperienced clerk. When the merchandise rang up at the lower price shown by the switched bar code, the accomplice paid for it and the personal item, left the store, and returned to the car. The three would then either go to another store or quit for the day. Cindy and Krystal would then store the stolen merchandise either at their home or a storage unit they maintained.
To dispose of the merchandise, Nicholas Jahanian sold the items on eBay using his eBay account, known as ABwatchers,@ and sent the merchandise to whomever had purchased it.[4] Nicholas then distributed the profits among himself and the other members of the ring, including Cindy and Krystal. The eBay business prospered and supported Nicholas, Cindy, and Krystal.
Doug Osterberg, an investigator in the Harris County District Attorney=s Office Special Crimes Division, testified extensively about his involvement in the investigation of the theft ring and its operation. He also provided testimony about the value of the stolen property. Among other things, Osterberg testified that records obtained from eBay showed that the types of items being sold through the Bwatchers account were MP3 players, faucets, electric razors, cordless phones, print servers, and cameras, most of which were listed as Anew in box.@ For the period that eBay records were available, October 2004 to the end of October 2005, Bwatchers sold 2,109 items for a total of about $258,000. At this point, Osterberg decided to contact the loss-prevention departments of several of the stores for assistance. Store personnel and additional officers conducted surveillance on the ring, and the jury was shown security-camera videos of the ring=s operation.
On cross-examination, Osterberg explained that he went over the records of the Bwatchers account with loss-prevention personnel, and although they were able to show that there were losses in the areas of those types of products, they could not say that specific items on the list actually came from their stores. Osterberg agreed that the only items actually traced back to specific stores were those that the ring was observed stealing during surveillance. He also agreed that the eBay list did not show how much the Jahanians might have paid to acquire the items originally; it showed only the price that eBay customers paid Bwatchers for the items.[5] He also admitted that some of the merchandise came from other stores not included in the case.
Osterberg further testified that his office calculated the amount of the stores= losses primarily by using the eBay records. When asked if he knew what the ring actually paid for the items, he explained that the sales price was usually either about $27 or $7, depending on which of two fake bar codes they decided to use. The bar codes were copied from Lexmark ink printer cartridges and water filters the ring purchased. Osterberg stated that his testimony was based on information from other participants in the ring and evidence seized from Cindy=s and Nicholas=s homes and a storage unit Cindy controlled.
Larry Boucher, another investigator with the Harris County District Attorney=s Office, and Osterberg=s direct supervisor, also testified concerning his participation in the surveillance of Cindy, Krystal Jahanian, and Elizabeth Espirit on January 26, 2006. The surveillance captured both successful and unsuccessful attempts to carry out the theft ring=s operation. On that day, Boucher observed the group first going to a Target in Harris County, where their activities were captured on video. Boucher testified that the video showed Cindy and Krystal enter the Target, examine a Kodak printer bundle, consisting of a camera and printer dock, priced at $249.99, and put two of them in a cart. Elizabeth Espirit entered after Cindy and Krystal, but ultimately they abandoned the effort and went to another Target store.[6]
After leaving the second Target store, the trio then went to a Wal-Mart in Brenham, where they were again captured on video. The video showed Cindy and Krystal going down an aisle where phones were sold, but they left without buying anything. Elizabeth Espirit separately entered the store, went to the same aisle, and picked up two boxes of Panasonic cell phones along with some children=s socks. She then went to a self-checkout aisle and attempted to scan the items, but when a cashier came over to assist her, the cashier saw that the phones were ringing up as $27.97. The cashier peeled off the UPC codes, and the phones rang up as $154.96. Espirit made an excuse and left the store without purchasing anything.
Boucher testified that the surveillance continued as the trio next went to a nearby Lowe=s store. There, after Cindy and Krystal went to an aisle containing water filters, Espirit later went to the same aisle, picked up four Brita water filters, and purchased them for $6.96 apiece, when their actual price was around $32 apiece. The trio then continued on to a Home Depot in Brenham. As before, they were captured on video, and Boucher described their activities. At the Home Depot, Cindy and Krystal went down an aisle where faucets were located, and Espirit entered the store separately and went to the same aisle, picked up two faucets, and checked out. The faucets rang up as water filters for $26.97 apiece. Boucher testified that the faucets were actually priced at $208. On cross-examination, Boucher admitted that the total amount of loss from the stores where merchandise was purchased, after subtracting what was paid, came to roughly $600. He also admitted that he did not see Cindy or Krystal switching the UPC codes, nor did he see them walk out of the stores with any merchandise. He also never came in contact with Nicholas Jahanian.
Pat Smith, also an investigator with the Harris County District Attorney=s Office, rode with Boucher during the surveillance. He testified that, after Cindy, Krystal, and Espirit left the Brenham Home Depot, they went to a Wal-Mart and a Lowe=s in Bryan. They left the Wal-Mart without any merchandise. At the Lowe=s, however, he observed Cindy and Krystal go to the plumbing aisle where they were Ahandling and looking at@ Delta brand faucets. He saw Krystal return a box to the shelf as Cindy talked on a cell phone. They left the aisle, but then returned and handled the boxes again, as Krystal talked on a cell phone. He then saw Espirit, who was talking on her cell phone, go directly to the same area, where she picked up the same boxes, put them in her basket, and purchased them. After the trio left the store, Smith spoke with the cashier and determined that they had purchased two Delta faucets retailing for $208 apiece for approximately $27 apiece. The tape register from the transaction reflected that Espirit purchased water filters, but Smith testified that was not what he saw her purchase, and a still photograph taken from video of the purchase also showed that she was buying a Delta faucet.
Smith also testified that, as a part of the investigation, he used his own eBay account to purchase a Delta faucet from Bwatchers. Emails confirmed that the purchase was shipped from Abaywatch@ at Cindy=s Spanish Needle address, and that Smith paid Anickjahanian@hotmail.com@ $157.50 for the Anew in box@ faucet. The return address on the packaging in which he received the faucet also reflected Cindy=s Spanish Needle address. On cross-examination, Smith admitted there was no way to determine where the faucet he bought from Bwatchers came from. He also testified that there was no way for retailers to trace an item purchased on eBay back to a particular store.
Valerie Baker, Nicholas Jahanian=s former girlfriend, testified that Nicholas eventually revealed to her the theft ring=s operation after the relationship grew more serious. Among other things, Baker testified that they often chose Wal-Mart and Target stores because they had young cashiers who did not know the price of electronics. The types of items she saw Cindy and Krystal deliver to Nicholas included shavers, paintball guns, faucets, phones, cameras, and other electronics. Baker testified that she helped Nicholas steal by assisting him in packaging the stolen items to be sent to purchasers. On cross-examination, Baker admitted that she never saw Nicholas, Cindy, or Krystal steal anything, and all her information concerning the theft ring=s operation came from Nicholas only. She also admitted that she and Nicholas sold some legitimate items on eBay and that they had joined a wholesalers club. She further admitted that she could not deny that Cindy or Krystal may have obtained items from places like flea markets or pawn shops to sell on eBay.
Dee Williams, a loss-prevention manager at Target, also participated in the surveillance of Cindy, Krystal, and Espirit on January 26, 2006. She testified about details of the ring=s operation from her observations and the videos. She also testified that, while visiting a Pasadena Target, she learned that two days earlier, on January 24, Cindy, Krystal, and Espirit attempted to carry out their operation at that store. Store video showed Cindy and Krystal entering the store, and Espirit entering shortly thereafter. Cindy and Krystal removed Kodak bundle packs from a shelf and went to the back of the store. Several minutes later, they returned the merchandise to the shelf. Espirit then picked up two Kodak bundle packs from the shelf and attempted to check out with them. The items, which were priced at $249.99 apiece, rang up as Lexmark printer cartridges for $27.99 apiece. The cashier saw that the items were not ringing up at the correct price and informed the loss-prevention team. She also peeled off the UPC codes and re-scanned the items at their correct price. Espirit did not purchase the items.
Williams further testified that the Jahanians= operation enabled them to actually pay as little as $6 for each stolen item, and that they could even make money on the purchases aside from just the sales on eBay. She explained that they would purchase a Lexmark printer cartridge costing $27 for $6 by switching the correct UPC code with the UPC code for a $6 water filter. Once the printer cartridge was obtained, the Jahanians would have a UPC code for that item to use to purchase the more expensive items like cameras, high-dollar phones, and shavers for $27 each. When they purchased a more expensive item for $27, they received a receipt showing the purchase of a Lexmark printer cartridge for $27. They would then use that receipt to return the printer cartridge (for which they actually paid $6) and obtain a refund of $27 (for a net profit of $21). Thus, Williams testified, the ring could actually make money on the Lexmark printer cartridge purchase. And, by employing this scheme, it cost the Jahanians $6 to steal a high-dollar item like a shaver, phone, or camera.
Williams also testified that the ring had made such a transaction at the Pasadena Target. She explained that video from that Target showed that a little less than an hour before Espirit attempted to purchase the Kodak printer bundles, Cindy was shown returning two Lexmark printer cartridges in exchange for cash totaling $57.50. From the original receipt, Williams was able to determine that the purchase was made on January 19, 2006, five days earlier, at a Target in San Antonio. Photographs from that store showed Espirit buying two shavers, priced at between $150 and $250, that rang up as Lexmark printer cartridges. That purchase generated the receipt Cindy used to return Lexmark printer cartridges in exchange for cash. Thus, Williams testified, the ring was able to purchase about $400 worth of merchandise for about $50, and then obtain a refund of about $50 from a $6 purchase. Williams further testified that she was able to identify numerous similar transactions at Target stores in other locations, such as Galveston, Clear Lake Shores, Kemah, Baybrook, Pearland, Tomball, and San Antonio.
On cross-examination, Williams testified that the overall loss figure for the transactions she observed and was able to document was approximately $2,500. On redirect, however, she explained that this amount was based on her investigation of a roughly thirty-day period in a limited geographical area.
The State=s next witness was Elizabeth Espirit. She testified that she had served jail time for engaging in the theft ring involving Cindy, Krystal, and Nicholas. She explained that she became involved through her husband, who was in the Harris County jail with B.J. Jahanian. B.J. had given her husband Krystal=s phone number so that Espirit could call her about some work. She testified that Cindy and Krystal would give her instructions, and they would go to Target, Lowe=s, Wal-Mart, Home Depot, and Academy stores to carry out the scheme. She also testified to the details of the theft ring=s operation, and confirmed that the ring stole all of the kinds of items listed on the indictment. She testified that they typically went out once or twice a week to steal, and each time they would go to between four and seven stores. Usually they would get one or two expensive items, unless they were getting ink cartridges, in which case they would get several. Concerning refunds, Espirit testified that they would use receipts to get cash, but if they did not have a receipt, they would take a previously stolen item to one of the stores and get a gift card. She estimated that she personally stole about $160,000 worth of merchandise.
On cross-examination, Espirit admitted that she really did not know how much she had stolen. She also admitted that she had met Nicholas Jahanian only once, and testified that he never gave her any instructions and she never saw him handle any stolen merchandise. She also testified that, after she spent time in jail, she pleaded guilty and was sentenced to ten years= deferred-adjudication probation and ordered to pay $50,000 in restitution.
Richard Schroeder, another participant in the theft ring, testified that he stole with the Jahanians from 2004 until 2006, and that he had previously been arrested for stealing with them. Most of the time, he would go with Cindy and Krystal, or Krystal and her ex-husband, to stores in and around various Texas cities, including Austin, San Antonio, Dallas, Fort Worth, Arlington, and Houston. As an example, Schroeder testified that they would go to Dallas about once a month and spend three or four days there. Each day they would go to eight to ten stores. In Houston, they would go out three or four days a week, and he went with them for over a year. Schroeder also testified that he and Nicolas once went to a Wal-Mart where Nicholas changed the bar code on a flat-screen television and Schroeder was arrested when he attempted to check out with the item. Nicholas was not arrested because he had already left the store. On cross-examination, Schroeder admitted that Nicholas never gave him any instructions or bar codes, and never gave him any money.
Jeremy Roble, a fraud investigator at eBay, explained how the eBay online-auction process works, and confirmed that the market is worldwide for items sold on eBay. He also explained that to put something for sale on eBay, one must create an eBay username or account, and have an e-mail address. He testified that he responded to a subpoena for records in this case, and in searching for information, he found that Nicholas Jahanian first established an account with eBay in August 2003, under the username Nick Jahanian, and he provided the e-mail address of ANickJahanian@hotmail.com.@ In October 2004, the username changed from Nick Jahanian to Bwatchers and the e-mail address changed to AeBaywatchers@hotmail.com.@ Roble further testified that State=s Exhibit 2A listed all of the transactions involving the Bwatchers account, and that the total sales price for the listed items was $258,970.36. He further testified that the list would not include sales after the end of October 2005, when he responded to the subpoena, and so it would not include sales from November 2005 through February 2006.
Todd Quattlebaum, the president of EZ Bayer, Incorporated, testified that his company buys and sells inventory for businesses and individuals on eBay. He testified that in 2003, Nicholas Jahanian listed some Panasonic DVD recorders and other items for sale through the company. Quattlebaum testified that Nicholas told him he was getting the items from a wholesaler. Quattlebaum also testified that the items Nicholas brought were all factory-sealed. After subtracting the company=s fees for its services, Quattlebaum=s records reflected 141 transactions for Nicholas totaling $13,611.23. Quattlebaum also estimated that his records did not reflect an additional twenty or thirty transactions.
Marshall Poe, a loss-prevention manager for Home Depot, testified as a representative of Home Depot and was one of the persons alleged in the indictment to be the owner of the stolen property. He testified that he participated in the surveillance on January 26, 2006, of Cindy and Krystal at the Home Depot. He identified numerous items from State=s Exhibit 2A as the type of items sold by Home Depot. He also testified that he had a greater right to possess items stolen from Home Depot than the thief who had stolen them. On cross-examination, Poe acknowledged that Home Depot did not sell some of the types of items on the list. He also could not attribute the loss of specific items to the Jahanians, and he did not know whether items on the list came from the Home Depot. Poe further testified that Home Depot did not have the technology to determine whether someone had been switching bar codes, and there was no way for them to check to see if they had video of the Jahanians conducting their activities in their stores. Poe also confirmed that Home Depot did not have the ability to track a serial number from a package to a particular store. He further testified that Home Depot employees purchased two items over the internet from Bwatchers, and the items were shipped from Cindy=s Spanish Needle address.
Tim Scott, who worked in loss prevention at Lowe=s, also testified as that store=s representative and was alleged in the indictment to be an owner of the stolen property. He identified items on State=s Exhibit 2A as the types of items Lowe=s sells, and testified that he had a greater right to possess merchandise stolen from Lowe=s than the thief who had stolen it. On cross-examination, he acknowledged that there were items on the list that Lowe=s did not sell, and other than the items he saw the Jahanians steal during his participation in the January 2006 surveillance, he could not tell whether the items on State=s Exhibit 2A were Lowe=s property. Scott also acknowledged that Lowe=s did not have the technology to match a bill of lading for items at Lowe=s to the items sold on eBay.
Thomas Brady Bailey similarly testified as Target=s representative and was another person alleged in the indictment to be an owner of the stolen property. Bailey, an investigator specializing in organized-crime investigations with Target, and who was then assigned to the United States Secret Service Federal Task Force, was also involved in the surveillance of the Jahanians on January 26, 2006. He testified that he had a greater right to possess the stolen items than the thief. He also testified that Target did not have the technology to trace a specific item back to a particular Target store. Bailey identified the types of items listed on State=s Exhibit 2A that were sold at Target.
At the prosecutor=s request, Bailey had previously picked out some of the items from the list to compare what Nicholas Jahanian sold them for on eBay to the sales price at Target. He testified that the average difference was thirty percent. Accordingly, Bailey testified that, applying that percentage to all of the stores, the $258,970.36 figure shown on State=s Exhibit 2A would have to be increased by approximately thirty percent to determine the approximate retail value of the property. On cross-examination, Brady identified items on State=s Exhibit 2B that Target did not sell. He also confirmed that the percentage of loss numbers he was asked to calculate by the district attorney=s office were estimates.
The last of the store representatives who was alleged in the indictment to be an owner of the stolen property was Mary Jo Meador, who testified as a representative of Wal-Mart. She testified that Wal-Mart sold many of the types of items listed on State=s Exhibit 2B, and also testified that she had a greater right to possess the items stolen than the thief. On cross-examination, she identified items on the list that Wal-Mart does not sell. She also admitted that she could not trace any of the items on the list back to Wal-Mart, and she acknowledged that some of the items were sold by numerous retailers. She also admitted that she was not able to document any loss resulting from the Jahanians= activities. Finally, she acknowledged that she could not say that she had a greater right of control over any item specifically listed on State=s Exhibit 2A.
Larry Boucher, Osterberg=s supervisor at the district attorney=s office, was recalled to the stand, and he testified concerning the arrests of Cindy, Krystal, and Nicholas Jahanian and the execution of the related search warrants. He described how Cindy and Krystal were arrested at Cindy=s house on Spanish Needle. In executing the search warrant, the officers found, among other things, a printer and fax machine, an envelope containing UPC codes, and the paper stock on which UPC codes would be printed. The codes matched those recovered during the surveillance of Cindy, Krystal, and Espirit. In Krystal=s car, parked outside the house, they found more UPC codes in Krystal=s purse, and in the passenger-door compartment they found more of the paper stock used to print UPC codes as well as two pairs of scissors. In the trunk, they found several Target bags and receipts from Target, Wal-Mart, and Lowe=s for items purchased for use in the theft scheme.
Boucher also described what was found in a storage unit that was searched with Cindy=s consent. There, the investigation team found nearly one hundred shopping bags. The largest number came from Target, and many of the bags had loose UPC codes stuck to them. There were also bags from Wal-Mart, Lowe=s, Home Depot, and Academy, along with some crumpled UPC codes. The officers also found at the storage facility shipping boxes labeled with Nicholas Jahanian=s name and address.
The defendants, including Cindy, rested after the State presented its case and did not present any testimony or other evidence.
Cindy=s Issues
On appeal, Cindy raises four issues: (1) she was egregiously harmed by the trial court=s failure to submit a jury instruction on value under Texas Penal Code section 31.08; (2) the evidence is legally insufficient to support her conviction; (3) the evidence is factually insufficient to support her conviction; and (4) defense counsel=s failure to request jury instructions on value under Penal Code section 31.008 constituted ineffective assistance of counsel. We will first address legal and factual sufficiency, and we will then address Cindy=s first and fourth issues in that order.
I. Legal and Factual Sufficiency of the Evidence
In her second and third issues, Cindy contends the evidence is legally and factually insufficient to support her conviction for engaging in organized criminal activity of theft of property over $200,000.
A. Standards of Review
When reviewing challenges to both the legal and factual sufficiency of the evidence supporting the verdict, we first review the legal-sufficiency challenge, because if successful, a legal-sufficiency challenge requires an acquittal rather than a remand to the trial court. See Clewis v. State, 922 S.W.2d 126, 132B33 (Tex. Crim. App. 1996); Stafford v. State, 248 S.W.3d 400, 404 (Tex. App.CBeaumont 2008, pet. ref=d). In reviewing the legal sufficiency of the evidence, we look at the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002). Although we consider all evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony, and it is the exclusive province of the jury to reconcile conflicts in the evidence. Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998).
In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light. See Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997); Clewis, 922 S.W.2d at 134. We may set the verdict aside if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust; or (2) the verdict is against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414B15 (Tex. Crim. App. 2006) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). While we may disagree with the jury=s conclusions, we must exercise appropriate deference to avoid substituting our judgment for that of the jury, particularly in matters of credibility. Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005); see also Watson, 204 S.W.3d at 414 (stating that an appellate court should not reverse a verdict it disagrees with unless it represents a manifest injustice, though supported by legally sufficient evidence). Thus, while we are permitted to substitute our judgment for that of the jury when considering credibility and weight determinations, we may do so only to a very limited degree. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).
Circumstantial evidence is as probative as direct evidence in establishing an actor=s guilt. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). Indeed, circumstantial evidence alone is sufficient to establish guilt. Id. Furthermore, the standard of review on appeal is the same for both direct and circumstantial evidence cases. Id.
Both legal and factual sufficiency are measured by the elements of the offense as defined by a hypothetically correct jury charge. See Woolly v. State, 273 S.W.3d 260, 268 (Tex. Crim. App. 2008). A hypothetically correct charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State=s burden of proof or unnecessarily restrict the State=s theories of liability, and adequately describes the particular offense for which the defendant was tried. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
A person engages in organized criminal activity Aif, with the intent to establish, maintain, or participate in a combination or in the profits of a combination, . . . he commits or conspires to commit@ one of several enumerated offenses, including theft. Tex. Penal Code Ann. ' 71.02(a)(1) (Vernon 2003 & Supp. 2008). Theft is committed when a person Aunlawfully appropriates property with intent to deprive the owner of property.@ Tex. Penal Code Ann. ' 31.03(a) (Vernon 2003 & Supp. 2008). AAppropriate@ means Ato acquire or otherwise exercise control over property other than real property.@ See Tex. Penal Code Ann. ' 31.01(4)(B) (Vernon 2003 & Supp. 2008). Appropriation of property is unlawful if it is Awithout the owner=s effective consent@ or Athe property is stolen and the actor appropriates the property knowing it was stolen by another.@ See Tex. Penal Code Ann. ' 31.03(b)(1), (2). B. Application of Law to Facts
1. Sufficiency of the Evidence that Cindy Committed Theft of Property over $200,000
Cindy does not challenge the evidence regarding her participation in a combination, and she concedes that the State proved that a theft occurred as an object of the combination and pursuant to a scheme and continuing course of conduct. She contends, however, that the evidence is legally and factually insufficient to show that (1) she personally committed a theft, and (2) the value of the items shown to have been stolen adds up to over $200,000. Because Cindy briefs her legal- and factual-sufficiency issues concerning each sub-issue together, we will address them similarly.
(a) Evidence that Cindy committed theft
Cindy first argues that there is no evidence she personally committed a theft, and because the jury was not authorized to convict her under the law of parties, the evidence is insufficient to support her conviction. She points out that police surveillance and videotapes of multiple transactions confirmed that she never personally stole any items, because it was customary for her to have left the store before any item was purchased using a fake UPC code. Additionally, Cindy points to Elizabeth Espirit=s testimony that Cindy was typically outside a store when she would purchase an item. In the absence of an instruction on the law of parties, Cindy argues, the charge required a finding that Cindy personally committed theft, and the evidence is insufficient to support the jury verdict since Cindy never personally stole anything.
But if the hypothetically correct jury charge for the case would authorize the jury to convict on alternative theories of liability, then we must deem the evidence sufficient if it is sufficient under any of the theories of liability. Garza Vega v. State, 267 S.W.3d 912, 915 (Tex. Crim. App. 2008). Under the indictment and the evidence detailed above, the jury could have been authorized to convict Cindy as a party. See Tex. Penal Code Ann. ' 7.02 (Vernon 2003). Cindy concedes as much in her brief, admitting that her Astatus as a party to the object offense, the theft, could certainly have been contained in the jury charge.@ Cindy argues, however, that because the prosecutor Aaffirmatively approv[ed]@ the lack of a parties charge, the State is precluded from urging on appeal that the sufficiency of the evidence should be measured by the hypothetically correct jury charge.
To support her contention, Cindy relies on Adi v. State, 94 S.W.3d 124 (Tex. App.CCorpus Christi 2002, pet. ref=d). In that case, Adi was indicted for engaging in organized activity based on an insurance-fraud scheme. The State requested an instruction on the law of parties, but the trial court erroneously denied it. Id. at 130B31. Despite the lack of a parties instruction, the court of appeals reviewed the evidence according to a hypothetically correct jury charge that included a parties instruction, and determined that the evidence was both legally and factually sufficient to support Adi=s conviction. Id. at 131. Nothing in Adi supports Cindy=s conclusion that, because the State abandoned its request for a parties charge, we are prohibited from reviewing the legal and factual sufficiency applying a hypothetically correct jury charge that includes a parties instruction. It is irrelevant in a sufficiency review that the application paragraph of the charge actually given did not include a parties instruction. See Garza Vega, 267 S.W.3d at 916.
We therefore reject Cindy=s contention that the absence of a parties instruction from the charge required the State to prove that she personally committed a theft. Accordingly, we apply the hypothetically correct jury charge, including an instruction on the law of parties, to analyze the legal and factual sufficiency of the evidence that Cindy committed or conspired to commit a theft. Given Cindy=s admission that the State proved that a theft occurred as an object of the combination and pursuant to a scheme and continuing course of conduct, and the extensive evidence detailed above concerning Cindy=s participation in the scheme, the evidence presented is legally and factually sufficient to support Cindy=s conviction for engaging in organized criminal activity, the object of which was to commit theft.
Moreover, even if we reviewed the evidence applying a hypothetically correct charge without a parties instruction, proof that Cindy exited the stores while in possession of the items was not necessary to sustain a finding that she committed theft. The removal of an item from its customary location is sufficient to show that the defendant exercised control over the item for purposes of the commission of a theft, even if the defendant never removes the item from the premises. See Baker v. State, 511 S.W.2d 272, 272B73 (Tex. Crim. App. 1974) (rejecting contention that evidence was insufficient to prove theft when proof showed defendant moved property from its original position at business); Masters v. State, 437 S.W.2d 868, 869 (Tex. Crim. App. 1969) (AIt is not essential that appellant have removed the money from the premises of the service station.@); In re C.L.W., Nos. 05-05-00754-CV, 05-05-00776-CV, 05-05-0777-CV, 05-05-00778-CV, 05-05-00779-CV, 2006 WL 321959, at *2 (Tex. App.CDallas Feb. 13, 2006, no pet.) (mem. op.) (AThere is no requirement that the property actually be removed from the premises or kept for a specific length of time.@).
Here, the evidence was sufficient for the jury to find that Cindy exercised control over and appropriated the stolen property with intent to deprive the stores of it, even though she did not personally take it out of any of the stores. As Cindy admits in her brief, A[i]t is undisputed that the modus operandi for the commission of thefts by the Jahanian family called for appellant to switch UPC codes on products, then leave a store before a third party purchased the products with the bogus UPC codes. Police surveillance established this pattern.@ Cindy therefore admits to personally switching the bar-code labels. The evidence also showed that Cindy and her daughter, Krystal Jahanian, who lived with her at the time, took possession of the stolen merchandise inside the stores by moving it from the position it occupied in the store, switching the bar-code labels on the merchandise with the bar-code label for a lesser-priced item, and replacing the merchandise to its former position in the store. An accomplice, such as Elizabeth Espirit, later picked up the merchandise and then physically removed it from the store and delivered it to Cindy=s and Krystal=s possession.
Cindy=s conduct in switching the bar codes, which she admits in her brief, was legally and factually sufficient to show that she personally possessed and exercised control over the stolen property, and therefore unlawfully appropriated it, with the intent to deprive the owner of it, even though she did not actually remove it from the stores. See Baker, 511 S.W.2d at 272B73; Masters, 437 S.W.2d at 869; In re C.L.W., 2006 WL 321959, at *2; Tex. Penal Code Ann. ' 31.03(a), (b)(1) & (2). Thus, the evidence is legally and factually sufficient to support Cindy=s conviction for committing theft, even without applying the law of parties.
(b) Evidence of theft of property over $200,000
Cindy next argues that the evidence fails to support the allegation that over $200,000 worth of property was stolen. She contends that it is Aundisputed@ that the State failed to show the theft of many of the items set out in the indictment and the jury charge. Therefore, Cindy argues, the evidence is insufficient because the value of the items shown to be stolen does not add up to an amount equal to or greater than the amount alleged. See Wiley v. State, 632 S.W.2d 746, 747B48 (Tex. Crim. App. 1982).
Specifically, Cindy complains that the witnesses were unable to state that the list of eBay sales by Nicholas Jahanian included any of the complainants= property, and the amount of property confirmed stolen was minuscule compared to the $200,000 alleged. As an example, Cindy points to the testimony of Dee Williams, who testified that the value of the items stolen from Target as shown on the videotapes was about $2,500. Further, Cindy complains that the evidence is insufficient because it does not relate to the specific items owned by the complainants and it is based on Aassumptions and estimates.@ She points to Doug Osterberg=s testimony that he was assuming that all of the items Nicholas Jahanian sold on eBay were stolen, but he could not match any individual items from the eBay list to any named complainant. She also points to Elizabeth Espirit=s testimony that she Amight have stolen@ property valued at $160,000, but there was no attempt to link any thefts to the four named complainants.
In essence, Cindy contends the State failed to prove that the value of the property stolen exceeded $200,000 because the evidence is insufficient to identify the property sold on Nicholas Jahanian=s eBay account as the same property the theft ring stole from the stores. But a fact finder can determine the identity and ownership of stolen property from circumstantial evidence. See Jordan v. State, 707 S.W.2d 641, 644B45 (Tex. Crim. App. 1986) (AProof of ownership may be made by circumstantial evidence, just as any other issue in a criminal case.@); Jones v. State, 458 S.W.2d 89, 91B92 (Tex. Crim. App. 1970) (A[A]rticles in an accused=s possession may be identified by circumstantial evidence as well as by direct testimony. If it appears it or they correspond with articles that were stolen, the question may go to the jury.@); Villani v. State, 116 S.W.3d 297, 306 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d) (AProof of ownership may be made by circumstantial evidence.@); Robinson v. State, No. 01-85-00970-CR, 1986 WL 12889, at *2 (Tex. App.CHouston [1st Dist.] Nov. 13, 1986, pet. ref=d) (not designated for publication) (AIt is well settled that the identity and ownership of stolen property may be established by circumstantial evidence.@).
Here, the State presented circumstantial evidence, accomplice testimony, and other evidence to establish that most, if not all, of the property shown on State=s Exhibit 2A was stolen from the stores whose representatives are named in the indictment. The testimony from the store representatives established that each of the stores sold in varying degrees merchandise of the types alleged in the indictment that State=s Exhibit 2A reflected was sold by Nicholas Jahanian on his eBay account. The accomplice testimony and other evidence, discussed above, showed that (1) the theft ring, including Cindy, stole large quantities of the types of merchandise alleged in the indictment from the stores during the relevant time, and (2) Nicholas Jahanian, another member of the theft ring, sold the merchandise stolen by the ring from those stores on eBay for the benefit of the theft ring=s members. State=s Exhibit 2A, the eBay business records pertaining to Nicholas Jahanian=s only eBay account during the relevant time period, showed not only the vast quantity of merchandise of the types alleged in the indictmentCover 2,000 itemsCbut also the price at which he actually sold each of the items. Under these facts, the jury could have rationally inferred that all of the types of merchandise shown on State=s Exhibit 2A and that were alleged in the indictment and named in the court=s charge had been stolen from those stores by the theft ring=s members.
The State concedes that the aggregate total sales price of $258,970.36 shown on State=s Exhibit 2A for all the merchandise Nicholas Jahanian sold on the eBay account included some items that were either not alleged in the indictment, mentioned in the charge, or within the types of merchandise sold by the stores and were therefore could not be included for the purpose of calculating the value of the merchandise stolen from the stores.[7] But, the State argues, the jury nevertheless could have reasonably found from State=s Exhibit 2A, which showed the individual price paid for each item of merchandise Nicholas sold through his eBay account in addition to the total sales price of $258,970.36, that the aggregate value of only the items the theft ring stole from the stores exceeded $200,000.[8] Cf. Wiley, 632 S.W.2d at 747B48 (holding evidence was sufficient to support verdict against defendant alleged to have stolen several guns and gun cases valued over $200 because, even though appellant contended the evidence failed to show he appropriated one pistol, the State proved the value of each item appropriated and the proof showed that two other guns were worth more than $200 each). We agree.
The jury heard the cross-examinations of the witnesses, including the various witnesses= admissions that not all of the items on State=s Exhibit 2A were sold by the represented stores. The jury was capable of reviewing State=s Exhibit 2A, which included a description of each item and the price paid for each item Nicholas Jahanian sold on eBay, and determining which items should be disregarded, and which were included in the indictment. From that, the jury could determine the aggregate value of the items it found were stolen from the stores whose representatives were named in the indictment. Therefore, viewed in either the light most favorable to the verdict or in a neutral light, the jury=s determination that the value of the merchandise stolen from the complainants was over $200,000.00 is supported by legally and factually sufficient evidence. See Valdez v. State, 116 S.W.3d 94, 98B99 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d) (rejecting claim that evidence of value over $200,000.00 was legally and factually insufficient in theft prosecution in which investigator calculated the value of stolen electronic components by determining the lowest price for which the items could have been purchased near the time of the theft and appellant offered contradictory testimony that the value was much lower based on the amount for which he could sell certain of the stolen items).
Accordingly, we hold that the evidence is legally and factually sufficient to support Cindy=s conviction for theft of property over $200,000, and we overrule Cindy=s second and third issues. See Watson, 204 S.W.3d at 415B16; Jahanian v. State, No. 14-07-00700-CR (Tex. App.CHouston [14th Dist.] May 28, 2009, no pet. h.) (mem. op., not designated for publication) (holding evidence that allegedly stolen items were taken from the complaining witnesses= stores was legally and factually sufficient to support conviction of co-defendant Nicholas Jahanian); Jahanian v. State; No. 14-07-00702-CR (Tex. App.CHouston [14th Dist.] May 28, 2009, no pet. h.)(mem. op., not designated for publication) (holding evidence of ownership and value was legally and factually sufficient to support conviction of co-defendant Krystal Jahanian).
II. Failure to Submit Jury Instruction on Value
In her first issue, Cindy contends that she Awas egregiously harmed by the trial court=s failure to submit a jury instruction on value under section 31.08 of the Penal Code.@ According to Cindy, the value of the property allegedly stolen was a contested issue and the charge included lesser offenses concerning the value of the property alleged to have been stolen, but the trial court=s instructions Adid not inform the jury how to determine the value of the property allegedly stolen.@ Cindy concedes she did not request or object to the omission of an instruction on value, but argues that she was egregiously harmed by the trial court=s failure to sua sponte include a value instruction, because the jury Awas left to speculate as to whether the value was the store price or the price the property was subsequently sold for on eBay, and whether [Cindy] was entitled to a deduction for monies paid as consideration to purchase the items under bogus UPC codes.@
A. Standards of Review
The review of alleged jury-charge error is a two-step process. Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). First, we examine the jury charge to see if the trial court erred. Abdnor, 871 S.W.2d at 731B32. Second, if we find that the trial court erred, we must determine if the harm is sufficient to warrant reversal. Id. When a timely objection is made, error in the jury charge requires reversal if the error was Acalculated to injure the rights of defendant,@ meaning that the error was not harmless. See Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 2006); see also Abdnor, 871 S.W.2d at 731B32. But because Cindy did not timely object to the jury charge, any error will not require reversal unless the error is so egregious that Cindy was not given a fair and impartial trial. See Almanza, 686 S.W.2d at 171. If we do find error in the jury charge, we must review the entire record to determine whether Cindy suffered egregious harm. Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006). An error in the jury charge is egregious if Ait affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory.@ Id. We must assess the degree of harm caused by a charge error Ain light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.@ Almanza, 686 S.W.2d at 171.
B. The Trial Court Did Not Err in Failing to Submit Jury Instruction on Value
The value of property in theft prosecutions is (1) the fair market value of the property at the time and place of the offense, or (2) if the fair market value of the property cannot be ascertained, the cost of replacing the property within a reasonable time after the theft. See Tex. Penal Code Ann. ' 31.08(a) (Vernon 2003). Section 31.08 also provides that if a defendant proves by a preponderance of the evidence that he gave consideration for or had a legal interest in the property or service stolen, Athe amount of the consideration or the value of the interest so proven shall be deducted from the value of the property or service ascertained . . . to determine value for purposes of this chapter.@ Id. ' 31.08(d) (Vernon 2003).
As an initial matter, the State argues that section 31.08 does not apply to a prosecution under chapter 71 for the offense of engaging in organized criminal activity. See Tex. Penal Code Ann. ' 71.02(a). The State argues that, by its express terms, subsection 31.08(a)=s definition of value applies only to an offense under chapter 31 of the Penal Code. See Tex. Penal Code Ann. ' 31.08(a) (providing that Avalue@ under section 31.08 is Avalue under this chapter@). Further, the State notes that subsection 31.08(d) is likewise restricted to Apurposes of this chapter@ and so is not required in a court=s charge for an offense under Penal Code chapter 71, particularly in the absence of a request for it or an objection to its omission. In support of its argument, the State cites Garrison v. State, 726 S.W.2d 134 (Tex. Crim. App. 1987); Gray v. State, 51 S.W.3d 856 (Tex. App.CTexarkana 2001), pet. dism=d, 85 S.W.3d 300 (Tex. Crim. App. 2002) (per curiam); and Winters v. State, No. 14-00-00400-CR, 2001 WL 1168205 (Tex. App.CHouston [14th Dist.] Oct. 4, 2001, pet ref=d) (not designated for publication). In this circumstance, however, we disagree with the State=s argument and find the State=s cases distinguishable.
Here, the Jahanians were charged with and convicted of the offense of organized criminal activity under chapter 71, with the underlying offense being theft. See Tex. Penal Code Ann. ' 71.02(a)(1) (AA person commits an offense [of engaging in organized criminal activity] if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a criminal street gang, he commits or conspires to commit . . . theft.@). Consistent with Penal Code section 31.03, the trial court=s charge instructed the jury on the elements of theft. And, consistent with Penal Code section 31.09, the jury also was instructed as follows: AWhen amounts are obtained by theft pursuant to one scheme or continuing course of conduct, whether from the same or several sources, the conduct may be considered as one offense, and the amounts so taken aggregated to determine the grade and of the offense and the value of property taken.@ In each of the cases the State cites, the definition of a particular weapon was taken from a chapter unrelated in any way to the charged offense. See Garrison, 726 S.W.2d at 138B39 (stating that trial court should not have included definition of Aknife@ for use in chapter 46 offenses in prosecution for aggravated robbery and assuming error); Gray, 51 S.W.3d at 858B59 (holding that trial court erred in including chapter 46 definition of Aknife@ in charge for aggravated robbery under chapter 29); Winters, 2001 WL 1168205, at *2 (holding that chapter 46 definition of Aclub@ did not apply to aggravated assault charge at issue because definition applied only to chapter 46 offenses). In contrast, although the primary offense alleged here was organized criminal activity under chapter 71, the underlying offense was theft under chapter 31, and we cannot say that including definition of Avalue@ provided in section 31.08 in such a case would necessarily be error.
But, having determined that a section 31.08 definition of value may be appropriate in this situation, we must still determine whether, as Cindy argues, the trial court erred in failing to sua sponte include it in the jury charge. Subsection 31.08(a) generally states that the value of property for the purpose of an offense under chapter 31 is Athe fair market value of the property . . . at the time and place of the offense,@ except for situations when fair market value cannot be shown, and in that case replacement value is applied. Although Afair market value@ is not statutorily defined, it has long been stated to mean the amount of money that the property would sell for in cash, giving a reasonable time for selling it. Keeton v. State, 803 S.W.2d 304, 305 (Tex. Crim. App. 1991). Fair market value may be proved by evidence of retail price, sales price, testimony of an owner=s opinion of value, or expert opinion of value, but no single method for proving fair market value has been held to be conclusive. Id. As the Court of Criminal Appeals has recognized, A[u]se of various methods to show fair market value is certainly due to the necessity for flexibility because of the various circumstances of theft that arise.@ Id.
Here, the only dispute regarding value related to the identity of the property shown on State=s Exhibit 2A as property stolen from the stores, as discussed above. No evidence presented suggested that the fair market value of the stolen items could not be proven or that replacement value was an appropriate alternative, and there was no dispute concerning whether the State=s evidence showing the value of the items demonstrated their fair market value. The State relied on its Exhibit 2A as evidence of the value of the stolen items, and investigator Osterberg testified that the value of the property appropriated from the stores was over $200,000 based on Nicholas Jahanian=s sales on eBay. The investigating officers and store representatives also testified about the retail price of some of the items stolen, particularly when describing the events depicted on the surveillance videos, and Brady Bailey, an investigator for Target, testified that, on average, Nicholas Jahanian sold the type of items Target sold for about thirty percent less than the retail price of the items.
Although Cindy complains that the jury was left to speculate as to whether to use the retail store price or the eBay sale price to determine value, either method of determining value would have been valid. See Keeton, 803 S.W.2d at 305 (recognizing that methods of proving value must be flexible because of the various circumstances of theft that arise). Moreover, the State=s reliance on Nicholas Jahanian=s eBay sales actually benefitted the defendants because the State presented some evidence that the retail value of the items was greater than the amount Nicholas Jahanian received from his sales on eBay and reflected on State=s Exhibit 2A. Under these circumstances, the addition to the charge of a definition of value as Afair market value@ would have been unnecessary and would not have assisted the jury, because nothing in the record suggests that the proof the State relied on to show value showed anything other than fair market value as that term is both defined under the common law and is commonly understood. Therefore, the trial court could not have erred by failing to sua sponte include section 31.08=s definition of Avalue@ in the charge.
Cindy relies on McKnight v. State for the proposition that Aa trial court must give the jury a proper guide by which to determine the value of property stolen@ and, apparently, sua sponte instruct the jury that the value of property is the fair market value of the property at the time and place of the offense in every theft case. See 134 Tex. Crim. 373, 115 S.W.2d 636 (1938). But Cindy=s reliance on McKnight is misplaced. In that case, the court held that the trial court=s failure to give a charge on value was error when the evidence showed that the property stolen, namely automobile tires, tubes, and rims, was used as opposed to new; its fair market value in the place where it was stolen, Nacogdoches, was questionable; and the defendant objected to the omission. Id. at 637. The court noted that, if the property had no market value, then the replacement value would govern, and in the absence of an instruction on the market value in the place where the property was stolen, the jury Awas at liberty to seize upon any value without reference to the cash market value in Nacogdoches, and without reference to it being secondhand goods.@ Id. As discussed above, the property at issue here was new merchandise; there was nothing in the record to show that the evidence the State relied on to show value demonstrated anything other than fair market value; and Cindy did not request an instruction on value or object to its omission. Therefore, McKnight is distinguishable and does not control the resolution of this case.
Finally, Cindy also appears to complain that the trial court erred in failing to include subsection 31.08(d)=s provision for offset for consideration, because its omission left the jury to speculate as to whether she was Aentitled to a deduction for monies paid as consideration to purchase the items under bogus UPC codes.@ Subsection 31.08(d) specifically provides:
If the actor proves by a preponderance of the evidence that he gave consideration for or had a legal interest in the property or service stolen, the amount of the consideration or the value of the interest so proven shall be deducted from the value of the property or service ascertained under Subsection (a), (b), or (c) to determine value for purposes of this chapter.
Tex. Penal Code Ann. ' 31.08(d). Cindy contends that, contrary to subsection 31.08(d), the prosecutor erroneously argued to the jury that the defendants were not entitled to a deduction for consideration paid for the stolen items, when Ait was undisputed that the modus operandi of the theft ring was to actually give consideration for and purchase all items allegedly stolen, albeit for a lesser price than advertised by the respective stores.@ Thus, Cindy concludes, the absence of a value instruction in the charge prevented the jury from properly assessing the value of the stolen property.
When evidence from any source raises a defensive issue, and the defendant properly requests a jury charge on that issue, the trial court must submit the issue to the jury. Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993). But, there is no duty imposed on a trial court to instruct the jury on unrequested defensive issues, even though the issues are raised by the evidence. See Bennett v. State, 235 S.W.3d 241, 243 (Tex. Crim. App. 2007); Posey v. State, 966 S.W.2d 57, 62B63 (Tex. Crim. App. 1998). At least one court has held that consideration in a theft case is a defensive issue and the trial court does not err by omitting an instruction based on section 31.08(d) when the defendant fails to properly request it. See Oglesby v. State, 01-08-00158-CR, 2009 WL 144989, at *4B5 (Tex. App.CHouston [1st Dist.] 2009, no pet.). We agree that an instruction under section 31.08 is in essence one pertaining to a defensive issue, and therefore, in the absence of a request or an objection, the trial court did not err in failing to sua sponte include such an instruction in the charge.[9] See Bennett, 235 S.W.3d at 243, Posey, 966 S.W.2d 62B63; Oglesby, 2009 WL 144989, at *4B5.
Even if we assume the requested instruction is not defensive in nature, we conclude that the trial court did not err in failing to include it in the charge because Cindy was not entitled to such an instruction. As noted above, for Penal Code subsection 31.08(d) to apply, Cindy must first Aprove[] by a preponderance of the evidence that [s]he gave consideration for or had a legal interest in the property or service stolen.@ See Tex. Penal Code Ann. ' 31.08(d). Cindy=s entire argument on this portion of her issue is the following: AThe record reflects that every individual theft involved consideration paid at the check out counter. Appellant clearly established by a preponderance of the evidence that consideration was given for all stolen property.@ But the record shows that Cindy and the other defendants immediately rested after the State did, offering no evidence of their own. Cindy does not point out where in the record she offered proof of either any total dollar amount of consideration that she or any other member of the theft ring paid for the stolen merchandise, or any means, formula, or reasonable basis by which such an amount could be calculated.
Moreover, the evidence presented is contrary to Cindy=s representation. The record reflects that the theft ring purchased or stole lower-priced merchandise, often items that would ring up as roughly either about $7 or $27, to obtain or to forge bar-code labels to put on the higher-priced merchandise they desired. At the stores, they switched the UPC codes on the higher-priced merchandise with the UPC codes for the lower-priced merchandise previously obtained, so that they could purchase the higher-priced items for the price of the lower-priced goods. The State=s evidence also showed that the theft ring would return the lower-priced merchandise for a refund of some kind. For example, the ring would obtain a cash refund in situations in which there was a receipt, and when there was no receipt, the ring would obtain a gift card. As Dee Williams testified, the cost to the Jahanians to steal the higher-priced items was $6, and in some instances the theft ring was actually able to make a profit on returned items. State=s Exhibit 2A also reflects that a number of gift cards were sold on Nicholas Jahanian=s eBay account, providing an additional source of profit to the ring. Consequently, even though members of the theft ring paid the price rung up for the lower-priced merchandise at the time they obtained the higher-priced merchandise from the stores, the evidence showed that at least some, if not most, of the higher-priced merchandise cost them little or nothing.
Because Cindy directs us to no evidence that she proved by a preponderance that she gave actual consideration to the stores for the higher-priced merchandise, she cannot demonstrate that she was entitled to an instruction based on subsection 31.08(d). See Bogia v. State, No. 01-02-00950-CR, 2004 WL 253263, at *3B4 (Tex. App.CHouston [1st Dist] 2004, pet. ref=d) (mem. op., not designated for publication) (holding trial court did not err in denying requested instruction under Penal Code section 31.08(d) when appellant failed to prove by a preponderance of the evidence any value conferred upon complainant).
Therefore, we overrule Cindy=s first issue.
III. Ineffective Assistance of Counsel
In her fourth issue, Cindy contends that her counsel=s failure to request jury instructions on value under Penal Code section 31.08 constituted ineffective assistance of counsel. Specifically, she contends that the key issue in the case was the value of the property stolen, but her counsel did not request instructions on value under section 31.08 or object to their omission from the jury charge. Additionally, Cindy complains that she was entitled to an instruction under subsection 31.08(d) because Athe evidence established that consideration was given whenever property was stolen@ and this instruction Awould have required the jury to subtract such consideration from the alleged value of the items.@
A. Standards of Review
In reviewing claims of ineffective assistance of counsel, we apply a two‑prong test. See Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish ineffective assistance, Cindy must prove by a preponderance of the evidence that (1) her trial counsel=s representation fell below the standard of prevailing professional norms, and (2) there is a reasonable probability that, but for counsel=s deficiency, the result of the trial would have been different. Id.
An accused is entitled to reasonably effective assistance of counsel. Strickland, 466 U.S. at 686; King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983). When evaluating a claim of ineffective assistance, the appellate court looks to the totality of the representation and the particular circumstances of each case. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). There is a strong presumption that counsel=s conduct fell within a wide range of reasonable representation. Salinas, 163 S.W.3d at 740 (citing Mallet v. State, 65 S.W.3d at 59, 63 (Tex. Crim. App. 2001)). To overcome the presumption of reasonable professional assistance, A[a]ny allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.@ Thompson, 9 S.W.3d at 814. When determining the validity of an ineffective-assistance claim, any judicial review must be highly deferential to trial counsel and avoid the distorting effects of hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984) (citing Strickland, 466 U.S. at 689).
If a criminal defendant can prove that trial counsel=s performance was deficient, she must still affirmatively prove that counsel=s actions prejudiced her. Thompson, 9 S.W.3d at 812. This requires the defendant to demonstrate a reasonable probability that the result of the proceeding would have been different if trial counsel had acted professionally. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).
B. Cindy Fails to Demonstrate that She Received Ineffective Assistance of Counsel
Cindy=s counsel=s reasons for not requesting any charge under Penal Code section 31.08 do not appear in the record. Counsel may have determined that such instructions were unnecessary under the facts of this case. As discussed above, we have already determined that the trial court did not err in failing to include a definition of value under subsection 31.08(a) because there was no evidence that suggested that the value of the stolen items was anything other than the fair market value of the items. Thus, Cindy has failed to demonstrate that her counsel=s representation fell below the standard of prevailing professional norms because he failed to request an instruction on value under subsection 31.08(a).
Concerning the defensive instruction under subsection 31.08(d), Cindy contends that counsel=s failure to request jury instructions on defensive theories raised by the evidence has been held to constitute ineffective assistance of counsel. See Storr v. State, 126 S.W.3d 647 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d) (voluntary release of kidnap victim); Vasquez v. State, 830 S.W.2d 948 (Tex. Crim. App. 1992) (necessity defense); Sanchez v. State, 931 S.W.2d 331 (Tex. App.CSan Antonio 1996, pet. ref=d); overruled on other grounds by Woods v. State, 956 S.W.2d 33 (Tex. Crim. App. 1997) (exclusion of evidence obtained illegally). We have already determined that, because Cindy=s counsel did not request an instruction on this defensive issue, the trial court did not err in failing to include such an instruction in the jury charge.
Moreover, unlike the cases Cindy relies upon, and as detailed above, the evidence does not establish that she was entitled to this instruction. See Alarid v. State, 762 S.W.2d 659, 662 (Tex. App.CHouston [14th Dist.] 1988, pet. ref=d) (holding that appellant was not denied effective assistance of counsel when counsel failed to request instruction under Penal Code section 31.08(d) because appellant was not entitled to instruction and counsel may have realized this and followed another strategy). Cindy has therefore failed to meet her burden to show an unprofessional error with the meaning of the first prong of the Strickland test for ineffective assistance of counsel. Cindy has also failed to demonstrate that but for her counsel=s representation, the result would have been different. See id.
We therefore overrule Cindy=s fourth issue.
Conclusion
We overrule Cindy=s issues and affirm the trial court=s judgment.
/s/ Jeffrey V. Brown
Justice
Panel consists of Chief Justice Hedges and Justices Guzman and Brown.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Cindy, Krystal Jahanian, and Nicholas Jahanian were tried together, while Bahram Jahanian, who represented himself, was tried separately. All of the defendants have filed appeals in this court.
[2] There was also evidence indicating that UPC codes were forged for this purpose.
[3] The indictment against Cindy, as amended, alleged the following types of merchandise: shavers, MP3 players, faucets, music stations, speakers, printers, camcorders, thermostats, cameras, printer docks, print servers, software, phones, DVD-VHS recorders, DVD recorders, paintball markers with masks and tanks, toothbrushes, paintball guns, tennis racquets, gift cards, water filters, and print cartridges. The owners of the property were alleged to be Brady Bailey, Tim Scott, Marshall Poe, and Mary Jo Meador, as representatives of Target, Lowe=s, Home Depot, and Wal-Mart, respectively.
[4] The address for the Bwatchers account was Cindy=s home on Spanish Needle.
[5] Osterberg also testified that the persons who purchased the items from Bwatchers were not contacted by law-enforcement personnel.
[6] The trio were also captured on video at the second Target store, and the State published to the jury two DVDs depicting Cindy, Krystal Jahanian, and Elizabeth Espirit at this store as part of its examination of Osterberg concerning the theft ring=s method of operation.
[7] These items included, for example, two Bally=s Premier Lifetime Gym Memberships sold for a total of $1,317.00, several pairs of U2 tickets, sold for a total of $1,045.35, an Oldsmobile Cutlass sold for $338.00, three other cars sold for a total of $10,349.99, and a used black leather sofa sold for $51.00. Also on the list were several gift cards from stores not represented in the indictment, such as Office Depot, Linens-N-Things, Best Buy, and Academy stores. These items reflected a small portion of the extensive list of items on State=s Exhibit 2A.
[8] The evidence showed that Nicholas Jahanian promptly sold the property taken by the theft ring through his eBay account and shipped it to the purchasers throughout the country and elsewhere. Testimony from the store representatives established that property taken from the stores was not susceptible of identification by serial number or other unique identifier. Thus, as a practical matter, in an organized criminal activity case of this type the State could rarely ever prove that all the property a theft ring stole and sold in a worldwide market such as eBay was the exact property taken from the victims because of the manner in which the theft ring disposed of it.
[9] We note that, in her fourth issue, Cindy contends that her trial counsel rendered ineffective assistance because, among other things, counsel failed to request an instruction under section 31.08(d) and argues that A[f]ailure to request jury instructions on defensive issues has been held to constitute ineffective assistance of counsel.@ Thus, Cindy acknowledges that an instruction under section 31.08(d) raises a defensive issue.