PD-0400-15
PD-0400-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 4/7/2015 11:01:43 PM
Accepted 4/15/2015 11:18:01 AM
ABEL ACOSTA
No. 14-14-00335-CR CLERK
IN TI{E
COURT OF CRIMINAL APPEALS
STATE OF TEXAS
BRENETTA SHERM N.{, Petitioner
V.
THE STATE OF TEXAS
Petition in Trial Cause No. 1389343 from the
Z3}thDistrict Court, Harris County, and the
Court of Appeals for the 14th District of Texas
PETITION FOR DISCRETIONARY REVIEW
Joe David Wells
State Bar No. 90001904
PO Box 2064
April 15, 2015 Houston, Texas 77252
Tel (281) 410-8778
Fax (832) 201-0467
ATTORNEY FOR PETITIONER
ORAL ARGUMENT REQUESTED
NOTICE OF ALL INTERESETED PARTIES
Pursuant to TEX. R. APP. P. 38.1(a), the following persons are interested parties:
Petitioner
Brenetta Sherman
Attorneys for Petitioner
Mr. Joe David Wells (on appeal)
P.O. Box 2064
Houston, Texas 77252
(281) 410-8778
Ms. Eileen Bogar (at trial court)
Mr. Jerry Guerinot (at trial court)
6309 Skyline #D
Houston, Texas 77057
(713) 858-0700
Trial Judge
The Honorable Brad Hart
23}th District Court
1201 Franklin
Houston, Texas 77402
Attorneys for the State
Ms. Kristina Daily (at trial court)
Ms. L. B. Calligan (at trial court)
Mr. Alan Curry (on appeal)
Harris County District Attomey's Office
1201 Franklin, Suite 600
Houston, Texas 77002
(7 13) 7ss-s800
2
TABLE OF CONIENTS
Page
Notice of All Interested Parties 2
Table of Contents a
J
Table of Authorities 4
Statement of the Case 5
Grounds for Review. 6
Statement of Facts 7
Summary of Argument.
Argument. 10
Prayer t2
Certificate of Service 13
TRAP 9.4(iX3) Certificate of Compliance 13
Exhibit A (Court of Appeals decision) 14
3
TABLE OF AUTHOBITES
pqge
Cases
Brooks v. State,323 S.W.3d 893 (Tex.Crim.App. 2010) 10
Harrell v. State,852 S.W.zd 521 (Tex.Crim.App. 1993) 1l
Inman v. State,650 S.W.2d 417 (Tex.Crim.App. 1983) 11
Jackson v. Virginia,443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) 10
Statutes
Texas Code of Criminal Procedure, Article 44.25 10
Texas Penal Code, Section 31.03 10
4
STATEMENT OF THE CASE
Petitioner Brenetta Sherman was charged by indictment with the felony
offense of Theft Under $1,500-3'd Offender in the 230th District Court of Harris
County, Texas, the Honorable Brad Hart presiding. (CR 9). Petitioner's punishment
range was enhanced by the grand jury from the state jail level to the third degree
level by a previous felony aggravated assault conviction. (CR 9). On April 14,2014,
petitioner was found guilty following a trial by ju.y. (CR 80). The jury also decided
punishment at 4 years confinement in the institutional division of the Texas
Department of Criminal Justice. (CR 8l). Petitioner timely filed a notice of appeal
on April 15,2014. (CR 73). The appeal was assigned to the 14ft Court of Appeals.
Appellant's brief was filed on August 18, 2014. Appellee's brief was filed on
October 28, 2014. The Court of Appeals issued an opinion on March 5, 2Al5
affirming petitioner's conviction. Petitioner seeks review of this affirmance.
5
GROUNDS FOR REVIEW
The Court of Appeals erred in holding that petitioner's request to the
complaining witness not to call the police and her statement to him that she would
never shoplift again supported an implied finding by the jury that the property listed
in a theft indictment belonged to the complaining witness.
6
STATEMENT OF FACTS
Petitioner was charged by indictment with the felony offense of Theft Under
$1,500-3'd Offenderr. (CR 9). The complaining witness listed in the indictment,
Scott Rome, is a loss prevention officer for Academy Sports & Outdoors. (RR Vol.
3, 18). The indictment accused petitioner of stealing 6 pairs of shorts from Mr. Rome
on May 27,2013. (CR 9). Mr. Rome was working floor securify on May 27,2013
at an Academy store in Baytown, Texas. (RR Vo1.3, 19). Mr. Rome encountered
petitioner and her daughter in the men's department. Qd,21-22). According to Mr.
Rome, he saw them select 18-20 items then go to the fitting room together. (Id, 23-
24). He then waited outside the fitting room for petitioner and her daughter to exit.
(1d,24). Mr. Rome testified that petitioner left the fitting room with no merchandise
in hand while her daughter left with only five items. (Id, 25). Because of this, Mr.
Rome concluded that petitioner must have concealed merchandise. (Id, 27).
Petitioner left the store without making a purchase. (1d,27-28). Mr. Rome followed
petitioner and her daughter outside the store where he stopped them. (Id, 28).
According to Mr. Rome, petitioner pulled seven t-shirts and six pairs of shorts out
of her coveralls while in the store office. (RR Vol. 3,36-37 & Vo1. 5, Ex. 5&6).
l Petitioner plead true to both prior theft convictions alleged in her indictment at the beginning of
trial. (RR Vol.3, l2-t3).
Petitioner did not admit to any theft but she did apologize to Mr. Rome and asked
him to not contact the police. (RR Vol. 3,31 & 35). The Academy store did have
surveillance video of the men's department from May 27,2013. (RR Vol. 5, Ex 4).
The surveillance video does not show petitioner hiding any merchandise in her
coveralls. (Id). There is no surveillance video of the store office where Mr. Rome
claimed petitioner removed seven t-shirts and six pairs of shorts from her
coveralls.(RR Vol. 3,45). The t-shirts and shorts alleged to have been removed from
petitioner's coveralls did not have any security tags (RR Vol. 3,41-42) or price tags
(RR Vol. 5, Ex 5 & 6) attached to them identifuing the clothing as belonging to Mr.
Rome or his employer Academy Sports & Outdoors. There was no testimony that
the clothing belonged to Mr. Rome or his employer, Academy Sports & Outdoors.
8
ST]MMARY OF ARGUMENT
There was insufficient evidence for the jury to find beyond a reasonable doubt
that petitioner committed the offense of theft. The State failed to establish that the
items listed as stolen in the indictment were owned by the complaining witness or
his employer. The Court of Appeals erred in holding that petitioner's request to the
complaining witness not to call the police and her statement to him that she would
never shoplift again supported an 'oimplied finding" by the jury that the clothing
listed in the indictment belonged to the complaining witness.
9
ARGUMENT
The Court of Appeals erred in holding that petitioner's request to the
complaining witness not to call the police and her statement to him that she
would never shoplift again supported an implied finding by the jury that the
property listed in a theft indictment belonged to the complaining witness.
An appellate court may reverse a conviction when the facts introduced at trial
are insufficient to support the verdict. Tex. Code Crim. Proc. Art. 44.25. The
standard for sufficiency of the evidence in criminal cases was established by the
United States Supreme Court ln Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781,
6l L.Ed.2d 560 (1979). The Texas Court of Criminal Appeals has characterized the
Jackson v. Virginia standard as follows: "Considering all of the evidence in the light
most favorable to the verdict, was a jury rationally justified in finding guilt beyond
a reasonable doubt." Brooks v. State,323 S.W.3d 893, 899 (Tex.Crim.App.2010),
citing Jackson v. Virginia,443 U.S. at 319. The standard set forth in Jackson v.
Virginia, "is the only standard that a reviewing court should apply in determining
whether the evidence is sufficient to support each element of a criminal offense that
the State is required to prove beyond a reasonable doubt." Broolcs at9l2.
According to the Texas Penal Code, a person commits theft if he unlawfully
appropriates property with intent to deprive the owner of the property. Tex. Penal
Code $31.03(a). An essential element to the offense of theft is proof of ownership.
10
The State must prove that the complaining witness alleged in the charging instrument
had title to the property, possession of it, or a greater right of possession than the
defendant. Inman v. State,650 S.W.zd 417,4t9 (Crim. App. 1983). To show
corporate ownership, it is sufficient to allege ownership in a "special owner", such
as an employee who has care, custody, and control over the property. Harrell v.
state, 852 S.W.zd 521, 523 (Tex. Crim. App. 1993).
No evidence was introduced at trial establishing the owner ofthe "six pairs of
shorts"2 removed from petitioner's coveralls. Mr. Rome never identified the items
as belonging to him or his employer, Academy Sports & Outdoors. The six pairs of
shorts did not contain security tags. (RR Vol. 3, 4l-42). There are no price tags or
identiffing markers on the six pairs of shorts showing that they belong to the
complaining witness or his employer. (RR Vol. 5, Ex. 5&6). The video evidence
introduced at trial does not show petitioner taking the six pairs of shorts later
removed from her clothing in the security office from the display racks in the store.
Qd, Ex.4). Because there is no evidence in the record as to ownership of the property
listed in the indictment, proof of theft beyond a reasonable doubt is not possible.
2"Six pairs of shorts" is the description of the property set forth in the indictment. (CR 9). No t-
shirts are mentioned in the indictment.
L1
PRAYER
WHEREFORE, PREMISES CONSIDERED, Petitioner prays that this Court
reverse the judgment and sentence in this case and enter an order of acquittal in her
favor.
Respectfu lly submitted,
/s/ Joe David Wells
Joe David Wells
State Bar No. 90001904
P.O. Box 2064
Houston, Texas 77252
Tel (281) 410-8778
Fax (832) 20r-0467
ATTORNEY FOR PETITIONER
12
CERTIFICATE OF SERYICE
I, Joe David Wells, do certifu that a true and correct copy of this Petitioner's
Brief was delivered to the Harris County District Attorney's Office by electronic
filing contemporaneously with the filing of this document.
/s/ Joe David Wells
Joe David Wells
TRAP 9.4(il(3) CERTIFICATE OF COMPLIANCE
I, Joe David Wells, do certify that this document complies with Texas Rule of
Appellate Procedure 9.4(iX3) and has a word count of 2,021words.
/s/ Joe David Wells
Joe David Wells
13
EXHIBIT A
1.4
Aflirmed as Modified and Memorandum Opinion filed March 5,2015.
In The
!frsurttenth (f,uurt uf AppEeLn
NO. 14-14-00335-CR
BRENETTA SHERMAN, Appellant
v.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Cause No. 1389343
MEMORANDUM OPINTON
Appellant Brenetta Sherman appeals her conviction for theft. See Tex. Penal
Code Ann. $ 31.03 (West Supp. 2014). In two issues appellant contends (1) the
trial court erred by entering judgment that does not comply with article 42.01 of
the Texas Code of Criminal Procedure; and (2) the evidence is insufficient to
support her conviction. Finding merit in appellant's first issue, we modify the trial
court's judgment to reflect that appellant pleaded not guilty before a jury, that the
trial court accepted the jury's verdict, and that the jury assessed punishment. As
modified, we affirm.
[. BacxcnouND
Scott Rome, the loss prevention officer for Academy Sports and Outdoors,
testified that on May 27,2013, he observed appellant and her daughter in the Nike
men's department at the store. He closely watches that area because it contains
expensive merchandise. He saw appellant and her daughter select a large number
of items, approximately 18 to 20, from the Nike men's area. It appeared to Rome
that they were not taking much time to look at the merchandise, but were selecting
it at random.
Rome observed appellant and her daughter take l8 to 20 clothing items into
the fitting room. When appellant and her daughter left the fitting room, appellant's
daughter was carrying "about five" items and appellant was carrying nothing but
her purse. Rome walked into the fiUing room to see if the other items had been left
in the fitting room, but the room was empty. Appellant's daughter retumed the
items she was carrying to the Nike men's department. Rome watched as appellant
and her daughter walked past the cash registers and outside the store without
paying for any merchandise.
Outside the store Rome stopped appellant and identified himself as an
employee of the Academy Loss Prevention Department. Rome asked appellant and
her daughter to return to the store. Appellant accompanied Rome to the loss-
prevention office. As they walked back to the office appellant began to apologize
and asked Rome not to call law enforcement. Appellant began pulling Nike clothes
out of the coveralls she was wearing. She pulled out seven T-shirts and six pairs of
shorts, with a total value of $305.89. At that time Rome stepped out and called the
police. Appellant never attempted to pay for the items. Rome, as an Academy
2
employee, testified that he did not give her permission to take them.
A recording of the store's surveillance video was played for the jury. The
video showed appellant and her daughter looking at clothes and making selections.
It also showed Rome observing appellant and her daughter as they went into the
fitting room with several items of clothing. The video reflects appellant's daughter
leaving the fifting room with approximately five items of clothing while appellant
carried nothing but her purse. The video then shows appellant's daughter retuming
the items she carried out of the fiuing room, and both women walking past the
point of sale without paying for any items. The video shows Rome following the
women out of the store then returning with them as they walked toward the office.
II. Drscussroi,,l
A. The evidence is sufficient to support appellant's conviction.
In her second issue appellant argues the evidence is insufficient for the jury
to find beyond a reasonable doubt that appellant committed the offense of theft.
Specifically, appellant argues the State failed to establish the owner of the "six
pairs of shorts" removed from appellant's coveralls.
In determining sufficiency of the evidence we consider all the evidence, both
direct and circumstantial, and any reasonable inferences which can be drawn. See
Claytonv. State,235 S.W.3d772,778 (Tex. Crim App. 2007). The jury is the sole
judge of the credibility of the witnesses and of the evidence presented. See Villani
v. State,116 S.W.3d297,301 (Tex. App.-Houston [14th Dist.] 2003, pet. refd).
We view all the evidence in the light most favorable to the verdict and determine,
based on that evidence and any reasonable inferences therefrom, whether any
rational fact finder could have found the elements of the offense beyond a
reasonable doubt. Gear v. State,340 S.W.3d743,746 (Tex. Crim. App. 2011).
The State had to prove beyond a reasonable doubt that appellant
appropriated property valued at under $1,500 without the owner's effective
consent, and with the intent to deprive the owner of the property. See Tex. Penal
Code Ann $ 31.03 Appellant argues that the State failed to establish the owner of
the "six pairs of shorts" removed from appellant's coveralls. Appellant argues
Rome never identified the items as belonging to him or his employer, Academy
Sports & Outdoors, Appellant further argu€s that the shorts did not contain security
tags or price tags as identifying markers.
The indictment named Scott Rome as the owner of the property. "Owner"
means a person who has title to or possession of the property, whether lawful or
not, or one who has a greater right to possession of the properfy than the actor.
Tex. Penal Code Ann $ 1 07(a)(35) (West Supp. 2014). Where stolen property is
owned by a corporation, it is proper to allege in the indictment that such properly
was taken from the custody and control of a natural person acting for the
corporation. Castillo v. State, 469 S.W.zd 572, 573 (Tex. Crim. App. L97l)',
Campos v. State,317 S.W.3d768"774 (Tex. App.-Houston [1st Dist.] 2010, pet.
refd).
Appellant had no right to possession of the unpaid-for clothing found inside
her coveralls. The evidence presented at trial showed Rome was employed as a
loss-prevention manager by the store. As an employee who had responsibility for
serving the store's customers, Rome qualifies as an "owner" with a greater right to
possession of the clothing than appellant. See Byrd v. State, 336 S.W 3 d 242, 252
(Tex. Crim. App. 2011). Rome testified that he saw appellant remove the shirts and
shorts from the display racks, walk into the fiUing room with the items, and walk
out of the store without paying for any items. As appellant pulled the items out of
her coveralls, she asked Rome not to call the police, and that if he would not report
the theft she would never shoplift again. Appellant's actions and words are
consistent with the jury's implied finding that the six pairs of shorts found in her
coveralls belonged to Academy. The jury also reviewed the surveillance video,
which showed appellant choosing items in the men's department, walking into the
fitting room with the items, but walking out of the fiuing room and the store not
carrying any items of clothing. Reviewing the evidence in the light most favorable
to the verdict, we find a rational jury could have found that the items taken by
appellant belonged to Academy, and that Rome as the loss-prevention officer, had
a greater right to possession of the items than appellant. We overrule appellant's
second issue.
B. The judgment should be modified to conform to the requirements of article
42.01of the Texas Code of Criminal Procedure.
In her first issue appellant argues the trial court erred in entering a judgment
that does not comply with article 42.01of the Texas Code of Criminal Procedure.
Article 42.U requires a trial court"s judgment to reflect, in pertinent part:
1. The title and number of the case,
2. That the case was called and the parties appeared, naming the
attorney for the state, the defendant, and the attomey for the
defendant, or, where a defendant is not represented by counsel,
that the defendant knowingly, intelligently, and voluntarily
waived the right to representation by counsel;
3. The plea or pleas of the defendant to the offense charged,
4. Whether the case was tried before a jury or a jury was waived;
5. The submission of the evidence, if any;
6. In cases tried before a jury that the jury was charged by the court;
7. The verdict or verdicts of the jury or the finding or findings of the
court,
8. In the event of a conviction that the defendant is adjudged guilty
of the offense as found by the verdict of the jury or the finding of
the court, and that the defendant be punished in accordance with
the jury's verdict or the court's finding as to the proper
punishment;
Tex. Code Crim. Proc. Ann. art. 42.01, g 1 (West Supp. 2014).
As appellant points out, the judgment in this case inaccurately reflects (1) a
plea to the court, (2) a plea bargain agreement; (3) no verdict of the jury; and (4)
no notation of whether the jury was charged by the court.
Courts of appeals have the authority to modift a trial court's judgment and
affirm it as modified. Tex. R. App. P 43.2(b); Bigley v. State,865 S.W.2d26,27-
28 (Tex. Crim. App. 1993); Haggerty v.State,429 S.W.3d l, 12 (Tex. App-
Houston [14th Dist.] 2A13, pet. refd). When a court of appeals has the necessary
information and evidence before it for modification, it may modi$, the erroneous
judgment on appeal. Stow v, State, 126 S.W.3 d 647, 654-55 (Tex. App.-Houston
[14th Dist.] 2004, pet. refd). The State agrees the judgment should be modified.
Therefore, we sustain appellant's first issue and modifr the judgment in this
case to reflect that (l) appellant entered a plea of not guilty to a jury; (2) the jury
was charged by the court; (3) the jury found appellant guilty; and (4) the jury
assessed punishment at four years' confinement in the Instifutional Division of the
Texas Department of Criminal Justice.
As modified, we affirm the trial court's judgment.
lsl John Donovan
Justice
Panel consists of Justices Christopher, Donovan, and Wise.
Do Not Publish Tex. R. App. P 47 2(b).
-