Luciana Laryssa Lewis v. State

Opinion issued March 16, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01–05–00648–CR

LUCIANA LARYSSA LEWIS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Cause No. 974360

O P I N I O N

Luciana Laryssa Lewis, appellant, was charged with the felony offense of

aggregate theft of more than $20,000 and less than $100,000. Tex. Pen. Code Ann.

§ 31.09 (Vernon 2003), § 31.03(a), (e)(5) (Vernon Supp. 2005). Appellant pleaded

not guilty. The jury found appellant guilty, and the trial court assessed punishment

at 5 years’ confinement in prison.

In four points of error, appellant argues that (1) the evidence was legally

insufficient to prove ownership, lack of consent, and identity; (2) the evidence was

factually insufficient to prove identity; and (3) the trial court erred by including the

law of parties in the jury charge.

We affirm.

Background

At the time in question, appellant worked at a Home Depot in Spring, Texas,

and, in May of 2002, had been transferred to the special services desk. At the special

services desk, appellant was in charge of, among other things, processing special

orders and refunding purchases. On July 15, 2002, Karen Soete, a bookkeeper for

Home Depot, received a call from Compass Bank asking why they had credited

money to an account that had not purchased anything from Home Depot. Records

revealed that appellant had processed the transaction. Soete testified that when she

asked appellant about it, appellant simply responded that the customer had requested

that it be refunded to that account. This began the investigation.

Diana Diaz, the operations manager for Home Depot, looked through the

records of refunds and found a number of inconsistencies between May and July

2002. The investigation revealed that over $20,000 had been “refunded” to the bank

accounts of Gladora Lewis and April Donnely, even though the records showed that

nothing had been purchased on either account. All of the original purported

purchases had been by other parties on other accounts. Records showed that all of

the purchases and all of the refunds, except one, had been processed on appellant’s

computer and register and that appellant had initialed the refund slips. The only

refund that was not done on appellant’s computer was done on the computer of a

trainee, Becky Rather, while appellant was training her.

On the day that Diaz intended to confront appellant about what she had found,

appellant called her asking to take the day off because her uncle was gravely sick and

she needed to visit him. Diaz told appellant that she would try to find a replacement

for her. When the time came to confront appellant, Diaz discovered that appellant

had left three minutes earlier. Diaz left the store, trying to find appellant. Diaz

located appellant leaving the store grounds. Appellant refused to return and, without

asking what Diaz wanted to discuss, said only that she did not have to talk to Diaz.

Appellant never returned to work.

Legal Sufficiency

In her first three points of error, appellant argues that the trial court erred by

not granting appellant’s motion for instructed verdict.

A. Standard of Review

We treat a complaint of a denial of a motion for directed verdict as a challenge

to the legal sufficiency of the evidence to support a conviction. Williams v. State , 937

S.W.2d 479, 482 (Tex. Crim. App. 1996); Tyler v. State , 137 S.W.3d 261, 264 (Tex.

App.—Houston [1st Dist.] 2004, no pet.). A legal-sufficiency challenge requires us

to determine whether, after viewing the evidence in the light most favorable to the

verdict, any rational trier of fact could have found the essential elements of the

offense beyond a reasonable doubt. Johnson v. State , 23 S.W.3d 1, 7 (Tex. Crim.

App. 2000); Howley v. State , 943 S.W.2d 152, 155 (Tex. App.—Houston [1st Dist.]

1997, no pet.). Although our analysis considers all of the evidence presented at trial,

we may not re-weigh the evidence and substitute our judgment for that of the fact

finder. King v. State , 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). B. Analysis

“A person commits an offense if he unlawfully appropriates property with

intent to deprive the owner of property.” Tex. Pen. Code Ann. § 31.03(a).

Appropriation of property is unlawful if “it is without the owner’s effective consent.”

Tex. Pen. Code Ann. § 31.03(b)(1).

Appellant challenges three elements of the charge of theft. First, appellant

argues that the evidence was insufficient to prove that the complainant was the owner

of the stolen money. Second, appellant argues that the evidence was insufficient to

prove that the money was taken without the effective consent of the complainant.

Finally, appellant argues that the evidence was insufficient to prove that appellant

committed the offense.

1. Owner of the Stolen Property

The charge accuses appellant of appropriating property from Soete, the

complainant. Appellant argues that all the money was appropriated from Home

Depot, not Soete.

The Texas Penal Code’s definition of “owner” includes a person who has “a

greater right to possession of the property than the actor.” Tex. Pen. Code Ann.

§ 1.07(a)(35)(A) (Vernon Supp. 2005). “Possession” is defined as “actual care,

custody, control, or management.” Tex. Pen. Code Ann. § 1.07(a)(39).

An allegation of ownership may be alleged in either the actual owner or a

special owner. Tex. Code Crim. Proc. Ann. art. 21.08 (Vernon 1989); Freeman v.

State , 707 S.W.2d 597, 603 (Tex. Crim. App. 1986). “A ‘special owner’ is an

individual who is in custody or control of property belonging to another person.”

Harrell v. State , 852 S.W.2d 521, 523 (Tex. Crim. App. 1993). When a corporation

is the owner of the property that has been stolen, it is the preferable pleading practice

to allege special ownership in a natural person acting for the corporation. Simpson

v. State , 648 S.W.2d 1, 2 (Tex. Crim. App. 1983); Harris v. State , 846 S.W.2d 960,

962 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d).

Appellant argues that because both appellant and Soete were employees of

Home Depot, Soete cannot be said to have had a greater right of possession than

appellant. Appellant’s argument on appeal is inconsistent with her testimony at trial.

During the State’s cross-examination, appellant admitted that Home Depot was in

charge of the money, that she was not authorized to move around funds without the

approval of Home Depot, and that Soete had a greater right of possession of the

property involved than appellant had. We hold that the evidence was legally

sufficient to show that Soete had a greater right of control in the property than

appellant.

We overrule appellant’s first point of error.

2. Lack of Effective Consent

At trial, the State established the following: Certain transactions were charged

to various people, and later the transactions were refunded to the accounts of Donley

and Gladora Lewis. No Home Depot purchases were ever charged to the accounts of

Donley and Gladora Lewis. One of the people that merchandise was charged to,

Eugene Short, testified that he had never been to that Home Depot, had never charged

anything from that Home Depot, and never received merchandise from that Home

Depot. The charging and refunding required the use of a store computer and register,

both of which appellant was logged into, except for one refund that was done on a

register that Rather was logged into. The one on Rather’s register was done while

Rather was a new employee being trained by appellant. Appellant initialed all of the

transactions, including the one on Rather’s register. For some of the transactions,

appellant wrote in the name of the approving manager. A Home Depot employee is

not authorized to credit an account other than the account used to make a purchase.

We hold that the evidence was legally sufficient to establish a lack of effective

consent. We overrule appellant’s second point of error.

3. Identity

In her third point of error, appellant states that the evidence was insufficient to

establish intent. However, all of appellant’s arguments dispute that appellant was the

party who committed the theft. Therefore, we review the record for evidence of

identity. See Tex. R. App. P. 38.1(h).

The evidence established that all of the fraudulent transactions took place while

appellant was working. They were performed on computers and registers that showed

she was the assigned employee. The receipts contained appellant’s handwriting and

signature. All of this evidence leads to a reasonable conclusion that appellant was the

party committing the theft.

We hold that the evidence was legally sufficient to support a finding that

appellant committed the theft.

Factual Sufficiency

In her first three points of error appellant challenges the denial of a directed

verdict. A bare complaint about the denial of a motion for instructed verdict only

raises a challenge to the legal sufficiency of the evidence. Williams , 937 S.W.2d at

482 . However, for her third point of error, appellant cites factual sufficiency law and

applies it to her argument. Because we construe briefs liberally, and because a

factual-sufficiency challenge can be raised for the first time on appeal, we include a

review of the factual sufficiency of the evidence for identity. See Tex. R. App. P.

38.1(e), 38.9; Washington v. State , 127 S.W.3d 197, 203 (Tex. App.—Houston [1st

Dist.] 2003, pet. dism’d).

A. Standard of Review

In a factual-sufficiency review, we view all of the evidence in a neutral light,

and we will set the verdict aside only if the evidence is so weak that the verdict is

clearly wrong and manifestly unjust, or the contrary evidence is so strong that the

standard of proof beyond a reasonable doubt could not have been met. Escamilla v.

State , 143 S.W.3d 814, 817 (Tex. Crim. App. 2004) (citing Zuniga v. State , 144

S.W.3d 477, 481 (Tex. Crim. App. 2004)). Our evaluation may not intrude upon the

fact-finder’s role as the sole judge of the weight and credibility accorded any

witness’s testimony. Cain v. State , 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).

The fact-finder alone determines what weight to place on contradictory testimonial

evidence, as it depends on the fact-finder’s evaluation of credibility and demeanor.

Id. at 408 . In conducting a factual-sufficiency review, we must discuss the evidence

that, according to appellant, most undermines the jury’s verdict. See Sims v. State ,

99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

B. Analysis

At trial, appellant testified that she did not commit the theft. The jury is the

exclusive judge of the facts, the credibility of the witnesses, and the weight to be

given to the witnesses’ testimony. Jaggers v. State , 125 S.W.3d 661, 672 (Tex.

App.—Houston [1st Dist.] 2003, pet. ref’d). The jury may believe all, some, or none

of any witness’s testimony. See Sharp v. State , 707 S.W.2d 611, 614 (Tex. Crim.

App. 1986) (stating that jury “could choose to believe or not believe the witnesses,

or any portion of their testimony”).

The only other evidence presented suggesting that appellant did not commit the

theft was testimony from the witnesses that someone else could have used appellant’s

computer and register to perform the transactions while she was away or that a

customer could have brought the items back and had appellant refund the charges to

a different account under a different name. However, there was no evidence

presented to suggest that this is what actually did happen. The jury’s decision is not

manifestly unjust merely because the jury resolved conflicting views of evidence in

favor of the State. Cain , 958 S.W.2d at 410 .

We hold that the evidence was factually sufficient to support a finding that

appellant committed the theft. We overrule appellant’s third point of error.

Jury Charge

In her fourth point of error, appellant argues that the court erred in including

the law of parties in the jury charge. Appellant argues that no evidence shows that

Gladora Lewis or April Donely committed the offense and that no evidence shows

that appellant aided them.

A. Standard of Review

“In general, an instruction on the law of parties may be given to the jury

whenever there is sufficient evidence to support a jury verdict that the defendant is

criminally responsible under the law of parties.” Ladd v. State , 3 S.W.3d 547, 564

(Tex. Crim. App. 1999). We therefore review the record for any evidence that more

than one party acted with the requisite intent to assist in carrying out the commission

of the crime. See id.

B. Analysis

Under the law of parties, a person is criminally responsible for the conduct of

another if, “acting with intent to promote or assist the commission of the offense, he

solicits, encourages, directs, aids, or attempts to aid the other person to commit the

offense.” Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 2003). The evidence must

show that, at the time of the offense, the parties were acting together, each

contributing some part toward the execution of their common purpose. Ransom v.

State , 920 S.W.2d 288 , 302 (Tex. Crim. App. 1994); Ahrens v. State , 43 S.W.3d 630 ,

634–35 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d). In determining whether

a defendant participated in an offense as a party, the factfinder may examine the

events occurring before, during, and after the commission of the offense and may rely

on actions of the defendant that show an understanding and common design to

commit the offense. Ransom , 920 S.W.2d at 302.

The charge to the jury on the law of parties read:

[I]f you find from the evidence beyond a reasonable doubt that in Harris

County, Texas, Gladora Lewis and/or April Donnely, heretofore on or about

the 12th day of May, 2002 did then and there unlawfully pursuant to one

scheme or continuing course of conduct, appropriate, by acquiring or otherwise

exercising control over property, namely, cash money, owned by Karen Soete,

with the intent to deprive Karen Soete of the property and the total value of the

property appropriated was over twenty thousand dollars and under one hundred

thousand dollars, and that the defendant, Luciana Laryssa Lewis, with the

intent to promote or assist the commission of the offense, if any, solicited,

encouraged, directed, aided or attempted to aid Gladora Lewis and/or April

Donnely to commit the offense, if she did, then you will find the defendant

guilty of theft of property of the total value of over twenty thousand dollars and

under one hundred thousand dollars, as charged in the indictment.

The State sought to admit this charge under the theory that appellant assisted

Gladora Lewis and April Donnely in appropriating over $20,000. Short, one of the

people that the merchandise was charged to, testified that he was a Southwestern Bell

customer. The State later presented Shunta Brown. Brown testified that she worked

for Southwestern Bell during the time in question. She had access to the customers’

information including name, address, and social security number. Brown knew April

Donely. April Donely had lived with Brown for a brief time and had used Brown’s

address for a mailing address. During the time in question, appellant had lived in the

same apartment complex as Brown. Brown testified that she was related to Gladora

Lewis. Finally, the money was deposited into the accounts of Gladora Lewis and

April Donnely.

We hold that there was sufficient evidence to warrant including the law of

parties in the jury charge.

We overrule appellant’s fourth point of error.

Conclusion

We affirm the judgment of the trial court.

Laura Carter Higley

Justice

Panel consists of Justices Taft, Higley, and Bland.

Publish. See Tex. R. App. P. 47.2(b).