Dayna Martinez v. State

Opinion issued June 23, 2011

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-09-00670-CR

———————————

Dayna LAREE Martinez , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 239th Judicial District Court

Brazoria County, Texas

Trial Court Case No. 55,534

MEMORANDUM OPINION

A

jury found appellant, Dayna Laree Martinez, guilty of the offense of theft of

property worth more than $1,500 but less than $20,000. [1] The trial court then assessed appellant’s punishment

at confinement for two years, suspended the sentence, and placed appellant on

community supervision for three years.

In her sole issue, appellant contends that the evidence is legally and

factually insufficient to support her conviction.

We affirm.

Background

Irene

Montiel, who previously worked for the complainant, the Texas Health and Human Services Commission

(“THHSC”), testified that one of her duties at the THHSC was to conduct

“screenings” to determine an individual’s eligibility for food stamps and

benefits by verifying the person’s income and the size of their household. As part of the process, a client would first

fill out an “Application for Assistance for Food Stamps and Medicaid” that

Montiel would review. Appellant first filed

an assistance application with THHSC on August 2, 2005, and Montiel interviewed

appellant on August 19, 2005, to determine her eligibility. As part of THHSC’s process, Montiel verified

appellant’s income by using four “check stubs” that appellant had provided from

her then current employer, Pilgrim’s Cleaners.

Montiel explained that every THHSC client is informed that any changes

in their income must be reported to THHSC within ten days. Appellant, on her application, indicated that

she was at the time employed by Pilgrim’s Cleaners, and she did not provide any

“check stubs” to THHSC from Claire’s Boutique.

Louise

Walters, who had previously worked as an “eligibility determination specialist”

in THHSC’s food stamp and Medicaid office, testified that appellant filled out

a second THHSC assistance application and filed it with her office on January

20, 2006. On February 4, 2006, Walters,

by telephone, interviewed appellant to verify her income, the size of her

household, and her assets to see if she qualified for assistance and, if so,

the amount of assistance she was qualified to receive. On her application, appellant listed her then

current employer as Claire’s Boutique and stated that she received wages of $350

biweekly. Walters determined that appellant

was eligible to receive THHSC assistance and food stamps. In verifying her income, appellant provided

Walters with three pay stubs, which Walters explained “pretty much” matched up

with the amount that appellant had reported on her application. Walters told appellant that it was her

responsibility to report to THHSC any changes in her income, household

composition, or address within ten days of the change.

Kameshia

McCoy, a THHSC welfare fraud investigator, testified that she was assigned to

appellant’s case after a discrepancy was noted.

As part of her investigation, McCoy contacted appellant’s employer,

Claire’s Boutique, and asked for all of her employment records from the date of

her hire. McCoy compared appellant’s

first application for THHSC assistance, dated August 2, 2005, in which appellant

listed Pilgrim’s Cleaners as her employer, to her second application, dated

January 20, 2006, in which appellant listed Claire’s Boutique as her employer. During her investigation, McCoy found that in

November 2005, appellant had provided notice that she was no longer employed by

Pilgrim’s Cleaners, but was then employed by Claire’s Boutique. However, McCoy learned that appellant had

begun working at Claire’s Boutique in August 2005. In her second THHSC application for

assistance, dated January 20, 2006, appellant listed her employer as Claire’s

Boutique with her income as “$350 biweekly,” which McCoy explained was the

amount of income that she used to calculate the amount of appellant’s

assistance.

Based on appellant’s two

applications and the documents that McCoy received from Claire’s Boutique,

McCoy determined that appellant was “over her [income] limit” to receive food

stamps. By “over her [income] limit,” McCoy

explained that there is a “limit of income” that applicants may make before

becoming disqualified to receive food-stamp benefits. The limit is approximately $1,600 per month,

and appellant’s income had been in excess of $1,600 per month for approximately

one year. Appellant, in total, was

“over-issued” $4,194.09 in THHSC assistance.

McCoy reached this number by comparing the “employment verification from

Claire’s Boutique” with the food stamp benefits that appellant had received previously”

to “determine[] what she was actually eligible for.” The documentation from Claire’s Boutique revealed

that appellant had earned income in the amounts of $1,050, $1,080, $1,300, and

$923, on a “weekly to biweekly basis.”

McCoy explained that if appellant had reported her income correctly, she

would not have received any assistance under her second application, and she

would have received less assistance under her first THHSC application. McCoy further explained that under the first THHSC

application, the amount that appellant actually received was an

“overpayment.” In calculating $4,194.09 as

the total overpayment made by THHSC to appellant, McCoy factored in the fact that

under her first application, appellant would still have “actually receive[d]

some of those benefits.”

On

cross-examination, McCoy explained that a person is not necessarily

disqualified from receiving assistance if she earns over $1,600 per month because

there are other factors that THHSC takes into account. Here, however, McCoy explained that

appellant’s income was a “big factor.”

Appellant

testified that she did fill out the two THHSC applications for assistance, but

she explained that the notation of “eight hours $350 biweekly” meant that she made

“[$]8 an hour, about [$]350 biweekly.”

She provided income verification in the form of her paycheck stubs,

indicating that she had earned $8 an hour.

Appellant stated that the testimony that she did not inform the THHSC of

her change in employment until November was “not true” because she, in fact,

did notify THHSC, but she did not hear back from it for two to three

months. And she was never given an

opportunity to “go over” the amounts, how much income she had received, or what

her hours were at the store after THHSC had noticed a “problem.”

Standard of Review

We review the legal sufficiency of the evidence “by

considering all of the evidence in the light most favorable to the prosecution”

to determine whether any “rational trier of fact could have found the essential

elements of the offense beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307 , 318–19, 99 S. Ct.

2781 , 2788–89 (1979). Evidence is legally insufficient when

the “only proper verdict” is acquittal. Tibbs v. Florida , 457 U.S. 31 , 41 – 42, 102 S. Ct. 2211, 2218 (1982). Our role is that of a

due process safeguard, ensuring only the rationality of the trier of fact’s

finding of the essential elements of the offense beyond a reasonable

doubt. See Moreno v. State , 755 S.W.2d 866, 867 (Tex.

Crim. App. 1988). We give deference to

the responsibility of the fact finder to fairly resolve conflicts in testimony,

to weigh evidence, and to draw reasonable inferences from the facts. Williams v. State , 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). However, our duty requires us to “ensure that

the evidence presented actually supports a conclusion that the defendant

committed” the criminal offense of which she is accused. Id .

We now review the factual

sufficiency of the evidence under the same appellate standard of review as that

for legal sufficiency. Ervin v. State , 331 S.W.3d 49 , 52–56 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d)

(citing Brooks v. State , 323 S.W.3d 893 , 894–913 (Tex. Crim. App.

2010)).

Sufficiency of the Evidence

In

her sole issue, appellant argues that the evidence is legally and factually insufficient

to support her conviction because there is no evidence that she unlawfully

appropriated property valued between $1,500 and $20,000. Although appellant concedes that she received

$4,194.09 in assistance, she asserts that the evidence “fails to indicate if

this amount is allowable in that [McCoy] failed to verify or consider all

allowable deductions to appellant’s income in determining eligibility for benefits.”

A person commits the felony offense

of theft if she unlawfully appropriates property valued between $1,500 and

$20,000 with the intent to deprive the owner of the property. Tex.

Penal Code Ann. § 31.03(e)(4)(A) (Vernon Supp. 2010).

Here,

appellant asserts that the question is not one regarding the amount of THHSC

funds that she had actually received, but rather the amount of THHSC funds that

she had received “unlawfully.” She argues

that to “determine this element the jury need[ed] to have evidence [that] the

amount of funds received was over what would have been received with

consideration of [her] allowable deductions compared to the allegations of

appellants acts of fraud or deception.” Appellant

asserts that the jury was only informed that her “gross pay was ‘over her

limit,’” but notes that evidence of one’s gross income is not the only factor

to consider in determining one’s eligibility for benefits.

If a

defendant “ proves by a preponderance of

the evidence that [s]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” alleged to have been stolen. Tex.

Penal Code Ann. § 31.08 (Vernon 2003) (emphasis added.). Appellant argues that because McCoy did not

provide evidence of her deductions, which should have been considered in

determining her eligibility for assistance, the jury was unable to determine

the actual amount of assistance that she received “unlawfully.” She asserts that “[w]ithout an established

amount of benefits available to the appellant by a complete review of the

factors to be considered in determining appellant’s available benefits, the

evidence is insufficient to support the allegation [that] appellant unlawfully

obtained more than $1,500.00 but less than $20,000.00.”

However, appellant had the burden

to prove, by a preponderance of the evidence, that she had a “legal interest”

in the THHSC assistance that she had received before any such amount could be

deducted from the value of the assistance she actually received. See id. ;

Tenorio v. State , 299 S.W.3d 461, 463

(Tex. App.—Amarillo 2009, pet. ref’d).

Appellant did not introduce any evidence of the amount of THHSC

assistance that she was qualified to receive or any evidence of any deductions

that she was entitled to take to determine her eligibility for THHSC

assistance.

Viewing

all of the evidence in the light most favorable to the State, McCoy testified

that appellant had received $4,194.09 more in THHSC assistance than she was

qualified to receive by underreporting her income. McCoy calculated this amount by using a

computerized-budget system, noting the amounts of THHSC assistance that

appellant had received each month, comparing these amounts to appellant’s

actual income from Claire’s Boutique, and determining that appellant’s income

was “over [the] limit” to qualify for THHSC assistance. Appellant does not dispute that the evidence

indicates that she received $4,194.09 in THHSC assistance. Rather, she asserts that McCoy did not

testify as to whether this amount was “allowable in that [McCoy] failed to

verify or consider all allowable deductions to appellant’s income in

determining eligibility.” Although McCoy

did testify that factors other than gross income can be considered in

determining assistance eligibility, she testified that appellant was “over issued”

$4,194.09 in THHSC assistance and this number was “accurate.” Additionally, there is no evidence that any

of the “other factors” were present in appellant’s case, which would have

brought her below the $1,600 income-qualification limit. The jury could have reasonably concluded that

appellant, with the requisite intent, unlawfully appropriated $4,194.09 in

THHSC assistance. See Williams , 235 S.W.3d at 750 (stating that it

is the function of the trier of fact to resolve any conflict of fact, to weigh

any evidence, and to evaluate the credibility of any witnesses). Accordingly,

we hold that the evidence is sufficient to support her conviction. See

Ervin , 331 S.W.3d at 52 – 56.

We

overrule appellant’s sole issue.

Conclusion

We

affirm the judgment of the trial court.

Terry

Jennings

Justice

Panel

consists of Justices Jennings, Higley, and Brown.

Do

not publish. Tex. R. App. P. 47.2( b).

[1] See

Tex. Penal Code Ann . §

31.03(e)(4)(A) (Vernon Supp. 2010).