Court of Appeals of Texas, Eighth District, El Paso
from the County Court of Presidio County, Texas (TC# 5810)
McClure, C.J., Rodriguez, and Hughes, JJ.
CRAWFORD McCLURE, Chief Justice.
was charged with theft of more than $500 and less than $1,
500. The jury returned a guilty verdict, imposed a fine,
assessed restitution, and sentenced her to "probation of
sentence for one year."
issues, she challenges the sufficiency of the evidence,
prosecutorial misconduct, improper opinion testimony, and
ineffective assistance of counsel. For the reasons that
follow, we affirm.
Morales worked for the Presidio County tax office. At
approximately 11:45 a.m. on July 21, 2011, Appellant came to
the office with her daughter and her niece, bypassed the
payment window, and greeted Morales at her desk. Morales
spent ten or fifteen minutes assisting Appellant with a title
transfer. A co-worker indicated that it was time to go to
lunch and locked the office door. Appellant paid Morales for
explained to the jury that when the cash register opens, she
customarily places money she receives on top of it, closes
the drawer, determines the amount of change due, opens the
cash register again, gives the correct change, puts the money
paid away, and closes the drawer. After giving Appellant her
change, Morales closed the drawer but left Appellant's
money on top. She was on the telephone around 12:05 p.m. and
left Appellant standing near the cash register. After she
completed the call, Morales noticed that the money was
missing but she could not remember whether she had put it in
the drawer. She did not mention anything to Appellant at the
time because she was not sure what had happened. Morales
escorted Appellant out of the office between 12:06 and 12:15
p.m. because her co-worker was in a hurry to go to lunch. She
did not check the register before leaving the office because
she was running late and needed to return by 1:00. But she
knew that if she were short any money at the end of the day,
she was required to pay it herself so that all money received
and reported during the day would be deposited. Consequently,
Morales borrowed money from her son to make up the shortage.
She then began giving money to her co-worker, Annabel
Rodriguez, who acted as a treasurer so that Morales could
prove to her supervisor, Norma Arroyo, that she was repaying
the money herself.
Morales reported the money stolen, Sheriff Danny Dominguez
contacted Texas Ranger Jeffrey Vajdos to assist him as the
matter was a potential public corruption case. Morales and
Appellant became the focus of the investigation as they were
the only persons who had the opportunity to commit the theft.
gave a written statement on August 16, 2011, but Ranger
Vajdos was not present. Noting that the statement lacked
details, Vajdos decided to interview Morales himself. Despite
his thorough and harsh one-hour interview, Morales adamantly
denied any involvement in the theft, was consistent in her
statements, never wavered in her descriptions of what had
occurred, and expressed remorse for violating office policies
and allowing the theft to occur. Vajdos was not concerned
that Morales did not look for the money in the register
before leaving for lunch. He recalled that her lunch
companion did not learn about the missing money until the
following week. He thought it reasonable that Morales had not
reported the money missing until later in the day after she
had exercised due diligence. He did not believe Morales was
motivated to commit theft because the tax office had a policy
that would have required Morales to repay any missing sums
and he was aware that Morales was paying back the money
pursuant to the policy. He did find it odd that Rodriguez was
collecting the money Morales was repaying but was not
providing receipts to Morales or writing down the amounts
paid. Instead, she simply noted the amount Morales owed.
Vajdos did not obtain another statement from Morales, and
could only speculate as to why Morales was repaying the
county when she should have been repaying her son.
Vajdos and Sheriff Dominguez interviewed Appellant at her
home in March 2012, and created an audio recording of the
27-minute interview. Appellant gave the officers the receipts
she had received when she paid the $557.63 for the vehicle
registrations. She explained that the following day, a tax
employee contacted her to say that Morales had accused her of
theft. Appellant had gone to the tax office to confront
Morales but the issue was not resolved. At this stage of the
investigation, Vajdos considered Appellant's explanations
and Texas Department of Public Safety Trooper Gus Trevino
conducted a second interview with Appellant on May 23, 2012.
Appellant was not forcibly detained. Initially, Trevino did
not ask for a written statement because Appellant had denied
her involvement in the theft. He testified that "it took
an hour for her to want to admit 'Okay, I took the money,
and I'll write a statement.'" Appellant spent
approximately ten to fifteen minutes drafting her statement.
Trevino testified that Appellant placed her initials next to
the waiver of constitutional rights on her written statement,
and was provided an opportunity to make changes. At trial,
Appellant's statement was read into the record:
I don't know what happened. The only thing I can say is,
I'm sorry. I'm willing to pay the money and clear up
this issue. By accident - as an accident of the money, I
don't remember what happened, if it was in the paperwork
by accident and I took the money. The amount was $570..
It was from the office of Rosa Morales.
denied that he forced Appellant to write a statement or
instructed her regarding the contents, but he acknowledged
that Appellant did not expressly state, "I took the
testified in her own defense. At approximately 11:45 a.m. on
July 21, 2011, she went to the tax office accompanied by her
daughter and her niece. She waited for Morales to finish
assisting other customers, and when Morales summoned her to
"[c]ome on back[, ]" she entered and sat in
Morales' desk area. She informed Morales that she was
there to complete papers regarding a recreational vehicle.
Morales finished a telephone call before assisting Appellant.
She processed the transaction and told Appellant the fee
would be $557.63. Appellant tendered either $570 or $580 and
Morales placed the money on top of the cash register. She
gave Appellant her change and a receipt for the payment,
instructed Appellant to review everything for accuracy, and
closed the cash register drawer. Appellant testified that she
did not take the money, and did not see what Morales did with
the money because she was quickly reviewing the paperwork to
ensure no changes were necessary since Morales was in a hurry
to leave for lunch. When Appellant informed Morales that the
information was correct, Morales stated, "Okay. Well, I
have to go. I'm running late." Morales then
accompanied Appellant and the girls to the door, and they
left. According to Appellant, Morales never mentioned the
following day, another tax office employee, Alma Carrasco,
called Appellant and told her that Morales alleged that the
exact amount of money Appellant had paid was missing from the
cash register drawer. Appellant said that was impossible
because Morales had given her change and receipts. When
Appellant asked why Morales had waited to tell her the money
was missing, Carrasco replied that Morales wanted to see if
Appellant had a conscience and would return it. Carrasco also
suggested that one of the girls may have taken the money.
then went to the tax office, politely confronted Morales, and
told her that she wanted to address her "face-to-face,
completely honestly . . . about what happened and to clear up
the situation." Morales would not listen to her.
Appellant introduced herself to Norma Arroyo and asked why
she had not been stopped immediately regarding the missing
money, to which Arroyo replied, "I don't know. All I
know is that you stole the money. You took the money."
returned home and within an hour, Deputy Sheriff Marco Baeza
took her written statement. Appellant explained that she did
not understand why she was given change and a receipt and
then was allowed to leave the tax office if something was
wrong. Several months later, Ranger Vajdos and Sheriff
Dominguez came to her home for an interview. Appellant
testified that when Trooper Trevino interrogated her, he
treated her horribly, and alleged from the outset that he
knew she was guilty and had taken the money. Appellant denied
taking the money, but felt pressured because Vajdos continued
asking her, "What are you waiting for? Sign it. Sign the
statement." Appellant was crying when Vajdos told her,
"You can . . . put down that you took it, or you can . .
. write that you took it by mistake, that you took it in the
paperwork[, ]" and suggested many things that she should
put in the statement. Appellant responded, "What could I
put down? Nothing happened." She hesitated as she
attempted to write her statement because she did not know
what to write, but she knew Vajdos wanted her to write
something. She alleged that Trevino had also suggested what
she could write. Although she provided a statement in her own
handwriting, she repeatedly claimed at trial that she was
told what to write.
OF THE EVIDENCE
begin with Appellant's second issue in which she
challenges the sufficiency of the evidence to support her
theft conviction. We address a challenge to the legal
sufficiency of the evidence by considering all 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 offense beyond a reasonable doubt.
Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App.
2010); Jackson v. Virginia, 443 U.S. 307, 319, 99
S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). We defer to the
responsibility of the trier of fact fairly to resolve
conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate
facts. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789;
Isassi v. State, 330 S.W.3d 633, 638 (Tex.Crim.App.
2010)(reviewing court does not reevaluate weight and
credibility of evidence or substitute its judgment for that
of fact finder). Because the jury is the sole judge of the
weight and credibility of the evidence, we presume the fact
finder resolved any conflicting inferences in favor of the
verdict and defer to that resolution. Dobbs v.
State, 434 S.W.3d 166, 170 (Tex.Crim.App. 2014). Our
task is to determine whether, based on the evidence and
reasonable inferences drawn therefrom, a rational juror could
have found the essential elements of the crime beyond a
reasonable doubt. Isassi, 330 S.W.3d at 638.
conducting a sufficiency review, we consider both direct and
circumstantial evidence and all reasonable inferences that
may be drawn from the evidence. Hooper v. State, 214
S.W.3d 9, 13 (Tex.Crim.App. 2007). The standard of review is
the same for both direct and circumstantial evidence cases.
Kuciemba v. State, 310 S.W.3d 460, 462
(Tex.Crim.App. 2010). Each fact need not point directly and
independently to the guilt of the accused, so long as the
cumulative force of all the evidence, when coupled with
reasonable inferences to be drawn from that evidence, is
sufficient to support the conviction. Hooper, 214
S.W.3d at 13. Circumstantial evidence is as probative as
direct evidence in establishing the guilt of an actor, and
circumstantial evidence alone can be sufficient to establish
guilt. Guevara v. State, 152 S.W.3d 45, 49
process requires that the State prove, beyond a reasonable
doubt, every element of the crime charged. Byrd v.
State, 336 S.W.3d 242, 246 n.12 (Tex.Crim.App. 2011),
citing Jackson v. Virginia, 443 U.S. at 315-316, 99
S.Ct. at 2787. We measure the sufficiency of the evidence by
reference to the elements of the offense as defined by a
hypothetically correct jury charge. Villarreal v.
State, 286 S.W.3d 321, 327 (Tex.Crim.App. 2009);
Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.
1997). A hypothetically correct jury charge 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, 953 S.W.2d at 240.
indictment alleges theft in the most general of statutory
terms, the hypothetically correct jury charge embraces any
and every statutorily defined alternative method of
committing the offense that was fairly raised by the
evidence. Taylor v. State, 450 S.W.3d 528, 535
(Tex.Crim.App. 2014), citing Geick v. State, 349
S.W.3d 542, 546 (Tex.Crim.App. 2011). The second amended
information alleged that "on or about the 21st day of
July, A.D., Two Thousand and Eleven, one
ELIZABETH VISCAINO, hereinafter styled Defendant, did there
and then violate § 31.03 of the Texas Penal Code by
unlawfully appropriating property of more than $500.00 but
less than $1, 500.00 with intent to deprive the owner, to
wit; PRESIDIO COUNTY, of property." Under a
hypothetically correct charge, the State was required to
prove beyond a reasonable doubt that on or about July 21,
2011, Appellant unlawfully appropriated property of $500 or
more but less than $1, 500 with the intent to deprive the
owner, Presidio County, of the property. As raised by the
evidence in this case, the hypothetically correct jury charge
would authorize conviction under the following definitions.
"owner" is defined as a person who has title to the
property, possession of the property, whether lawful or not,
or a greater right to possession of the property than the
actor, or is a holder in due course of a negotiable
instrument. Tex. Penal Code Ann. §§ 1.07(a)(35)(A),
(B)(West Supp. 2016); Byrd, 336 S.W.3d at 251.
"Property" is defined in part to encompass tangible
or intangible personal property including anything severed
from the land, or a document -- including money -- that
represents or embodies anything of value. Tex. Penal Code
Ann. §§ 31.01(5)(B-C)(West Supp. 2016).
"Possession" means actual care, custody, control,
or management. Tex. Penal Code Ann. § 1.07(a)(39)(West
person commits theft if she "unlawfully appropriates
property with intent to deprive the owner of
property." Tex. Penal Code Ann. § 31.03(a)(West
Supp. 2016). "Appropriate" means to acquire or
otherwise exercise control over property other than real
property. Tex. Penal Code Ann. § 31.01(4)(B)(West Supp.
2016). An intent to deprive an owner of his property means an
intent to withhold the property from the owner permanently or
for so extended a period of time that a major portion of the
value or enjoyment of the property is lost to the owner, to
restore property only upon payment of reward or other
compensation, or to dispose of property in a ...