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Viscaino v. State

Court of Appeals of Texas, Eighth District, El Paso

February 24, 2017


         Appeal from the County Court of Presidio County, Texas (TC# 5810)

          Before McClure, C.J., Rodriguez, and Hughes, JJ.


          ANN CRAWFORD McCLURE, Chief Justice.

         Appellant 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."

         In two 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.


         Rosa 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 the registration.

         Morales 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.

         When 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.

         Morales 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.

         Ranger 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 plausible.

         Vajdos 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.[00]. It was from the office of Rosa Morales.

         Trevino 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 money."

         Appellant 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 missing money.

         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.

         Appellant 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."

         Appellant 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.


         We 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.

         When 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 (Tex.Crim.App. 2004).

         Due 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.

         When an 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.

         An "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 Supp. 2016).

         A person commits theft if she "unlawfully appropriates property with intent to deprive the owner of property."[1] 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 ...

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