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McCurdy v. State

Court of Appeals of Texas, Fourteenth District

May 8, 2018


          On Appeal from the County Court at Law No. 1 Fort Bend County, Texas Trial Court Cause No. 14-CCR-173702

          Panel consists of Chief Justice Frost and Justices Busby and Wise.


          Kem Thompson Frost Chief Justice

         In this opinion we address the sufficiency of the evidence to support appellant Treveia Shawna McCurdy's theft conviction as well as an alleged variance between the information charging the offense and the record evidence. We also consider appellant's ineffective-assistance-of-counsel claim based on her trial lawyer's failure to object to evidence. Finding no error, we affirm.

         Factual and Procedural Background

         Appellant entered a chain store that sold home goods. Using cash, appellant purchased a handbag for $179.99 and two rugs, each priced at $399.99. Appellant's total purchase amounted to $1, 060.82. Appellant left the store with the handbag, but left the two rugs sitting towards the front of the store. About ten minutes later, appellant came back to the store and returned the purse and the two rugs she had just purchased. Appellant received a cash refund of $1, 060.82 for the items. Appellant's receipt for the items and refund receipt listed each item and its price, along with each item's department number and unique "skew line" or "uline number, " which identifies each item in the store. The chain store's practice was not to mark through return items on the receipt.

         A few hours later, appellant entered a different location of the chain store, carrying two rugs. Appellant showed the cashier the same receipt from earlier in the day and asked the cashier for a refund on the two rugs. The cashier called the manager to approve the refund. The manager compared the department number, uline number, and price of the rugs, as shown by the receipt, with the department number, uline number, and price of the rugs appellant brought into the store. Because the numbers handwritten on the rug matched the numbers on the receipt, the manager approved the refund and paid appellant $865.98 in cash for the return of the two rugs. The store later realized that the store did not carry those rugs as merchandise.

         While reviewing weekly reports of purchases, Daniel Cano, a loss-prevention officer for the chain store's parent company noticed that the company's records indicated the same rugs had been returned to the second location after they already had been returned to the first location. Cano explained that there is a lag in the chain store's computer system; returns do not appear on the system until twenty-four hours, so a cashier would not see that an item previously had been returned if the item was returned again within a twenty-four hour period after the returns were reported. Cano was able to see that the same rugs appeared to have been returned twice. Cano began investigating the transactions by pulling the electronic record for the returns and matching it with video surveillance. Appellant was arrested and charged with theft.

         The information alleged appellant "intentionally and knowingly unlawfully appropriated property, to wit: United States currency, of the value of $500 or more but less than $1, 500, from Daniel Cano, the owner thereof, without effective consent of the owner and with the intent to deprive the owner of the property." Appellant pleaded, "not guilty."

         In the jury trial that followed, Cano testified that surveillance video showed that appellant was the person who purported to return the same rugs twice. The store manager in the second location identified appellant as the individual who made the return. The manager testified that the returned rugs contained the handwritten uline number and department number that matched the numbers on the receipt, but that the rugs were not the store's property. Cano testified that an individual could take a marker and handwrite the uline number on the rug as long as the individual had a receipt listing the uline number. The manager testified that the rugs appellant presented for return at the second location were thin and low quality compared with the rugs the store sold in the price range of the rugs indicated by the uline number. Cano testified that in his opinion, the return could not have been a mistake because the rugs appellant returned contained the incorrect uline numbers.

         Appellant gave a different account. She testified that she is an interior decorator and that she regularly purchases rugs for clients and then returns the rugs if the client does not want to use the rug. Appellant testified that on the date in question, she purchased the rugs from the store for a client and then learned that the client was not coming to the store so appellant returned the rugs as well as the purse. Appellant testified that later that day she was returning different rugs to the store near another client's home and mistakenly provided the cashier with the wrong receipt. Appellant stated that if the cashier had told her she had the wrong receipt she would have looked for the correct receipt or done the return without a receipt. Appellant testified that her practice was to store receipts for clients in a mass file. She said that her clients had never asked her for a receipt for any purchase because as long as the purchase was within the client's budget, the client did not care to know the price. Appellant did not bring any receipts with her to trial. Appellant could not explain why the rugs contained a uline number that corresponded with the uline number for the rugs she had returned to a different location earlier in the day.

         The jury found appellant guilty as charged. The trial court assessed as punishment a $1000 fine and 365 days in jail, probated over eighteen months. Appellant now challenges her conviction, raising three issues on appeal.

         Issues and Analyses

         A. Sufficiency of the ...

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