Appeal from the County Court at Law No. 1 Fort Bend County,
Texas Trial Court Cause No. 14-CCR-173702
consists of Chief Justice Frost and Justices Busby and Wise.
Thompson Frost Chief Justice
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.
and Procedural Background
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.
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.
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.
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
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.
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
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.
Sufficiency of the ...