Thomas Santellana Jr. v. State ( 2017 )

NUMBER 13-16-00394-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
THOMAS SANTELLANA JR., Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 207th District Court
of Comal County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Hinojosa
Memorandum Opinion by Justice Benavides
By two issues, appellant Thomas Santellana, Jr. challenges his convictions for
forgery and tampering with physical evidence. See TEX. PENAL CODE ANN. §§ 32.21
(forgery), 37.09 (tampering with physical evidence) (West, Westlaw through 2017 1st
C.S.). Santellana alleges the evidence was insufficient to support a conviction for forgery
(count five) and tampering with physical evidence (count seven). We affirm.
I. BACKGROUND1
The State charged Santellana by a seven-count indictment with: (1) one count of
possession of a controlled substance, penalty group 1, more than 1 gram but less than 4
grams, see TEX. HEALTH & SAFETY CODE § 481.115(c) (West, Westlaw through 2017 1st
C.S.); (2) four separate counts of forgery; (3) one count of theft of property, more than
$20,000 but less than $100,000, see TEX. PENAL CODE ANN. § 31.03 (West, Westlaw
through 2017 1st C.S.); and (4) one count of tampering with physical evidence, all third–
degree felonies.
The events surrounding Santellana’s convictions occurred in and around the New
Braunfels area in March 2014. New Braunfels police and the Comal County Sheriff’s
Office were both notified regarding counterfeit currency that was being used at local
businesses. Comal County Sheriff’s Office Investigator Richard Smith testified that he was
involved in the financial crimes unit and was a certified fraud investigator. Investigator
Smith was called out to Buc-ee’s gas station in March 2014 regarding an incident involving
what was believed to be counterfeit currency. Raven Perez, the cashier at Buc-ee’s,
testified that she made contact with Kristi Brandt, who attempted to pay using cash. Perez
testified that the money did not feel real, but when she stated she needed to call her team
leader, Brandt said “it was the wrong money” and took the money back and left. Perez
said Brandt entered a black BMW vehicle, driven by Santellana. Investigator Smith
reviewed the Buc-ee’s surveillance videos, identified the individuals Perez had contact
1 Pursuant to a docket-equalization order issued by the Supreme Court of Texas, this appeal was
transferred to this Court from the Third Court of Appeals in Austin. See TEX. GOV’T CODE ANN. § 73.001
(West, Westlaw through 2017 1st C.S.).
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with, identified the BMW Perez observed, and was able to run the BMW’s license plates.
Investigator Smith determined the license plates were registered instead to a Jeep.2
Around the same time, New Braunfels police were called out to a local Walgreens
regarding an attempt by a customer to use counterfeit currency. Terry Ferree, the night
manager at Walgreens, testified that Santellana and another man were in his store looking
at cellular phones. Santellana purchased a cellular phone, paid for it with seven twenty
dollar bills, and left. The other man with Santellana tipped Ferree off regarding the money
being counterfeit, and Ferree called the police. Ferree was able to identify the currency
used by Santellana because it was the last transaction on his cash register. When New
Braunfels police arrived and examined the money, they discovered two of the twenty dollar
bills used by Santelllana had the exact same serial number.
New Braunfels Police Detective Clint Penniman was assigned to the financial
crimes unit in 2014 and was contacted by the Comal County Sheriff’s Office regarding the
attempted transfer of counterfeit currency at Buc-ee’s. Detective Penniman testified that
he saw the Buc-ee’s video and attempted to locate the black BMW in the New Braunfels
area. Detective Penniman testified that he located the BMW at the Red Roof Inn hotel in
New Braunfels, but when he spoke to the manager, the vehicle was not registered to a
specific room. Detective Penniman said he then began surveillance of the vehicle.
Manish Patel was the general manager and owner of the Red Roof Inn and after
speaking to Detective Penniman, he began reviewing his computerized system for
currency. Patel stated that cash was the last transaction taken and consisted of two twenty
dollar bills and one ten dollar bill. Patel realized that the twenty dollar bills appeared to be
2 Officers determined the BMW had been stolen from its owner, Valerie Bryce. State Farm auto
adjuster Omar Castaneda testified regarding the theft claim and valued the vehicle at $18,919.73.
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counterfeit currency and called the police. Patel testified that Santellana and Brandt were
the only cash transactions at the hotel, and he turned over his video surveillance of the
front desk to police.
When other officers from the police department arrived, Detective Penniman stayed
with Patel to review the surveillance footage, while the three other police officers
approached Room 303, based on Patel’s identification of the room number. When
Santellana opened the door, he was asked to exit the room and was detained by the
officers. Detective Penniman testified that Santellana identified himself as Gerry
Santellana, which was later determined to be an alias. Detective Penniman testified that
Santellana consented to a search of the hotel room.
During the search, two hypodermic needles were found, one in the bathroom on
top of the toilet tank and one in a duffle bag, as well as a small envelope of a substance,
later determined to be methamphetamine, the keys to the BMW, and a men’s shirt similar
to the one seen in the Buc-ee’s video. Officers then requested consent to search the BMW
and Santellana agreed. The search of the BMW turned up another hypodermic needle
and a counterfeit twenty dollar bill in the passenger door pocket.
While officers were searching the vehicle, Santellana asked to use the restroom
and change clothes. Officer Sabreda observed Santellana moving a pile of clothes that
had been on the toilet tank. Later, officers determined that the hypodermic needle, which
had been seen on the top of the toilet tank, was missing.
Officer Sabedra was tasked with transporting Santellana to the New Braunfels
Police Department. He stated that as he tried to unlock his patrol car door, Santellana
jerked hard away from him, got loose, and took off running. Officer Sabedra testified he
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followed in pursuit, as well as Detective Groff and others. Santellana ran to a business
complex, was seen entering and exiting a truck cab, and jumped or fell into a drainage
ditch. Detective Groff was able to subdue Santellana in the drainage ditch and he was
recaptured. Detective Groff testified that after Santellana was back in custody, he noticed
a hypodermic needle in the alley near where Santellana was detained that was similar to
the other needles collected in Santellana’s hotel room.
Detective Penniman explained that he believed the currency collected from the Red
Roof Inn, Walgreens, and the BMW was counterfeit because the color was off, the texture
of the paper was too heavy, the watermarks were missing, and multiple bills had the exact
same serial numbers, which would never occur in real United States currency. Detective
Penniman also spoke to Brandt, Santellana’s co-defendant. He stated that Brandt
admitted to passing fake currency they had received from a man named “Austin”,
Santellana made her use the counterfeit currency, they both passed the currency knowing
it was fake, and additional counterfeit bills were found at places Brandt said they had been
to.
The jury found Santellana guilty on counts one, two, four, five, and seven. They
found Santellana guilty of a lesser included offense on count six 3 and not guilty on count
three. Santellana pleaded true to two enhancement paragraphs in the indictment for prior
felony offenses, which allowed punishment as a habitual offender, increasing the penalty
range for each felony offense to twenty-five years’ imprisonment to ninety-nine years or
life imprisonment. See TEX. PENAL CODE ANN. § 12.42(d) (West, Westlaw through 2017
3 The lesser included offense of theft is a state jail felony, which was enhanced by Santellana’s plea
of true to a second-degree felony. See TEX. PENAL CODE ANN. § 12.42, 31.03 (West, Westlaw through 2017
1st C.S.).
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1st C.S.). The trial court sentenced Santellana to fifty years’ imprisonment on counts one,
two, four, five and seven, and to twenty years’ imprisonment on count six in the Texas
Department of Criminal Justice–Institutional Division. This appeal followed.
II. EVIDENCE WAS LEGALLY SUFFICIENT
By his first and second issue, which we will address as one, Santellana alleges that
the evidence supporting count five and count seven of the indictment was not factually
sufficient.
A. Standard of Review
The “Jackson v. Virginia legal-sufficiency standard is the only standard that a
reviewing court should apply in determining whether the evidence is sufficient to support
each element of a criminal offense that the State is required to prove beyond a reasonable
doubt.” Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.); see
Jackson v. Virginia, 443 U.S. 307, 319 (1979). Brooks overruled the Clewis v. State
factually sufficiency analysis in 2010. See Brooks, 323 S.W.3d at 895. Therefore, we will
address Santellana’s factual sufficiency challenge under the legal sufficiency standard
used in Texas today. See id.When evaluating a sufficiency challenge, the reviewing court views the evidence in
the light most favorable to the verdict to determine whether a rational jury could find the
defendant guilty beyond a reasonable doubt. Brooks, 323 S.W.3d at 899; see Jackson,
443 U.S. at 319. In order to have reversal of a conviction on a claim of insufficiency of the
evidence, Santellana must show that no rational jury could have found all the elements of
the offense beyond a reasonable doubt. See Brooks, 323 S.W.3d at 902. The jury is the
sole judge of the credibility of the witnesses and the weight to be given to their testimony,
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and a reviewing court is not to substitute its judgment as to facts for that of the jury as
shown through its verdict. Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App.
2012). When the reviewing court is faced with a record supporting contradicting
inferences, the court must presume that the jury resolved any such conflict in favor of the
verdict, even if it is not explicitly stated in the record. Id.A reviewing court must measure the sufficiency of the evidence by 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) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex.
Crim. App. 1997) (en banc)). Such a charge is one that 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. Id.B. Applicable Law and Discussion
1. Count Five (Forgery)
A person commits an offense of forgery if he: (a) forges a writing with intent to
defraud or harm another, and (b) the writing is or purports to be part of an issue of money.
See TEX. PENAL CODE ANN. § 32.21(b), (e)(1). “Forge” means to: (A) to alter, make,
complete, execute, or authenticate any writing so that it purports (iii) to be a copy of an
original when no such original existed; (B) to issue, transfer, register the transfer of, pass,
publish, or otherwise utter a writing that is forged within the meaning of Paragraph (A); or
(C) to possess a writing that is forged within the meaning of Paragraph (A) with the intent
to utter it in a manner specified in Paragraph (B). Id.(a)(1)(A), (B), (C). “Writing” includes:
(B) money, coins, tokens, stamps, seals, credit cards, badges, and trademarks. Id.(a)(2).
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“Direct evidence and circumstantial evidence are equally probative, and
circumstantial evidence alone may be sufficient to uphold a conviction so long as the
cumulative force of all the incriminating circumstances is sufficient to support the
conviction.” Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015). “The trier of
the fact is the exclusive judge of the credibility and the weight of the evidence and is
permitted to draw any reasonable inference from the evidence so long as it is supported
by the record. Inferences based on mere speculation, however, are insufficient to support
a criminal conviction.” Id.Santellana alleges that there was insufficient evidence to tie him to the handling of
the counterfeit currency at the Red Roof Inn. He claims Patel was unsure of when exactly
the counterfeit currency was received and therefore, we should render an acquittal on
count five. However, circumstantial evidence can be considered when determining
sufficiency. See Ramsey, 473 S.W.3d at 809. Patel testified that the Red Roof Inn had a
computerized system that documented received cash at the hotel front desk. Patel also
stated that cash was used in the last transaction during the shift in question, there were
no other cash transactions during that shift, and based on the surveillance video provided
by Patel, Brandt and Santellana were the last persons who checked into the Red Roof Inn
during the shift in question. From the surveillance video, cash was used in the transaction
and it is clear that Brandt and Santellana are checking into the hotel together. Patel also
testified that when he recovered the cash from the “till”, the twenty dollar bills appeared to
be fraudulent, and he contacted police. Based on the facts presented to the jury, a rational
jury could have found all the elements of forgery beyond a reasonable doubt. See Brooks,
323 S.W.3d at 902. We overrule Santellana’s first issue.
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2. Count Seven (Tampering with Physical Evidence)
A person commits the offense of tampering with physical evidence if: (a) knowing
that an investigation or official proceeding is pending or in progress, he: (1) alters,
destroys, or conceals any thing (2) with the intent to impair its availability as evidence in
the investigation or official proceeding. TEX. PENAL CODE ANN. § 37.09(a)(1); see Williams
v. State, 270 S.W.3d 140, 142 (Tex. Crim. App. 2008). The court of criminal appeals has
also stated:
The three elements of section 37.09(a)(1) include ‘two different
culpable mental states’—knowledge and intent. The statute requires the
knowledge of an investigation and the intent to impair a thing’s availability as
evidence. As defined by the Texas Penal Code, a ‘person acts knowingly,
or with knowledge, with respect . . . to circumstances surrounding his
conduct when he is aware . . . that the circumstances exist.’ In contrast, a
‘person acts intentionally, or with intent, with respect . . . to a result of his
conduct when it is his conscious objective or desire to . . . cause the result.’
Id. at 142–43 (quoting Stewart v. State, 240 S.W.3d 872, 874 (Tex. Crim. App. 2007), and
TEX. PENAL CODE ANN. § 6.03(a), (b) (West, Westlaw through 2017 1st C.S.)).
“When contraband is not in the exclusive possession of the defendant, a fact finder
may nonetheless infer that the defendant intentionally or knowingly possessed the
contraband if there are sufficient independent facts and circumstances justifying such an
inference.” Tate v. State, 500 S.W.3d 410, 413–14 (Tex. Crim. App. 2016).
Here, multiple police officers testified that a hypodermic needle had been found on
the tank of the toilet in the restroom when they first searched Santellana’s hotel room.
Officer Sabedra testified that Santellana had asked to use the restroom and was allowed
to do so without being handcuffed. Officer Sabedra also testified that Santellana had
asked to change clothes, and was observed moving a pile of clothing in the restroom.
After Santellana was re-captured, Officer Groff noticed the hypodermic needle in the
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alleyway near the business complex, stated it looked like the other needles collected, and
the only needle he saw in the alleyway was within five to ten feet of where Santellana had
been. Other officers testified that they noticed later that the hypodermic needle was no
longer in the restroom where it had initially been seen.
Santellana was aware an investigation was ongoing and that officers had found
hypodermic needles and methamphetamine in his hotel room. It can be inferred that when
Santellana asked to change clothes and moved the pile of clothing in the restroom, that
he deliberately moved the hypodermic needle. Additionally, due to the fact a needle was
found within feet of where Santellana was running and finally arrested, it can be inferred
that it was his intent to cause the hypodermic needle to be unavailable as evidence in the
investigation. See id. Based on the facts presented to the jury, a rational jury could have
found all the elements that Santellana moved the hypodermic needle intending to impair
the investigation. See Brooks, 323 S.W.3d at 902. We overrule Santellana’s second
issue.
III. CONCLUSION
We affirm the judgment of the trial court.
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed the
16th day of November, 2017.
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