Brandi Lee Jamison v. State ( 2005 )

Opinion issued June 2, 2005  

  In The  

Court of Appeals

For The  

First District of Texas

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  NO. 01-04-00600-CR

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BRANDI LEE JAMISON, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from County Court at Law No. 1

Brazoria County, Texas

Trial Court Cause No. 129309

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  MEMORANDUM OPINION

          Appellant, Brandi Lee Jamison, was charged by information with theft of merchandise valued at more than $50 and less than $500, a class B misdemeanor. A jury found appellant guilty as charged, and the trial court assessed punishment at a fine of $200 and confinement for 10 days. However, in lieu of confinement, the trial court placed appellant on community supervision for 12 months. On appeal, appellant challenges (1) the factual sufficiency of the evidence and (2) the trial court’s denial of appellant’s proposed in-court demonstration. We affirm.

Facts

          Appellant was observed at a Wal-Mart store carrying her baby daughter and placing items from the shelves into a baby stroller. Loss prevention associate Christopher Mitchell testified that he saw appellant pick up several DVDs, walk over to the shoe department, and then place the DVDs into the stroller. He testified that he followed her through the store and saw her put a variety of other items in the stroller. As the stroller began to get quite full, he stopped following her because he did not think anyone would put so much merchandise into a stroller and try to walk out without paying for it. He saw her go to the photo lab and conduct a transaction, go to a checkout line where she joined two friends (an adult woman and a child), and then get out of the line and go toward the front exit with the stroller. As she went through the first set of doors, she passed the electronic security device and the alarm sounded. Mitchell saw the door greeter stop appellant, and Mitchell approached her and asked if she had a receipt for the merchandise in the stroller. Appellant said that her sister had the receipt. Mitchell testified that he “allowed” appellant the chance to ask her sister for the receipt and learned that appellant’s sister did not have one. He then took appellant to the back of the store and called the police.

          Another Wal-Mart employee, Kelly Gilstrap, testified that he saw appellant carrying her baby and putting items into the baby stroller. He called Mitchell on his two-way radio to report appellant’s activity, and Mitchell said he was watching appellant. Sometime later, Mitchell called Gilstrap and asked him to come to the front of the store to assist in stopping appellant from leaving with the merchandise. Gilstrap saw Mitchell and the greeter stop appellant after the security alarm went off and heard appellant say that her sister had the receipt. Gilstrap testified that Mitchell escorted appellant to find her sister, who said that she did not have a receipt for the merchandise. Gilstrap went to the back of the store with Mitchell and appellant and helped Mitchell inventory the items in the stroller. The stroller contained approximately $170 worth of groceries, toys, DVDs, and other merchandise.

          Carol Ann Cisneros, a friend who was shopping with appellant, testified that, while she and appellant were in the store, appellant told her that she had to go to her car because she had brought the wrong bank card into the store. Cisneros said that she was at the ATM machine near the front of the store and that appellant left with the baby and the stroller. She testified that after the security alarm went off, she and appellant went back to the checkout line.

          Peyton Hanak, Cisneros’s cousin who was 11 years old at the time of trial, was with appellant and Cisneros on the day in question. Hanak testified that she was in the checkout line when appellant came up to her and said she had to go to her car to get her other bank card. Hanak said that she did not hear the security alarm, but that appellant returned to the checkout line and then a man came up and said that appellant had to go to the back room with him.

          Appellant testified that she went to Wal-Mart with her baby, Cisneros, and Hanak. She testified that Cisneros pushed a shopping cart through the store and she pushed her baby stroller. She testified that sometimes they were together and sometimes they went separate ways. She put some items in the shopping cart when she was with Cisneros, and she put things in the stroller when she was alone and sometimes when with Cisneros. She said that she dropped some film off at the photo lab when she first arrived, and later, when she went to pick up the photos, she realized that she had the wrong bank card and needed to go to her car to get the other one. She found Hanak in the checkout line, and Hanak told her that Cisneros was at the ATM machine. She told Hanak that she had to go to her car to get her other bank card. She testified that the baby was crying, and that she forgot about the items in the stroller. As she got near the doors, the alarm went off. She testified that no store personnel approached her at the door to ask for a receipt. She went back to the checkout line to join Cisneros and Hanak. She was going to ask Cisneros to hold the baby while she went to her car to get the other bank card when a man tapped her on the shoulder and told her to come with him to the back of the store.

Factual Insufficiency

          In her first issue, appellant contends that the evidence was factually insufficient to support her conviction because the evidence at trial was insufficient to prove, beyond a reasonable doubt, that she had the intent to deprive Wal-Mart of its property. Appellant argues that her act of pushing the stroller containing the merchandise past the security point does not, by itself, “strongly indicate a larcenous intent.” Appellant also argues that inconsistencies in the testimony make her claim of innocence more credible.

          When reviewing the factual sufficiency of the evidence, we must view all the evidence in a neutral light and may set aside the verdict only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004). The jury is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to the witnesses’ testimony. Jaggers v. State, 125 S.W.3d 661, 672 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). The jury may believe all, some, or none of any witness’s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). This standard of review applies to both direct and circumstantial evidence cases. King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000).

          A person commits a theft if she “unlawfully appropriates property with intent to deprive the owner of property.” Tex. Pen. Code Ann. § 31.03(a) (Vernon Supp. 2004-2005); Parks v. State, 960 S.W.2d 234, 236 (Tex. App.—Houston [1st Dist.] 1997, pet. ref'd). Intent can be inferred from acts, words, and conduct of the accused, as well as the surrounding facts and circumstances. Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991); LaPoint v. State, 750 S.W.2d 180, 182 (Tex. Crim. App. 1986); Claxton v. State, 124 S.W.3d 761, 766 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).

          Appellant argues that inconsistencies in the testimony of the State’s witnesses and the defense witnesses lend credibility to her claim of innocence. Appellant and other defense witnesses testified (1) that there were about 10 to 15 items in the stroller (although appellant later testified that there were 50 or 60 items); (2) that appellant was in the check-out line when Mitchell approached her and took her to the rear of the store; (3) that appellant was never asked for a receipt; and (4) that no one approached her at the door when the alarm went off.

          The State’s witnesses testified (1) that the stroller was loaded with merchandise; (2) that Mitchell apprehended appellant at the door or possibly in the parking lot after the alarm went off; (3) that Mitchell asked appellant if she had a receipt, and she replied that her sister had it; and (4) that a greeter stopped appellant at the door when the alarm went off, and Mitchell approached appellant almost immediately to ask about the receipt. Photographs of the items and an inventory listing 66 items were admitted as evidence to support the State’s case.

          The inconsistencies in the testimony of these witnesses did not necessarily weigh in favor of appellant; rather they created a fact issue for the jury to determine. See Sharp, 707 S.W.2d at 614 (stating that jury “could choose to believe or not believe the witnesses, or any portion of their testimony”).

          Appellant further contends that the preponderance of the evidence supports her claim that she made a “scatter-brained” mistake and had no intent to deprive Wal-Mart of its property. She implies that it is illogical that she would shoplift from a store she frequented, points out that four witnesses attested to her honesty, and argues that her explanation of the two bank cards was “entirely plausible.” However, like the inconsistencies in the witnesses’ testimony, these were factors to be weighed by the jury. Id.

          The facts of this case do not meet the Escamilla test for setting aside the jury’s verdict. We overrule appellant’s first issue.

In-Court Demonstration

          In her second issue, appellant contends that the trial court erred in prohibiting an in-court demonstration of how appellant’s baby stroller would have appeared if loaded with the merchandise listed on the inventory. Appellant argues that she was denied the opportunity to impeach the State’s witnesses and to cause the State’s case to collapse.

          We review a trial court’s ruling to permit or deny a demonstration for abuse of discretion. Cantu v. State, 738 S.W.2d 249, 255 (Tex. Crim. App. 1987). To be admissible, a demonstration must be conducted under conditions that are similar to the event to be duplicated. Id. Appellate review is limited to whether the trial court abused its discretion. Lewis v. State, 933 S.W.2d 172, 176 (Tex. App.—Corpus Christi 1996, pet. ref’d). However, when the "facts presented affirmatively show that the proposed experiment was conducted under substantially similar circumstances and conditions, the court abuses its discretion in excluding the evidence.” Ginther v. State, 672 S.W.2d 475, 477 (Tex. Crim. App. 1984). 

          Appellant requested, out of the presence of the jury, to demonstrate how the stroller would look if filled with all the items on the inventory. The following discussion then took place:

THE COURT:I’m going to allow it, provided that, to the tenth degree, what she brought matches exactly what’s on that list and then [State’s counsel] will be allowed to argue that . . . the only testimony that that is the exact stroller is Mrs. Jamison’s, but if there is one item that doesn’t exactly match, by brand, by weight, by description, no items will go in the stroller - -

. . . .

APPELLANT’S COUNSEL:Well, I can tell you, as an admission, that a couple of the items aren’t going to be the same brand because Mrs. Jamison isn’t allowed to go to Wal-Mart any more because of the result of the criminal trespass law and so she had to go and purchase a few items that were purely Wal-Mart brands.

STATE’S COUNSEL:Then I’m going to object.

THE COURT:Then . . . it is not going to happen unless it is the exact same because, from brand to brand, there are various differences in the shape of the container that they are in, the size of the container, and without it being exactly matching on this list, it’s not going to happen. So, by your admission that it is not going to be same, I’m not going to go through and double check . . . .

                    . . . .

THE COURT:I’m not going to allow it. My ruling is I’m not going to allow it, by their own admission that the items in question are not items that have been brought here in court today.

           Appellant made no effort to show the number or type of items that were not identical to those on the inventory or to show that the substituted items were substantially similar to those on the inventory. Therefore, appellant did not affirmatively show that the proposed demonstration would be substantially similar to the events at the time of appellant’s arrest. See Ginther, 672 S.W.2d at 477. Under these circumstances, we cannot say that the trial court abused its discretion in denying the proposed demonstration.

          We overrule appellant’s second issue.

Conclusion

          We affirm the judgment of the trial court.

                                                                        Sam Nuchia

                                                                        Justice

Panel consists of Justices Nuchia, Keyes, and Bland.

Do not publish. Tex. R. App. P. 47.2(b).