Gloria Sandone v. State ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00033-CR
Gloria Sandone § From County Criminal Court No. 5
§ of Denton County (CR-2010-05127-E)
v. § January 17, 2013
§ Opinion by Chief Justice Livingston
The State of Texas § (p)
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court’s judgment. It is ordered that the judgment of
the trial court is affirmed.
SECOND DISTRICT COURT OF APPEALS
By_________________________________
Chief Justice Terrie Livingston
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00033-CR
GLORIA SANDONE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 5 OF DENTON COUNTY
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OPINION
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In two issues, appellant Gloria Sandone appeals her Class B misdemeanor
conviction for theft of property valued at $50 or more but less than $500.1 We
affirm.
1
See Tex. Penal Code Ann. § 31.03(a), (e)(2)(A)(i) (West Supp. 2012).
2
Background Facts2
One afternoon in June 2010, Eric Butler, who is a loss prevention
supervisor for J.C. Penney, was working in a Lewisville store when he saw
appellant in the men’s clothing area. Appellant had several pairs of pants draped
across her arm, and according to Butler, she ―selected a tie very quickly without
looking at the price.‖ Appellant then selected three more ties, looked around,
and concealed the four ties in a bag that already contained clothing. Butler
watched appellant walk to a cash register and make two piles of clothing. One
pile contained the clothing from the bag (four pairs of pants and the four ties that
Butler saw appellant take), and the other pile contained the clothing that
appellant had draped on her arm. At the register, appellant exchanged the
clothes from the bag (as if she had already purchased them) for the clothes that
she had draped on her arm. Butler eventually saw appellant leave the store,
identified himself as a loss prevention officer, asked her to reenter the store, and
told her about what he had seen. When appellant denied Butler’s allegation that
she had committed theft, Butler called the police.
Lewisville Police Department Officer Chang Chi arrived at the store’s loss
prevention office and asked appellant what had happened. Appellant said that
she had previously bought some dress clothes for her son and that she had
2
At trial, the State and appellant presented different versions of the facts.
We will first recite the evidence elicited from the State’s witnesses, and we will
summarize appellant’s testimony later in the opinion.
3
taken those clothes into the store to exchange them for other clothes. Officer Chi
looked at the pants that appellant claimed to have brought in the store, and he
noticed that they were different sizes. For example, one pair of the pants had a
thirty-eight-inch waist, while another pair had a thirty-two-inch waist. Officer Chi
believed that the pants’ size discrepancies were inconsistent with appellant’s
claim to have bought them for her son. Appellant told Officer Chi that the receipt
for the pants was with her son in Houston. She also asked Officer Chi if he could
give her a ticket instead of taking her to jail. After completing his investigation,
Officer Chi arrested appellant for stealing the ties.3
The State charged appellant with theft. The charging instrument alleged
that she had unlawfully appropriated ―neckties, of the value of $50 or more but
less than $500 from Eric Butler, the owner thereof, with intent to deprive the
owner of the property.‖ Appellant pled not guilty. At trial, she testified that she
had bought four pairs of pants and four ties for her son from a woman at a motel,
that she took those clothes into the store, and that she told someone that she
wanted to exchange them before she did so. Appellant denied taking ties and
concealing them in her bag. She testified that she had falsely told Officer Chi
that her son had a receipt because it was ―easier at the time than saying . . . that
[she] bought them from somebody in the motel.‖
3
Officer Chi testified that he did not have enough evidence to arrest
appellant for theft of the pants that were in the bag.
4
After listening to the evidence and the parties’ arguments, the jury
convicted appellant. In accordance with an agreement between the parties, the
trial court assessed her punishment at 160 days’ confinement but suspended the
imposition of that sentence and placed her on community supervision. Appellant
brought this appeal.
Butler’s Testimony Concerning Value
In her first issue, appellant argues that the trial court erred by allowing
Butler to testify about the value of the ties because Butler was not qualified to do
so and because his testimony was based on hearsay. When a prosecutor asked
Butler about the value of the ties that Butler saw appellant take, appellant
objected on the basis that Butler was not qualified to render an opinion on value.
Appellant’s counsel contended, ―[W]hile [Butler] may constitute a special owner
for purposes of care, custody, control and permission, he is not an owner such
that [he] can testify to value.‖ The State contended that Butler had knowledge of
the value of the ties because he had looked at their price tags, but appellant
argued that the price tags were hearsay. The State then argued that as the
owner of the ties and as a result of his position at the store, Butler could testify
about their value. The trial court overruled appellant’s objection to Butler’s
testimony about value, and Butler testified that each of the four ties was valued at
$30. Also, over appellant’s hearsay objection, the trial court admitted State’s
Exhibit One, which stated that the four ties were collectively valued at $120.
5
We review a trial court’s decision to admit evidence under an abuse of
discretion standard. Lozano v. State, 359 S.W.3d 790, 817 (Tex. App.—Fort
Worth 2012, pet. ref’d). The trial court does not abuse its discretion by admitting
evidence unless its determination lies outside the zone of reasonable
disagreement. Id.; see also Davila v. State, 547 S.W.2d 606, 610 (Tex. Crim.
App. 1977) (applying the abuse of discretion standard to a trial court’s admission
of a witness’s testimony about the value of a truck).
To obtain appellant’s conviction for Class B misdemeanor theft, the State
was required to prove that she unlawfully appropriated property that was valued
at $50 or more but less than $500 with the intent to deprive the owner of the
property. Tex. Penal Code Ann. § 31.03(a), (e)(2)(A)(i). The owner of property is
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.‖ Id.
§ 1.07(a)(35)(A) (West Supp. 2012). Value, for the purpose of classifying a theft
offense, is generally the fair market value of the property at the time and place of
the offense. Id. § 31.08(a)(1) (West 2011).
Fair market value may be proved by, among other means, testimony of the
owner’s opinion of the value of the property. Keeton v. State, 803 S.W.2d 304,
305 (Tex. Crim. App. 1991). In Sullivan v. State, the court of criminal appeals
distinguished the requirements for admissibility of testimony concerning value
from a non-owner of property as opposed to an owner, stating in part,
6
It has long been the rule in this State that the owner of
property is competent to testify as to the value of his own property.
This rule applies both in criminal theft cases and in cases which
involve only civil issues.
....
It is settled that when the State seeks to establish the value of
an item of property through the testimony of a non-owner the witness
must first be qualified as having personal knowledge of the value of
the property. Furthermore, to establish sufficient evidence of value
the State must elicit testimony as to the fair market value of the
property in question.
We have held, however, that while fair market value must be
established if the testimony concerning value is given by someone
other than the owner, the owner is competent to testify as to value
though he is not qualified as an expert on the value of the
property. . . .
....
Thus, there seems to be two corollaries to the rule regarding
proof of value. When the proof of value is given by a non-owner, the
non-owner must be qualified as to his knowledge of the value of the
property and must give testimony explicitly as to the fair market
value or replacement value of the property.
However, when the owner of the property is testifying as to the
value of the property, he or she may testify as to his or her opinion or
estimate of the value of the property in general and commonly
understood terms. Testimony of this nature is an offer of the
witness’ best knowledge of the value of his property.
701 S.W.2d 905, 908–09 (Tex. Crim. App. 1986) (emphasis added) (citations
omitted); see Holz v. State, 320 S.W.3d 344, 350 (Tex. Crim. App. 2010)
(―Sullivan affirmed that fair market value should be used to establish the value of
property stolen in theft cases, and held that an owner’s testimony was sufficient
to prove fair market value.‖). Various courts of appeals have applied the
7
rationale expressed in Sullivan to hold that the State is not required to prove that
an owner of property is qualified based on knowledge of the value of the property
before the owner may give testimony about value. See Fernandez v. State, No.
08-10-00153-CR, 2011 WL 1849541, at *2 (Tex. App.—El Paso May 11, 2011,
no pet.) (not designated for publication); Morales v. State, 2 S.W.3d 487, 488
(Tex. App.—Texarkana 1999, pet. ref’d); Jones v. State, 814 S.W.2d 801, 803
(Tex. App.—Houston [14th Dist.] 1991, no pet.) (―It has long been the rule in this
State that the owner of property is competent to testify as to the value of his own
property.‖).
Based on this authority, we must conclude that the trial court did not abuse
its discretion by overruling appellant’s first objection that Butler was not properly
qualified to testify as an expert on value. Concerning his position at J.C. Penney,
Butler testified, ―I’m in charge of all of the safety in the store. All the
apprehensions, all the internal investigations. . . . I’m in charge of my staff. . . .
So I have to make sure all the apprehensions are up to par.‖ As J.C. Penney’s
loss prevention supervisor, Butler had a greater right to possession of the ties
than appellant, and that made him the ties’ owner, just as the State pled in its
charging instrument. See Tex. Penal Code Ann. § 1.07(a)(35)(A); Castle v.
State, 718 S.W.2d 86, 88 (Tex. App.—Fort Worth 1986, no pet.) (―[E]vidence that
Bunche was an employee of J.C. Penney is sufficient to show a greater right of
possession in her than in appellant and to establish her as special owner of the
property.‖). Because Butler was the owner of the ties, he could offer an opinion
8
on their value without the State’s presentation of evidence that he was qualified
on the basis of knowledge as an expert. See Holz, 320 S.W.3d at 350; Sullivan,
701 S.W.2d at 908–09.
Appellant argues that Butler was not competent to testify about value
because he was not the ―true owner‖ of the ties but instead was only the ―special
owner‖ of them. A ―special owner‖ is someone, like Butler, who has custody or
control of property belonging to another person. Garza v. State, 344 S.W.3d
409, 412–13 (Tex. Crim. App. 2011) (explaining that penal code section
1.07(a)(35)(A)’s definition of ―owner‖ eliminates distinctions between general and
special owners); Byrd v. State, 336 S.W.3d 242, 252 (Tex. Crim. App. 2011).
Contrary to appellant’s argument, we have found several cases in which courts
held that special owners of property are competent to testify to value under the
standard applied to owners in Sullivan. See Garza, 344 S.W.3d at 414 (―As a
proper special owner, [an employee of a business] was competent to attest to the
value of the stolen property . . . .‖); Proctor v. State, No. 14-96-00895-CR, 1998
WL 470355, at *1 (Tex. App.—Houston [14th Dist.] Aug. 13, 1998, no pet.) (not
designated for publication) (holding that a motorcycle owner’s brother, who had
care, custody, and control of the motorcycle, was competent under Sullivan to
testify about the value of the motorcycle); Dodson v. State, No. 04-96-00427-CR,
1997 WL 136500, at *3–4 (Tex. App.—San Antonio Mar. 26, 1997, no pet.) (not
designated for publication) (concluding that the manager of a Wal-Mart store
qualified as an owner of the property at issue and that the manager’s testimony
9
was therefore admissible under Sullivan to establish value); Jones v. State, 814
S.W.2d 801, 803–04 (Tex. App.—Houston [14th Dist.] 1991, no pet.) (holding
that a project manager at a construction site was competent under Sullivan to
testify about the value of mullions that had been stolen from the site because the
project manager qualified as an owner of the mullions). Appellant has not
directed us to any cases in which a court held that a special owner was not
qualified to testify about the value of property under the standard for owners
expressed in Sullivan, and we have found none.
Appellant also argues that ―any information [Butler] possessed [about
value] would have necessarily been based on unreliable hearsay.‖ In a brief
hearing outside of the presence of the jury about the admissibility of Butler’s
testimony, the State represented that Butler had ―inspected the items that were
taken‖ and had ―looked at the price tags.‖ Appellant objected on the basis that
the price tags were hearsay. We cannot conclude that the trial court abused its
discretion by overruling this objection because Texas courts, including the court
of criminal appeals, have consistently held that hearsay evidence is admissible
when proving value in a theft case. See, e.g., Gonzales v. State, 478 S.W.2d
522, 524 (Tex. Crim. App. 1972) (―This court has consistently held that hearsay
evidence is admissible as proof of market value.‖); Ortiz v. State, 727 S.W.2d 37,
40 (Tex. App.—San Antonio 1987, pet. ref’d) (―[T]he case before us involves
hearsay testimony of price tags which was admissible to prove value.‖).
10
For all of these reasons, we hold that the trial court did not abuse its
discretion by admitting Butler’s testimony about the value of the ties, and we
overrule appellant’s first issue.
Officer Chi’s Testimony Concerning His Conversation with Appellant
In her second issue, appellant argues that the trial court erred by allowing
Officer Chi to testify about his conversation with appellant on the date of her
arrest because the evidence did not establish that appellant received Miranda4
warnings or that Officer Chi followed article 38.22 of the code of criminal
procedure while questioning appellant.5 During the trial, the State questioned
Officer Chi about whether he had asked appellant any questions upon meeting
her in J.C. Penney’s loss prevention office. Appellant objected on the grounds
that Officer Chi had not first issued appellant Miranda warnings and that
appellant’s verbal statements were not recorded. The State argued that Miranda
warnings and the recording of appellant’s statements were not required because
appellant had not been subjected to a custodial interrogation. Outside of the
jury’s presence, Officer Chi testified that appellant was not arrested during the
4
See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 1630
(1966).
5
See Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a) (West 2005) (setting
forth requirements for the admissibility of a defendant’s oral statement that is
made during a custodial interrogation, including that the statement must be
electronically recorded).
11
questioning but that she was not free to leave. The trial court overruled
appellant’s objection.
After the trial court overruled the objection, Officer Chi testified that on the
date of appellant’s arrest, she had told him that she had previously purchased
dress clothes for her son, who had recently graduated from law school in
Houston, and that her son had the receipt for the clothes. Officer Chi also
testified that appellant had asked him if he could ―just write her a ticket and let
her go.‖ But before Officer Chi testified and before appellant objected, all of
these statements from appellant had already been introduced into evidence,
without objection, through Butler’s testimony.
The improper admission of evidence is harmless if the same or similar
evidence is admitted without objection at another point in the trial. Estrada v.
State, 313 S.W.3d 274, 302 n.29 (Tex. Crim. App. 2010), cert. denied, 131 S. Ct.
905 (2011); Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003) (―An
error in the admission of evidence is cured where the same evidence comes in
elsewhere without objection.‖); Hill v. State, 303 S.W.3d 863, 876 (Tex. App.—
Fort Worth 2009, pet. ref’d). Thus, even if we were to conclude that appellant
was subjected to custodial interrogation from Officer Chi, that he should have
given her Miranda warnings, and that he failed to comply with article 38.22 of the
code of criminal procedure, we would be compelled to determine beyond a
reasonable doubt that appellant was not harmed by the admission of Officer
Chi’s testimony about appellant’s statements because Butler testified to the same
12
facts without objection. See Tex. R. App. P. 44.2(a); Hill, 303 S.W.3d at 876; see
also Campbell v. State, 325 S.W.3d 223, 238–39 (Tex. App.—Fort Worth 2010,
no pet.) (applying the constitutional error harm standard of rule 44.2(a) to decide
that there was no harm from a violation of a defendant’s right to receive Miranda
warnings and declining to conduct a separate analysis of harm, relating to a
violation of article 38.22, under rule 44.2(b)’s nonconstitutional error standard).
We overrule appellant’s second issue.
Conclusion
Having overruled both of appellant’s issues, we affirm the trial court’s
judgment.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
PUBLISH
DELIVERED: January 17, 2013
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