IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS DALLAS, TEXAS

Transcription

1 IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS DALLAS, TEXAS MARISOL ZUNIGA MURILLO, Appellant NO CR VS. THE STATE OF TEXAS, Appellee ON APPEAL FROM THE COUNTY COURT AT LAW NUMBER ONE OF COLLIN COUNTY, TEXAS NO ****** APPELLANT S BRIEF ****** KEVIN B. ROSS, P.C. Bar Card Number SORRELS, UDASHEN & ANTON 2311 CEDAR SPRINGS ROAD SUITE 250 DALLAS, TEXAS (214) Office (214) Fax ATTORNEY FOR APPELLANT, MARISOL ZUNIGA MURILLO

2 PARTIES TO THE CAUSE State of Texas represented at trial by John Roach, Collin County District Attorney, and Mr. Jeremy Wood, Assistant District Attorney, 1800 N. Graves Street, Suite 200, McKinney, Texas For the State on Appeal, Greg Willis, Collin County District Attorney and Mr. John R. Rolater, Jr., 2100 Bloomdale Rd, Ste , McKinney, Texas Appellant represented in trial court and on appeal by Kevin B. Ross of Sorrels, Udashen & Anton, 2311 Cedar Springs Road, Suite 250, Dallas, Texas i

3 TABLE OF CONTENTS Page PARTIES TO THE CAUSE... i TABLE OF CONTENTS... ii INDEX OF AUTHORITIES... iii-iv STATEMENT OF THE CASE ISSUES PRESENTED...3 STATEMENT OF FACTS SUMMARY OF THE ARGUMENT...4 ISSUES RESTATED WITH ARGUMENT AND AUTHORITIES ISSUE I Whether the evidence is legally sufficient to support a guilty verdict because the State failed to prove beyond a reasonable doubt that Bobby Perez was the owner of the property as charged in the information? CONCLUSION...11 CERTIFICATE OF SERVICE...12 ii

4 INDEX OF AUTHORITIES Cases Page Dingler v. State, 705 S.W.2d 144 (Tex. Crim. App. 1984)...4, 5 Freeman v. State, 707 S.W.2d 597 (Tex. Crim. App. 1986)...4, 5, 6 Johnson v. State, 606 S.W.2d 894 (Tex. Crim. App. 1980)...4, 5 King v. State, 29 S.W.3d 556 (Tex. Crim. App. 2000)...4 Penagraph v. State, 623 S.W.2d 341 (Tex. Crim. App. 1981)...4 Codes and Rules TEX. PEN. CODE sec. 1.07(35)...5 TEX. PEN. CODE sec. 1.07(39)...5 TEX. PEN. CODE 31.03(a)&(e)(2)...4 iii

5 IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS DALLAS, TEXAS MARISOL ZUNIGA MURILLO, Appellant NO CR VS. THE STATE OF TEXAS, Appellee ON APPEAL FROM THE COUNTY COURT AT LAW NUMBER ONE OF COLLIN COUNTY, TEXAS NO ***************************** APPELLANT S BRIEF ***************************** STATEMENT OF THE CASE On March 20, 2008, an Information was filed against Marisol Zuniga Murillo (hereafter Ms. Murillo ) alleging that on or about February 28 th, 2008, she committed the offense of Theft > $50.00 or more but < $ (CR:5). On August 8, 2008, Ms. Murillo pleaded guilty to and was convicted of the offense of Issuance of a Bad Check. (CR:38-40). On February 23, 2010, Mr. Murillo filed an Application for Writ of Habeas Corpus to set aside her conviction. (CR:45). On April 16, 2010, Ms. Murillo s Application for Writ of Habeas Corpus was granted and the case remanded for a new trial. (CR:54). On June 14, 2010, Ms. Murillo proceeded to trial by jury. Ms. Murillo was found guilty by the jury of the class B misdemeanor of theft. (CR:76). The Court assessed punishment at 60 Appellant s Brief - Page 1

6 days in the county jail, a $ fine, and ordered that confinement be suspended and Ms. Murillo be placed on community supervision for 12 months. (CR: ). On June 14, 2010, the court certified Ms. Murillo s right of appeal. (CR:104). On July 14, 2010, Ms. Murillo filed her notice of appeal from the judgment of conviction and sentence. (CR:105). This appeal is now properly before the court. ISSUES PRESENTED Whether the evidence is legally sufficient to support a guilty verdict because the State failed to prove beyond a reasonable doubt that Bobby Perez was the owner of the property as charged in the information? STATEMENT OF FACTS On February 28, 2008, Bobby Perez ( Perez ) was working as the loss prevention manager at Nordstrom s. (RR 69, 72). That day, his duties were to open the store, filing paperwork and being in the camera room to observe the surveillance cameras in the store. (RR 72). Two other agents, Janel Oasay ( Oasay ) and Alex Ramos ( Ramos ) were also working that day. (RR 72). Perez had the camera directed at the accessories department and saw Marisol Murillo ( Murillo ) enter that area. (RR 73). About a week earlier, Perez had seen Murillo in the store and had suspected her of shoplifting a pair of shoes, but he was unable to detain her because he did not see the element of concealment and was unable to maintain constant surveillance of Murillo. (RR 74-79). When Perez saw Murillo on February 28 th, he contacted Oasay and Ramos to keep surveillance on her from the store floor area while he continued to watch her on the camera. (RR 80). Perez stated that the surveillance of Murillo began around 2:30 p.m. and lasted until the police officer arrived around 4:30 p.m. or 5:00 p.m. (RR 81). Perez testified that Murillo exhibited unusual shopping behavior (RR 81), but later testified that Murillo s shopping behavior Appellant s Brief - Page 2

7 was normal and the only reason he was watching her was because of what he saw on February 18 th when Murillo had been in the store. (RR ). Perez testified that he did not see Murillo conceal the shoes or pants in her purse, but only saw the motions of concealment. (RR 115). After Murillo proceeded to checkout, she was intercepted by loss prevention agents Ramos and Oasay and she was escorted to the back of the store. (RR 93). While being detained in the loss prevention office, Murillo s purse was searched and a pair of shoes and pants were recovered which were not paid for. (RR 94). Perez testified that Murillo signed a statement admitting that she stole the pair of shoes and pants. (RR 100). The Plano Police Department was called and Murillo was placed under arrest for misdemeanor theft. (RR ). SUMMARY OF THE ARGUMENT The State failed to prove that Bobby Perez was the owner or special owner of the property as alleged in the information. Bobby Perez was the loss prevention manager of Nordstrom s on February 28, His duties that day were to open the doors to the store, file paperwork and monitor the security surveillance cameras. There was no testimony that he was a special owner of the property, had possession of the property, or that he had a greater right to possess the property allegedly stolen. Moreover, merely establishing that a person is in a management position alone is not sufficient to establish ownership without also showing a person has possession of the property. In this case, the State failed to meet its burden that Bobby Perez was the owner of the property. ISSUE I RESTATED WITH ARGUMENT AND AUTHORITIES The evidence is legally insufficient to support a guilty verdict because the State failed to prove beyond a reasonable doubt that Bobby Perez was the owner of the property as charged in the information. Appellant s Brief - Page 3

8 Preamble: Murillo recognizes that cases from the Texas Court of Criminal Appeals, such as Dingler v. State, 705 S.W.2d 144 (Tex. Crim. App. 1984), Johnson v. State, 606 S.W.2d 894 (Tex. Crim. App. 1980) and Freeman v. State, 707 S.W.2d 597, 603 (Tex. Crim. App. 1986), may foreclose her argument. However, Murillo raises the issue for possible further review. Standard of Review: A challenge to the legal sufficiency of the evidence requires the appellate court to determine whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). As the exclusive judges of the facts, the credibility of witnesses, and the weight to be given to their testimony, the jurors may believe or disbelieve all or any part of a witness s testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981). Argument and Authorities: To establish the charged offense of Theft > $50.00 but < $500.00, the State must prove that (1) Murillo unlawfully appropriated property with the intent to deprive the owner of the property; and (2) the value of the property was greater than $50.00 but less than $ TEX. PEN. CODE 31.03(a)&(e)(2). The information in the instant case alleged that Murillo intentionally and knowingly appropriated, by acquiring and otherwise exercising control over, property, namely: clothing and shoes, of the value of Fifty Dollars ($50.00) or more but less than Five Hundred Dollars ($500.00), from Bobby Perez, the owner thereof, without the effective consent of the owner, and with intent to deprive the owner of the property, Against the peace and dignity of the State. (CR 5). The evidence is legally insufficient to prove that Murillo committed the offense of theft Appellant s Brief - Page 4

9 because the State failed to prove that Bobby Perez was the owner of the property. Owner is defined as a person who: (A) 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; or (B) is a holder in due course of a negotiable instrument. TEX. PEN. CODE sec. 1.07(35). Possession means actual care, custody, control, or management. TEX. PEN. CODE sec. 1.07(39). The Court in Freeman found that [b]ased upon his position, a security guard of a company s store may be an owner of the company s merchandise or property for purposes of the theft statute, if, at the time of the commission of the offense, he had the greater right to possession than did the accused. Freeman v. State, 707 S.W.2d 597, 603 (Tex. Crim. App. 1986). The Court in Freeman also went on to state, However, proof of a management position alone is insufficient to sustain the ownership allegation absent some showing that the named owner had exercised some degree of care, custody, control, or management over the property allegedly stolen. Id. at 603. In Dingler v. State, 705 S.W.2d 144 (Tex. Crim. App. 1984), the Court held that the employment relationship is determinative who is the proper owner of the property and thus who has a greater right of possession of the property. Id. at See also Johnson v. State, 606 S.W.2d 894 (Tex. Crim. App. 1980). Since Perez was an employee of Nordstrom s and Murillo was only a customer, Perez would have had the greater right of possession of the property allegedly stolen under the reasoning in Dingler. However, there is a fundamental flaw with this application and reasoning. Perez did not have any right of possession to the clothing and merchandise owned and possessed by Nordstrom s. One does not have an interest in property of another merely because he is an employee of the other. See Freeman, 707 S.W.2d 597, 606 (Clinton, dissent). The ownership Appellant s Brief - Page 5

10 interest in the property, in the instant case, is with Nordstrom, not Perez. As Judge Clinton observes it is the personal possessory interest in property that creates the right of possession for that person. Id. at 607. An employee ordinarily does not have a possessory interest in property owned by a corporation such as Nordstrom s. Id. If an employee were to walk out of the store without paying for merchandise owned by Nordstrom s, they would be charged with theft. This is true because the employee has no possessory interest in the property. Accordingly, because an employee normally does not have a possessory interest in property of his employer, there is nothing that provides the employee a right or a greater right to possess the property than that of another person, other than the corporation who truly owns the property. Id. Though Perez was the loss prevention manager at Nordstrom s at the time of the alleged offense, the State failed to prove beyond a reasonable doubt that he was the owner or special owner of the property allegedly stolen. The State merely showed that Perez was an employee of Nordstrom s working in a management capacity in loss prevention (RR 69,72), but it failed to prove Perez had ownership of, a possessory interest in, or a greater right to possess Nordstrom s property. Perez testified that he was the loss prevention manager on February 28, 2008 at Nordstrom s. (RR 69). He stated his duties that day were to open the store, file paperwork and watch the security cameras. (RR 72). He did not testify that he had any ownership interest in the property or that he had any right or a greater right to possess the property, and the evidence did not support such a finding. The State failed to prove, by the evidence adduced at trial, that Bobby Perez was the owner or special owner of the property allegedly stolen. CONCLUSION WHEREFORE, Ms. Murillo respectfully requests that this Court VACATE the trial court s order denying her motion for a directed verdict and REVERSE her conviction, and remand her case to the trial court for entry of a judgment of acquittal. Appellant s Brief - Page 6

11 Respectfully submitted, Kevin B. Ross, P.C. Bar Card No Sorrels, Udashen & Anton 2311 Cedar Springs Road Suite 250 Dallas, Texas (fax) Attorney for Appellant CERTIFICATE OF SERVICE On this day of, 2011, a true and correct copy of Appellant s Brief was mailed to Mr. John Rolater, Jr., Assistant District Attorney, 2100 Bloomdale Rd., Ste 20004, McKinney, Texas Kevin B. Ross, P.C. Appellant s Brief - Page 7