In the Court of Appeals for the Fifth District of Texas at Dallas RENE LOPEZ, JR., Appellant v. Nos. 05-09-00044-CR 05-09-00045-CR THE STATE OF TEXAS, Appellee Trial Numbers 380-81309-07 and 380-81310-07 in the 380th District Court of Collin County The Honorable Charles Sandoval, Judge Presiding STATE S BRIEF John R. Roach Criminal District Attorney Collin County, Texas John R. Rolater, Jr. Asst. Criminal District Attorney Chief of the Appellate Division Oral argument is requested, but only if Appellant is also requesting argument. Emily Johnson-Liu Asst. Criminal District Attorney 2100 Bloomdale Rd., Suite 20004 McKinney, TX 75071 (972) 548-4323 FAX (214) 491-4860 State Bar No. 24032600 Jeffrey Lehman Asst. Criminal District Attorney
Table of Contents Index of Authorities...iii Statement of the Case... 1 Statement of Facts... 1 Summary of the State s Arguments... 6 Argument & Authorities... 7 Issues One & Two (Accomplice Witness Corroboration)... 7 The testimony of Appellant s accomplice in an employee-theft scheme was sufficiently corroborated by Appellant s boss, who identified him as the man redeeming the fraudulently created store credit card. I. Standard for reviewing sufficiency of the corroboration evidence...7 II. Farmer s identification of Appellant in the video corroborates the accomplice testimony...8 Issues Three Through Six (Sufficiency)... 11 The evidence is legally and factually sufficient to support the trial court s finding of guilt for credit card abuse. The evidence showed Appellant was criminally responsible for his accomplice s fraudulent creation of the store credit card and that the card was fictitious because it purported to be, but was not actually, issued by Home Depot. I. Standards for reviewing sufficiency...11 II. Appellant was a party to Roberson s fraudulent creation of the card...11 III. The card Appellant used was fictitious...13 A. The card was not issued by the purported issuer, Home Depot... 13 i
B. The card was fictitious under the dictionary definitions of the term... 15 IV. The evidence was factually sufficient to show Appellant used the card...16 Prayer... 18 Certificate of Service... 18 ii
Index of Authorities Cases Brown v. State, 270 S.W.3d 564 (Tex. Crim. App. 2008)... 7, 8 Castillo v. State, 221 S.W.3d 689 (Tex. Crim. App. 2007)... 7 Druery v. State, 225 S.W.3d 491 (Tex. Crim. App. 2007)... 8 Goodman v. State, 66 S.W.3d 283 (Tex. Crim. App. 2001)... 11 Jackson v. State, 898 S.W.2d 896 (Tex. Crim. App. 1995), overruled on other grounds by Malik v. State, 953 S.W.2d 234, 239 (Tex. Crim. App. 1997)... 12 Jackson v. Virginia, 443 U.S. 307 (1979)... 11 Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997)... 12 Moallen v. State, 690 S.W.2d 244 (Tex. Crim. App. 1985)... 14 Morrow v. State, 862 S.W.2d 612 (Tex. Crim. App. 1993)... 15 Olurebi v. State, 870 S.W.2d 58 (Tex. Crim. App. 1994)... 14 Simmons v. State, 282 S.W.3d 504 (Tex. Crim. App. 2009)... 8 Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006)... 11 Statutes, Codes, and Rules Tex. Code Crim. Proc. art. 38.14... 7 iii
Tex. Pen. Code 32.31... 11, 13 Tex. Pen. Code 7.02... 12 Other Authorities Black s Law Dictionary (6th ed. 1990)... 15 Restatement (2nd) of Agency 231 cmt. a. (1958)... 15 Webster s Unabridged Dictionary (2nd ed. 1998)... 16 iv
Statement of the Case Appellant Rene Lopez, Jr. was indicted with two cases of credit card abuse. 09CR 4; 10CR 4. 1 Following a bench trial on both cases, he was found guilty, and his sentence in both cases was suspended for three years. 09CR 39; 10CR 28. Statement of Facts April Roberson was working as a cashier for the Home Depot in Mesquite, Texas. RR 29. She knew Appellant, who worked in the loss prevention department for the same Home Depot. RR 10, 29, 30. On November 10, 2006, Roberson was working at the register that handled returns. RR 30, 33. Ordinarily, if a customer came in to return merchandise without a receipt, the cashier would issue store credit to the customer. RR 9, 30. The customer would be given a plastic card imprinted with a designated number, which the customer could then use toward future Home Depot purchases. RR 19-20, 30. The returned merchandise would be credited in the store s inventory in the computer, and the merchandise would be restocked. RR 9, 30. On that particular day, Roberson generated a card with a store credit around $1,400, purportedly for some returned ladders, but no one returned ladders to the store that day without a receipt. RR 9, 31, 34-35. At trial, Roberson admitted that it was a fictitious credit. RR 31. When asked why she 1 The clerk s record in Cause 380-81309-07 will be referred to as 09CR followed by the page number, and in Cause 380-81310-07 as 10CR. 1
had created the fictitious credit, she answered, Because I had it for [Appellant] and he gave me cash for it. RR 31. She explained that she would meet Appellant by the loss prevention office, away from the store surveillance cameras, and slide the card to him, after which he gave her $200 for the card. RR 31-32. Later, Appellant s boss Jared Farmer discovered several ladders that the store showed to be in inventory but that could not be located in the store. RR 9-10. Farmer checked with the receiving department to see whether the store had actually received as many ladders as the inventory showed in stock and ultimately determined that Roberson had fraudulently issued the store credit card for nonexistent ladders. RR 8-10. Home Depot then generated a print-out of the card s history, showing when the card had been issued and used. RR 12-13, 18. Farmer identified the print-out at trial, and the court took judicial notice of it. RR 12-13; 09CR 34-38. 09CR 35. The first two times credit was redeemed from the card formed the basis of the two indictments against Appellant. 09CR 4, 35-36; 10CR 4. Both of 2
these two transactions occurred at the Home Depot in McKinney, not the Mesquite store where both Roberson and Appellant were known. 09CR 35-36; RR 13-14. Register 41, where the card was used the second time, was called the pro desk. RR 16. Farmer obtained the video recordings from the store surveillance cameras at both the McKinney and Mesquite stores, and these were introduced as State s Exhibits 1 and 2. RR 11. State s Exhibit 1 captured Roberson at the returns desk at the Mesquite store on November 10th, generating the store credit from a nonexistent return. RR 12; SX 1. State s Exhibit 2 contained the video of the two transactions that occurred on November 12th and 13th at the McKinney store. RR 14; SX 2. Farmer testified that the customer in the video using the card on both November 12th and 13th was Appellant. RR 14-17, 24, 26. Although the video shows the perspective of the store from above the cash register and does not show anyone s face, Farmer testified that he had known and worked with Appellant for about a year, knew how he carried himself, what he wore, and what his habits were. RR 15, 24; SX 2. State s Exhibit 2 also contained Home Depot s annotated video, correlating the video recording at the cash register to the transactions performed on that register at the same time. 2 SX 2. The annotated video for the transac- 2 The copies of State s Exhibits 1 & 2 originally submitted with the reporter s record omitted the annotated video included on the original exhibits and that the trial court viewed during trial. See RR 37-38. The State had requested that the court reporter supplement the record with complete copies of both CDs. 3
tion from November 12th, in particular, showed that the customer who Farmer identified as Appellant, purchased $590.41 in merchandise in transaction 8822 at Register 2 with store credit number 149131331407: SX 2. 3 The store credit card number recorded on the right-hand pane of the annotated video was the same as the one Roberson created. SX 2; RR 13, 18. Farmer confronted Roberson about creating the card, and his conversation with her heightened his suspicion of Appellant. RR 21. The next day, Appellant failed to appear for work and never returned. RR 7-8. Roberson, who testified at trial, admitted she had created the fraudulent store credit and had a pending theft case out in Dallas County for working together with Appellant. RR 28, 31. She testified that after Appellant quit Home Depot, Appellant called her, told her they [are] on to us, and suggested that she quit. RR 32. During his case-in-chief, Appellant testified on his own behalf and denied ever giving Roberson $200 for a card or telling her to quit. RR 39, 43. He also 3 To open the annotated video on State s Exhibit 2 from Windows, right click on the drive icon, select Open, and double click on Rene EX Loss Prevention at McKinney with bad store credits.htm. 4
claimed to have left Home Depot after working there eight months because of a better position at another store. RR 40-41. Appellant testified that he did not have access to the store registers that created the store credit cards and denied that he ever generated a store credit. RR 42-43. Appellant testified that he had tattoos on both arms, but interestingly, he was never asked, and thus he never testified, whether he was the person Farmer identified in the store s surveillance videos using the fictitious credit. RR 43. The trial court found Appellant guilty and sentenced him to probation in both cases for three years. RR 49, 50-51. 5
Summary of the State s Arguments State s Reply to Issues One & Two: The testimony of Appellant s accomplice, a fellow employee at Home Depot, was sufficiently corroborated. Appellant s boss in the loss prevention office of Home Depot identified Appellant as the customer in the videotape from another Home Depot store using the store credit card that the two had fraudulently created based on a fake return. State s Reply to Issues Three through Six: The evidence is legally and factually sufficient to support Appellant s conviction for credit card abuse. The State alleged that Appellant had fraudulently created the store credit card, and the evidence showed that he was indeed criminally responsible for the acts of his accomplice, whose testimony indicated she generated the card for him. Further, the evidence is sufficient to show that the card was fictitious under the Court of Criminal Appeals definition in Olurebi because it was not issued by Home Depot but by two employees stealing from the store. 6
Argument & Authorities Issues One & Two (Accomplice Witness Corroboration) The testimony of Appellant s accomplice in an employeetheft scheme was sufficiently corroborated by Appellant s boss, who identified him as the man redeeming the fraudulently created store credit card. I. Standard for reviewing sufficiency of the corroboration evidence A conviction cannot rest on the testimony of an accomplice unless corroborated by other evidence that tends to connect the defendant with the offense committed, and the corroboration is not sufficient if it merely shows the commission of the offense. TEX. CODE CRIM. PROC. art. 38.14. In assessing the sufficiency of corroborative evidence, a reviewing court eliminates the testimony of the accomplice witness from consideration and examines the testimony of other witnesses to ascertain whether the non-accomplice evidence tends to connect the accused with the commission of the offense. Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007). The corroborative evidence, however, need not be sufficient in itself to establish guilt, nor must it directly link the accused to the commission of the offense. Brown v. State, 270 S.W.3d 564, 567 (Tex. Crim. App. 2008). The evidence must simply link the accused in some way to the commission of the crime and show that a rational fact-finder could conclude that this evidence sufficiently tended to connect the accused to the offense. Simmons v. State, 282 S.W.3d 504, 508 (Tex. Crim. 7
App. 2009). And when there are two permissible views of the evidence (one tending to connect the defendant to the offense and the other not tending to connect the defendant to the offense), appellate courts should defer to that view of the evidence chosen by the fact-finder. Id. The evidence must be viewed in the light most favorable to the verdict. Brown, 270 S.W.3d at 567. II. Farmer s identification of Appellant in the video corroborates the accomplice testimony An accomplice is someone who participates with the defendant before, during, or after the commission of a crime and acts with the required culpable mental state. Brown, 270 S.W.3d at 567. A witness is an accomplice as a matter of law when she is charged with the same offense as the defendant or a lesser-included offense or when the evidence clearly shows that the witness could have been so charged. Druery v. State, 225 S.W.3d 491 (Tex. Crim. App. 2007). Here, April Roberson, who participated in the crime and was charged in Dallas County for her participation with Appellant, is an accomplice as a matter of law. Contrary to Appellant s assertions, Farmer s identification of Appellant as the man who used the fraudulently issued store credit card was sufficient to corroborate Roberson s accomplice testimony. RR 14-17, 24, 26. Appellant admits that a less than positive identification can be sufficient corroboration for an accomplice s testimony. See App. Brief at 10. But he argues that there is no way Farmer could have really identified Appellant 8
from the videos. Id. The trial court, however, was attuned to the reliability of Farmer s identification and questioned Farmer about it himself: [Defense counsel]: In fact [the man on the video] looks like a lot of other Hispanic males or white males that are in Collin and Dallas County or anywhere else? [Prosecutor]: Objection, Your Honor, argumentative. THE COURT: Overruled. Is that what it looks like? [Jared Farmer]: It looks like Rene Lopez to me. [Defense counsel]: And it looks like a lot of other people too, doesn t it? [Jared Farmer]: I guess. RR 24. Ultimately, the trial court relied on Farmer s identification. That decision is entitled to some weight, given that the trial judge had the benefit of seeing Appellant before him during the trial. And the videos corroborate that Farmer could have made the identification that he did. Although the angle of the camera directly above the register in the video from Register 2 would have made a stranger-to-stranger identification difficult because it did not capture facial features, Farmer knew Appellant. He was Appellant s direct boss at the time he saw the videos, and he testified that he was familiar with what Appellant wore and his mannerisms, all of which would have enhanced his ability to correctly identify Appellant. RR 7, 10, 15. Also, the videos are in color and of fairly good resolution when displayed in a small screen, so that someone familiar with those captured on film could identify them from their build and clothing. The pattern and shape of 9
the logo on the man s two-tone dark baseball cap in the Register 2 video would have been distinctive to someone familiar with it. See SX 2 at Register 2 at 11/12/2006 at 11:48. His dark, long-sleeve shirt set off by a white color was certainly not a one-of-a-kind, but paired with the baseball cap, it may well have given Appellant away to those who knew him. The video from the pro desk register also corroborates Farmer s identification and, ultimately, Roberson s testimony implicating Appellant. Instead of being right above the register, the camera at the pro desk provides a better angle for determining relative height. Appellant testified at trial that he was 5 5 tall (RR 43), and the video from November 13th shows a man in a dark blue or black baseball cap who is several inches shorter than the three other men around him and about the same height as one of the female clerks. SX 2 at Pro Desk at 11/13/2006 at 4:12:40 to 4:13:10. Furthermore, this transaction took a bit of time, giving Farmer longer to observe the mannerisms of the two men and strengthening his identification. See SX 2 at Pro Desk at 11/13/2006 at 4:12 to 4:23. Appellant s counsel obviously doubted Farmer s identification, but the trial court credited that identification and with good reason. Farmer s identification of Appellant as the man using the store credit card was sufficient to corroborate Roberson s testimony that she met him near the loss prevention office and sold him the card for $200. Appellant s first two points of error should be overruled. 10
Issues Three Through Six (Sufficiency) The evidence is legally and factually sufficient to support the trial court s finding of guilt for credit card abuse. The evidence showed Appellant was criminally responsible for his accomplice s fraudulent creation of the store credit card and that the card was fictitious because it purported to be, but was not actually, issued by Home Depot. I. Standards for reviewing sufficiency In reviewing the legal sufficiency of the evidence, an appellate court views the evidence in the light most favorable to the prosecution and determines whether any rational jury could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). A challenge to the factual sufficiency of the evidence requires the court to give a neutral review to all the evidence. See Goodman v. State, 66 S.W.3d 283, 285 87 (Tex. Crim. App. 2001). The reviewing court considers: (1) if the evidence supporting the jury s verdict, although legally sufficient, is nevertheless so weak that the verdict seems clearly wrong and manifestly unjust and (2) if the jury s verdict, in light of the conflicting evidence, is against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). II. Appellant was a party to Roberson s fraudulent creation of the card A person commits the offense of credit card abuse if he uses a fictitious credit card with intent to obtain a benefit. Tex. Pen. Code 32.31(b)(2). Here, 11
although not an element of the offense, the indictments further described the card, namely: a Home Depot in-store credit number 1491331407, which credit number was illegally issued without the consent of Jarrod Farmer, by the defendant fraudulently creating the in-store credit card. 09CR 4; 10CR 4. Appellant takes issue with the characterization that he fraudulently created the in-store credit card. App. Brief at 12-13. Even if the State was required to prove this additional, non-elemental allegation in the indictment, the State did so through the law of parties. Appellant was criminally responsible for his accomplice s fraudulent creation of the card. Under the law of parties, a person is criminally responsible for an offense committed by the conduct of another if, acting with the intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Tex. Pen. Code 7.02. The indictment is not required to give notice that a conviction is sought under the law of parties. Jackson v. State, 898 S.W.2d 896, 898 (Tex. Crim. App. 1995), overruled on other grounds by Malik v. State, 953 S.W.2d 234, 239 (Tex. Crim. App. 1997). Here, the evidence showed that Roberson created the card to sell to Appellant. The prosecutor asked Roberson why she fraudulently created the card, and she answered, Because I had [the card] for [Appellant] and he gave me cash for it. RR 31. Roberson s testimony also suggested that the two had a pre-arranged place to make their illegal ex- 12
change, indicating that Appellant was in on the plan from the beginning. Roberson testified that she would meet [Appellant] away from the surveillance cameras and slide the card to him. RR 32. Roberson s clandestine actions of showing up outside the loss prevention office and sliding a Home Depot store credit card toward Appellant would have been meaningless to him if he did not already know of their arrangement ahead of time. Because Appellant is criminally responsible for the fraudulent generation of the card, Appellant s contention that the evidence is legally and factually insufficient on this basis is without merit. III. The card Appellant used was fictitious The evidence is sufficient to establish that the card Roberson generated and that Appellant used was fictitious, both under the definition of fictitious in the Court of Criminal Appeals decision in Olurebi and under the dictionary definitions of the term. The card in the instant case constitutes a fictitious card under Olurebi because it was not issued by the purported owner, Home Depot. A. The card was not issued by the purported issuer, Home Depot The credit card abuse statute does not define what it means for a card to be fictitious. See Tex. Pen. Code 32.31. But the Court of Criminal Appeals has held that to constitute a fictitious credit card, the card must either have been (1) issued by someone other than the purported owner, or (2) issued to a nonexistent cardholder. Olurebi v.state, 870 S.W.2d 58, 60-61 (Tex. Crim. 13
App. 1994). The Court in Olurebi provided an illustration for each of the two ways a card could be fictitious. The example for the first category involved a card that was counterfeit. If it purported to be issued by the owner, but was not, in fact, issued by that owner, it would meet the Court s test for being fictitious. See id. at 60 (citing Moallen v. State, 690 S.W.2d 244, 246 (Tex. Crim. App. 1985)). Second, a card could be fictitious where the card had been issued by the owner but had been issued to a nonexistent person. Id. at 61. The Court reasoned that to constitute a credit card under the Penal Code definition, the card had to be issued to a person who actually existed, but that if the card purported to be issued to an existent person and actually was not, then the card constituted a fictitious card. Id. The Court further explained that under the facts of Olurebi, the credit card owner (Chevron) never intended to issue a credit card to a nonexistent person and because there was evidence that the cardholder did not exist, the credit card falsely purported to be issued by Chevron to a nonexistent cardholder, sufficing to meet the State s burden of proof. Olurebi, 870 S.W.2d at 61. The card at issue here qualifies as fictitious under the first definition because the card purported to have been issued by Home Depot, but in actual fact, Home Depot never authorized its issuance. Instead, the card was issued by Roberson and Appellant, who were committing theft from their employer and acting solely for their own personal gain. As a matter of agency law, a master is not responsible for criminal acts of the servant that are clearly in- 14
appropriate to accomplishing the result that the master has authorized. Restatement (2nd) of Agency 231 cmt. a. (1958). Roberson s acts (and Appellant s facilitation of that crime) thus cannot be attributed to Home Depot. Farmer testified that he considered Roberson s actions to be stealing and that he never authorized her actions or those of Appellant. RR 8, 21-22. Roberson also testified that she made up the $1400 store credit on the card and agreed that it was fictitious. RR 31. Because Home Depot never issued the store credit and yet the card purported to be so issued, it was fictitious. B. The card was fictitious under the dictionary definitions of the term The card at issue here also qualified as fictitious under the dictionary definitions of the term. Where statutory terms are not defined by the legislature, courts ascribe to those terms their ordinary meaning. Morrow v. State, 862 S.W.2d 612, 614 (Tex. Crim. App. 1993). Black s Law Dictionary defines fictitious as founded on a fiction; having the character of a fiction; pretended; counterfeit. Black s Law Dictionary 624 (6th ed. 1990). Here, the store credit card was founded on a fiction because the ladders Roberson purported to return to the store s inventory never existed. As the return was never made, the credit that the card represented had always been false. The creation of a credit depended on the return of value to the store. If no return was made, the store never actually held a credit. Thus, the store card, which purported to have a credit at the store, was fictitious. 15
To be sure, Roberson manipulated the computer inventory to make it seem as if a return had been made, thus generating a physical card with a $1400 balance that the clerks at the McKinney store accepted as genuine. But this does not prevent the card from being fictitious. The card was nothing more than a false assertion that a credit existed. In actual fact, it was all a pretense. Webster s defines fictitious as created, taken or assumed for the sake of concealment; not genuine; false. Webster s Unabridged Dictionary 713 (2nd ed. 1998). Roberson and Appellant created the store credit card for the purpose of concealing their theft, and the card was not what it purported to be. The evidence is no less sufficient here than if Roberson gave Appellant a store credit card without ever tying it into the computer system and then let him purchase some merchandise by accepting the card from him without running it through the computer. In that situation, as here, the card was still based on a fiction, even if the card itself existed. Because the evidence showed that the card was not actually issued by Home Depot and that it otherwise fit within the plain meaning of fictitious, the State s proof is legally and factually sufficient. IV. The evidence was factually sufficient to show Appellant used the card Contrary to Appellant s assertion, the evidence is factually sufficient to establish that Appellant used the card. See App. Brief at 16. Farmer identified 16
Appellant as the man in both transactions captured on video, and the annotated videos on State s Exhibit 2, which show the transactions on the register that correspond to the images in the video, corroborate Farmer s conclusion that Appellant did not just appear in the videos but actually redeemed value from the card on November 12th and 13th. See SX 2; 09CR 35; RR 13-16. The video from November 12th at Register 2 is clear enough to capture Appellant handing the cashier a thin plastic, orange card about the size of a credit card, which the trial court was free to conclude was the store credit card. See SX 2 at Register 2 on 11/12/2006 at 11:49:26. The evidence is thus legally and factually sufficient, and this Court should overrule Appellant s issues three through six. 17
Prayer Appellant s trial was without prejudicial error. The State prays that this Court will affirm Appellant s conviction and sentence. Respectfully submitted, John R. Roach Criminal District Attorney Collin County, Texas John R. Rolater, Jr. Asst. Criminal District Attorney Chief of the Appellate Division /s/ Emily Johnson-Liu Emily Johnson-Liu Asst. Criminal District Attorney 2100 Bloomdale Rd., Suite 20004 McKinney, TX 75071 State Bar No. 24032600 (972) 548-4331 FAX (214) 491-4860 Certificate of Service The State has sent a true copy of its brief by first-class mail to counsel for Appellant, Michael Levine, Nawaz & Levine, L.L.P., Suite 500, 701 Commerce Street, Dallas, TX 75202, on this, the 26th day of October 2009. /s/ Emily Johnson-Liu Asst. Criminal District Attorney 18