Opinion
No. 05-08-00459-CR
Opinion filed June 26, 2009. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the County Court at Law, Rockwall County, Texas, Trial Court Cause No. CR07-0544.
Before Justices MOSELEY, FITZGERALD, and LANG-MIERS.
MEMORANDUM OPINION
A jury convicted Matthew Blake Manis of theft of $500 or more but less than $1500, a class A misdemeanor. See Tex. Penal Code Ann. § 31.03(e)(3) (Vernon Supp. 2008). The trial court sentenced appellant to sixty days in jail and a $100 fine, but suspended the imposition of confinement and placed appellant on community supervision for a period of twelve months. On appeal, appellant argues that the evidence is legally and factually insufficient to support the verdict, the jury received information during deliberations that was not offered into evidence, and the trial court erred by admitting surveillance recordings into evidence. We affirm.
Sufficiency of the Evidence
In his second and third issues, appellant argues that the evidence is legally and factually insufficient to support the verdict.Standards of Review
We review a challenge to the legal sufficiency of the evidence under well-established standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004). We view all the evidence in the light most favorable to the verdict and determine whether, based on the evidence and reasonable inferences, any rational trier of fact could have found the defendant guilty of the offense beyond a reasonable doubt. Lane, 151 S.W.3d at 191-92 (citing Jackson, 443 U.S. at 319). We measure the elements of the offense as defined in a hypothetically correct jury charge for the case. Grotti v. State, 273 S.W.3d 273, 280 (Tex.Crim.App. 2008). In a factual sufficiency review, we view all the evidence in a neutral light and ask whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Id. at 283; Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). Evidence is factually insufficient when the evidence supporting the conviction is so weak, or when the evidence supporting the conviction is outweighed by the great weight and preponderance of the contrary evidence, so as to render the verdict clearly wrong and manifestly unjust. Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007). In conducting our review, we consider the most important evidence that the appellant contends undermines the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). The record must show some objective basis for concluding that the great weight and preponderance of the evidence contradicts the jury's verdict before we will reverse for factually insufficient evidence. See Roberts, 220 S.W.3d at 524. The jury is responsible for resolving conflicts in the evidence, weighing the evidence, and drawing reasonable inferences from the evidence. Threadgill v. State, 146 S.W.3d 654, 653 (Tex.Crim.App. 2004). Although we are permitted to substitute our judgment for the jury's when considering weight and credibility issues, we may do so only to a very limited degree. Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006).Applicable Law
A person commits theft if he unlawfully appropriates property with intent to deprive the owner of property. Tex. Penal Code Ann. § 31.03(a) (Vernon Supp. 2008). Appropriation of property is unlawful if it is without the owner's effective consent. Id. § 31.03(b)(1) (Vernon Supp. 2008). "Appropriate" means "to acquire or otherwise exercise control over property other than real property." Id. § 31.01(4)(B) (Vernon Supp. 2008).Factual Background
Appellant worked in the assets protection office of a Target store in Rockwall. He was charged with stealing two GPS units from the store during his shift on the night of January 27, 2007. The indictment alleged thatappellant, on or about the 27th day of January 2007, unlawfully appropriated two GPS units of the value of $500 or more but less than $1500, from owner Scott Douglas, with intent to deprive Douglas of the property.Scott Douglas testified that he is the internal investigator for Target's assets protection division and acts as Target's agent in theft investigations. He stated that the GPS units alleged in the indictment belonged to Target. He testified that he began investigating appellant for stealing from the store in November 2006 when he discovered that appellant was selling "high-theft" items on eBay. The items, such as electric shavers, boxed DVD sets, and a Sony PlayStation Portable, were described on eBay as "NIB," or "new in box" or "new in package." He checked appellant's purchase history at the store and determined that appellant had purchased a kitchen-sized trash can around the time that the "high-theft" items were offered for sale on eBay. Douglas testified that he considered appellant's purchase of the trash can suspicious "because it was returned two days later." Douglas explained that thieves commonly employ a technique called "box stuffing," where they conceal merchandise inside a large item, pay for the large item only, leave with the stolen merchandise, and later return the large item. He asked appellant about the trash can purchase, but did not think appellant's explanation was reasonable. Appellant's purchase history did not show that he had purchased any of the items that he offered for sale on eBay from Target, and Douglas suspected that appellant had stolen the items from Target by "box-stuffing" them in the trash can. However, when Douglas tried to review the surveillance recordings from the day that appellant purchased the trash can, he discovered that the VCR tape had already been recorded over even though the company usually retained tapes for a longer period of time. The only recording from November 27 that was not already "taped over" with recording from November 28 was "one video shot that was just a random shot of the sales floor from the 27th." That recording included what Douglas described as a "gap" in the recording, during which appellant turned off the VCR for about six minutes and turned it back on right after he purchased the trash can. Douglas decided to secretly connect a back-up digital recorder to eight of the cameras in the store's surveillance system, so that the digital recorder would continue to record even if someone turned off the VCRs. He reviewed the digital recordings regularly beginning in November 2006 and did not find anything unusual on those recordings until January 27, 2007. Sometime before January 27, 2007, appellant asked his supervisor, Anthony Berticelli, if he could change his schedule to work the night shift on January 27. Appellant said he wanted to work that shift because the cleaning crew was scheduled to work that night and the crew's regular supervisor would not be with them. Berticelli, being aware of the investigation, reported appellant's request to Douglas. Douglas thought appellant's request was unusual because "it wouldn't be common knowledge for the assets protection manager to know that the cleaning crew supervisor wasn't going to be there." Douglas went to the store on January 30 to review the recordings from the January 27 night shift. Appellant appeared to have turned off the surveillance system VCRs the night of his shift, but Douglas was able to watch the back-up recordings from the eight cameras connected to the secret digital recorder he set up. After he watched all the recordings from appellant's shift, he determined that only certain portions were relevant and saved those portions to a compact disc. Douglas explained that he saved a total of seven video clips containing about twenty minutes of surveillance from appellant's shift-six clips of appellant inside the assets protection office, and one clip of appellant leaving the store the next morning. The seven video clips were admitted into evidence and played for the jury. The six clips of appellant inside the assets protection office during his shift show "three different time frames" from two different camera angles. The digital recordings show appellant bringing what were alleged as two GPS units into the assets protection office and putting them on the floor next to a desk. They also show appellant bringing a box containing a file cabinet into the office, removing the packing and file cabinet from the box, putting the alleged GPS units into the file cabinet, placing the file cabinet in its box, replacing the packing, and taping up the box. They also show appellant leaving the office, returning to the office, raising his shirt, and removing a package of computer software from his waistband. And, at one point, they show appellant removing snacks from his jacket pocket after he returned to the office. The seventh clip is "an exit view shot" that shows appellant retrieving a shopping cart at the end of his shift and leaving the store with a large box and a Target bag in the cart. Douglas testified that Target did not have any surveillance recordings showing appellant or anyone else taking GPS units off the store shelves and that the camera in that part of the store was not working. He testified that he checked the store's GPS inventory on the computer on January 30, 2007 and it showed that the store should have at least three GPS units in inventory-two Magellan brand and one TomTom brand. But when he checked the store's physical inventory a couple of weeks later, the store was missing all three GPS units. The store's records indicated that no GPS units had been sold and no new units had been received between the date he checked the inventory on the computer and the date he conducted a physical count because Target was in the process of discontinuing the sale of those devices. Douglas and Berticelli interviewed appellant about this incident. During the interview, appellant did not admit that he stole the GPS units and denied that the items shown on the recordings were GPS units-he said "they were tools and they were his-and that at no point were they GPS units." Appellant also told Berticelli that he staged the incident to get Berticelli in trouble for conducting an interview of appellant "under false pretenses." Appellant explained in the interview that the file cabinet was his personal file cabinet and that he had purchased it at Walmart months before. He said he brought it to Target because the file cabinet he had in the assets protection office did not lock. He also told them that he moved the file cabinet to the stock room when water began leaking into the assets protection office. Douglas testified that he inspected the stock room and concluded that it did not contain sufficient space to store a file cabinet. He also testified that bringing a personal file cabinet into the office was not proper procedure. Douglas reported his investigation to Officer Steve Tigert of the Rockwall Police Department and gave the officer the compact disc containing the recordings of appellant's shift that he had saved. Detective Kevin Tilley, to whom the case was assigned, testified that after he looked at the recordings, he requested a warrant for appellant's arrest. However, he said he did not know what a GPS package looked like and that he could not determine that the units appellant allegedly stole belonged to Target. The items appellant placed in the file cabinet were never recovered, but the State offered photographs of GPS units sold at Target that were purported to be the same types of GPS units as those appellant placed in the file cabinet. Douglas testified, "Well, it's pretty obvious when you look at it" that the items in the recordings are the same as the items in the photographs. Douglas testified that the TomTom brand GPS unit sold for $499 and the Magellan brand GPS unit sold for $599. Zach Decker testified for the defense. He testified that he began working in security at Target in July 2006. Decker explained that for someone to steal a GPS unit from Target they would have to use a knife or cutting tool to cut the unit out of the package or use the magnetic key to unlock the peg hook. He said the key was kept at the service center and that all security personnel had access to the key, but they had to let someone know they had it. He also said that the camera in the service center area of the store was working in January 2007. Decker testified that he found an empty GPS package in the store's empty-package bin on the morning of January 27, 2007, before appellant allegedly stole the GPS units. He prepared a report that same morning and documented that the unit had been cut out of the package. He noted in the report that the store was having technical difficulty with the camera in the area of the store where the GPS units were displayed. Decker testified that Target had a problem with GPS units being stolen and this was not the first time a GPS unit was reported missing. Appellant testified that he began working at Target in September 2004 as an assets protection specialist, "the undercover position to catch shoplifters." After he had served the minimum time required to obtain a promotion, he was promoted to executive team leader over assets protection and was considered to have "high potential" for future promotions. He said his goal was to continue to work for Target and eventually work in the assets protection division at the Minnesota corporate offices. Appellant testified that he met a friend in college and they often purchased items in "Chinatown" to sell on eBay. Appellant said he began selling items on eBay as a hobby after he got out of the Air Force. At times, he purchased items from Target and sold them on eBay. He said he had cleared this through a supervisor. Appellant testified that he got four GPS units from his friend, who had obtained them in "Chinatown." Appellant explained that he changed his schedule to work the overnight shift on January 27, 2007 because the cleaning crew's regular manager told him that he would be out of town and another crew manager would be at the store that night, and also because his in-laws were coming over the next day and he wanted to spend time with them. He said he arrived at the store about 8:30 p.m. carrying his briefcase and a Target bag, and that he brought in the four GPS units that he personally owned because he wanted to compare his units to the ones Target sells to make sure his were real. He said the deleted portions of the surveillance recordings would have shown him arriving at the office when his shift started, entering the office with the GPS units, and taking that merchandise out of the office soon thereafter. Appellant testified that after he took the GPS units to the back of the store to compare them, he went to the stock room to get his file cabinet because he wanted to take it home. He testified that he brought the file cabinet in several months before January 2007 and used it in the assets protection office until the office started to leak, and that is when he took the file cabinet to the stock room. He said he was required to have a locking file cabinet, but the locks on his Target-issued file cabinet were broken and no one had the keys. Although the surveillance recordings show appellant placing only two purported GPS units in the file cabinet, appellant testified that the deleted portions of the recordings would have also shown him bringing his other two GPS units from the stockroom back into the assets protection office and putting them in the file cabinet. He testified that after he put all four units in the file cabinet, he changed his mind because he decided to take his video camera home and the video camera and the four GPS units would not all fit in the file cabinet. He testified that he left one GPS unit, a Magellan brand, and the video camera in the file cabinet and put the others in his briefcase and the Target bag. Appellant also explained that he could not have removed Target's GPS units from the locking magnetic peg hooks without the magnetic key and that the magnetic key was kept in a lockbox at guest services. He said one of the surveillance cameras should have shown him walking to guest services if it had happened. Additionally, appellant testified that the GPS area of the store had two cameras, one of which was working the night he allegedly stole the units, yet there was no recording of him entering the GPS area. In explaining the recording that showed him removing a package from his waistband, appellant said he found an opened computer game in the stockroom with a disc missing. He tucked it into his waistband so that the person who stole it would not see that he had found it because, if that happened, "the investigation would be over." After his shift was over, he put the opened computer package in the store's empty-package bin. Appellant's brother, Brandon Manis, testified that he saw four GPS units at appellant's house the week before January 27, 2007. The four units were three different brands: two were Magellan, one was TomTom, and one was another brand. All were unopened in their packages. He said appellant got them from appellant's friend. Brandon testified that he and a friend were going to each buy a GPS unit from appellant, but appellant first wanted to take them to work to compare them to the ones Target sells. Brandon said the photographs of the units from Target looked similar to the ones he saw at appellant's house. He also testified that he did ultimately purchase a Magellan brand unit from appellant and that he thought it was a "knockoff" because he had to constantly reset it. Appellant presented evidence of Douglas's and Berticelli's biases against him. Decker testified that Berticelli tried to get him to change an entry on some paperwork. Decker testified that if he had made the change, appellant would have gotten into trouble for a mistake Decker made. Decker refused to make the change. At the time, Decker thought there was a "personal disagreement" between appellant and Berticelli. Later, when Decker learned that appellant had been interviewed, he thought it was "pretty evident . . . that they looked for anything and everything on [appellant]." Decker was told that if he had any further conversations with appellant, even outside of work, he could lose his job. Sometime later, Berticelli fired Decker. Berticelli told Decker that Decker's position was being eliminated, but he also told Decker that he did not trust him and that Decker had gone as far as he would go in Target. Decker thought he was fired because of his friendship with appellant. Additionally, through cross-examination of Douglas, appellant showed that Douglas questioned whether appellant cared about the suggestions Douglas had given him for working up shoplifting cases. Douglas told Berticelli that he did not think appellant "was responsive to my feedback." Appellant presented favorable character evidence through his brother and Decker. He presented evidence that he joined the Air Force after high school, graduated at the top of his class in the security force academy, was assigned to an antiterrorism group to carry out top secret missions for the government, and received a purple heart and a bronze star. The evidence also showed that appellant's father worked for the Dallas Police Department.