McCutcheon v. State

Do Not Publish - Tex.R.App.P. 47.2(b).

On Appeal from the 212th District Court Galveston County, Texas Trial Court Cause No. 18-CR-0917

Panel consists of Justices Jewell, Spain, and Wilson (Spain, J., concurs without opinion).

MEMORANDUM OPINION

Randy Wilson, Justice

Appellant Brittany Cnae McCutcheon appeals her conviction for engaging in organized criminal activity by committing the underlying offense of fraudulent possession of fifty or more items of identifying information, in combination with others. Appellant asserts that she received ineffective assistance of counsel. We affirm.

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I. Factual and Procedural Background

Some retail stores like Kohl's permit a person to make purchases using a store credit card even when the customer leaves the card behind. It's an old-fashioned convenience that pre-dates Apple Pay. With a customer's social security number and driver's license as proof, the store will look up and verify a customer's store credit card account and charge the customer as if they had the card with them. This is how appellant purchased a Bulova watch at the League City Kohl's.

And while appellant was permitted to make the transaction, she was "red-flagged" because, in the course of the process, she presented an out of state license. The cost of the item, the out-of-state license, and the fact that appellant had to consult her phone to recite her own social security number prompted the jewelry department supervisor, Lacy Brychta, to question the transaction and alert loss prevention.

After the store was alerted of possible suspicious activity, appellant was monitored and observed to then go purchase a $500 gift card from another register. When David Ruiz, Kohl's asset protection manager, was alerted to observe appellant from the monitors in the loss prevention office, he recognized appellant as a person identified in a BOLO (be on the lookout) notice he had received a week earlier. He noticed two other individuals with appellant, but they disappeared as she went to the back of the store. Ruiz noticed the group talked amongst themselves before the other two left. Ruiz called the police.

Officer Michael Guzman of the League City Police Department responded to the call of a potential fraud in progress. He met with Ruiz and another store employee at the front entrance and was advised appellant was still in the store.

When Guzman approached appellant and asked for her ID, she retrieved a

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small purse and thumbed through the purse, revealing several different IDs from different states, before providing her Texas ID. Guzman ran the Texas ID through dispatch and confirmed several active warrants on appellant. Appellant identified herself as Brittany McCutcheon.

Guzman placed appellant in handcuffs and led her to the loss prevention office. Guzman arrested appellant, and believes that he read appellant her Miranda rights, but could not be sure. He said generally, when he handcuffs someone, he reads them Miranda rights immediately, but he could not remember this particular occasion. Guzman said appellant made no statement. Ruiz confirmed that appellant remained silent while in the office. Ruiz testified that he thought the officer read the appellant her Miranda rights when they were in the office, but agreed that appellant already had handcuffs on when Guzman brought her back to the office. The Police Department did not retain the body cam footage and Kohl's did not retain its surveillance footage from the day of the incident.

Guzman said he searched her purse incident to arrest and found two fictitious state IDs that contained appellant's face and someone else's name and date of birth. Additionally, Guzman found a $200 Kohl's gift card and a blank VISA card in the name of "William Law". Believing that more information was contained on appellant's cell phone, Guzman seized the cell phone and placed it into evidence, pending a search warrant.

On March 22, 2018, appellant was indicted for the offense of engaging in organized criminal activity, namely fraudulent possession of identifying information.

When cross examined by appellant's counsel at trial, Guzman agreed that he obtained appellant's phone passcode subsequent to her arrest, but only at appellant's request so she could get some telephone numbers. Guzman stated he

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never searched the phone until after obtaining a warrant. Guzman said the date of the search warrant was eleven days after her arrest. Guzman explained that he performed the entire task of retrieving those numbers for appellant in her presence before shutting off the phone and placing it back in the loss prevention bag and that this was his only contact with the phone prior to the execution of the warrant.

The evidence and forensic manager with the League City Police Department testified that after a search warrant was issued for the phone's data, he used a forensic tool to extract call records, text messages, chat messages, images, websites visited on the phone, as well as contact names and numbers.

Through the officers' testimony, significant information was obtained from the phone and offered into evidence in support of the State's case. As conveyed through Guzman, the phone informed that

• Appellant would purchase and receive personal identifying information from the dark web

• Through various people like Latasha Krauth, appellant would send the identifying information to others and get physical IDs made with appellant's picture and someone else's name, date of birth and social security number

• Appellant and others would purchase merchandise and sell it at a discount. Appellant was involved with other participants which included Latasha Krauth, a male named Eric, a woman named Ma, a woman named Puney, and a man named Shake

• Latasha was acting as a look-out for appellant at Kohls. Appellant and Latasha texted each other throughout the transaction at Kohls and those text messages were recovered

• Latasha and appellant passed texts, sharing different names, dates of birth, addresses, credit card numbers, expiration dates, security codes, phone numbers and social security numbers.

• Eric, appellant's brother, made fraudulent purchases and provided appellant the merchandise to off load and sell at a

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discounted price. Eric procured physical IDs and provided them to appellant and Latasha. Eric also received proceeds and money from the illicit activities.

• Shake was a facilitator for the gift cards and some merchandise, converting it into cash. Shake employed others that returned merchandise to retailers and received cash back. Guzman referred to these people as "returners," according to the text messages.

• The money flowed from appellant to Latasha, Shake to appellant, Eric to appellant, and appellant to her mother.

The State's investigator testified that she was provided information on all the names, dates of birth, social security numbers, driver's license, and addresses extracted from appellant's phone in this case. She said that she ran each name and verified that the names and addresses matched; that they were real people and had real social security numbers. Three of these people testified at trial. Each testified that their names, dates of birth, social security numbers, and driver's licenses matched the information contained on appellant's phone. Each testified that they did not know appellant or grant her permission to use their respective identifying information.

The first issue in this appeal concerns the State's trial counsel's closing argument. While explaining the legal standard for finding a "Combination" which the charge states means "three or more person who collaborate carrying on criminal activities" he made the following comment:

That's why this is an engaging case. She's working with Tasha, Ma and Eric and Puney and Shake and the way the offense is worded it has to be the defendant working with two or more other people. But you as a jury you don't all have to agree on who the three people were. You have to agree there were at least three people involved in this criminal organization. So jurors #1 and #2 may believe this operation was primarily the defendant, Tasha and Eric. And juror #12

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may believe the operation was mainly the defendant, Shake and Ma. That's fine. Many of you believe like I do, that all six of these people were involved. They were absolutely involved. As the charge will instruct you, the law doesn't require that all members of the organization know each other or work directly with each other….

Appellant's trial counsel did not object to the bolded comment. The second issue in the case concerns appellant's trial counsel's own comments in closing argument:

One, there is an issue of Miranda which is always questionable for us as attorneys as far as if you read Miranda rights versus not reading it. If he took her purse and took her phone before she was actually placed in custody. Of course, all we have is his word. We don't have any video which would be helpful. All we have is his word. So you know it's our contention there may be some issues within a reasonable search and seizure.

In the State's concluding arguments it glossed appellant's trial counsel's Miranda-related arguments as a non-issue merely raised to confuse the jury. He explained, "You heard from Officer Guzman multiple times; [appellant] did not make a statement."

The jury found appellant guilty of the offense of engaging in organized criminal activity as charged in the indictment.

During punishment, the State presented evidence of ten prior convictions, including one that enhanced the punishment. Appellant pled true to the...