Rodgers v. State

608 S.W.3d 506

Fred Loualex RODGERS, Appellant

v.The STATE of Texas, Appellee

NO. 01-19-00181-CR

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued August 25, 2020

Cary M. Faden, 54 Sugar Creek Center Blvd., Ste. 200, Sugar Land, Texas 77478, for Appellant.

Brian Middleton, District Attorney, Fort Bend County, Texas, Jason Bennyhoff, 301 Jackson St., Rm. 101, Richmond, Texas 77469, for Appellee.

Panel consists of Justices Keyes, Kelly, and Landau.

Evelyn V. Keyes, Justice

A jury convicted appellant, Fred Loualex Rodgers, of the Class B misdemeanor offense of theft of property valued between $100 and $750.¹ Pursuant to an agreement between the parties, the trial court assessed appellant's punishment at fifty-nine days' confinement. In two issues, appellant contends that (1) the State failed to present sufficient evidence that he was guilty of the offense of theft because he did not leave the store and therefore did not deprive the owner of use and enjoyment of the property, and (2) the trial court abused its discretion by denying his motion to quash the information because it did not specifically describe the property that he was alleged to have stolen.

We affirm.

Background

The State charged appellant by information with the Class B misdemeanor offense of theft of property valued between $100 and $750. The information stated:

Comes now the undersigned Assistant District Attorney of Fort Bend County, Texas, on behalf of the State of Texas, and presents in and to the County Court of Fort Bend County, Texas, that in Fort Bend County, Texas, FRED LOUALEX RODGERS, hereafter styled the Defendant, heretofore on or about November 13, 2018, did then and there unlawfully appropriate property, to wit: food items, gloves, and tools of the value of $100 or more but less than $750 from Walmart or Christopher Caston, the owner thereof, without the effective consent of the said owner and with the intent to deprive the owner of the property.

On January 2, 2019, shortly before trial, appellant moved to quash the information, alleging that the information did not provide him with sufficient notice such that he could form a defense. Specifically, he argued that the information alleged that he stole "food items, gloves, and tools" from Wal-Mart, but Wal-Mart "has all kinds of food items, gloves and tools in its possession." He argued:

The Defendant has no way of knowing what food items, gloves, or tools he is accused of stealing, and therefore, cannot prepare an adequate defense. It could even be possible that different food items are alleged as stolen, some in the same cart, some paid for and some allegedly stolen. If the information is allowed to stand as worded, the Defendant has no way of knowing what property he is accused of stealing, and therefore, has no way of protecting himself against double jeopardy. If he is found not guilty of some items, the State could merely re-file for other items, without ever identifying which items each specific charge is accusing him of stealing, thereby allowing the State to file the same charge again and again in violation of his double jeopardy rights, claiming they are charging for different items, or even the same items.

He requested that the trial court set aside the information.

The trial court held a pre-trial hearing on appellant's motion to quash the information. Appellant argued that the language on the face of the information was too vague, noting that he had a shopping cart full of items at the Wal-Mart, and not all of the items in his cart were alleged to have been stolen, but the indictment did not specify which ones were alleged to have been stolen. The State argued that the language in the information was specific enough to allege the stolen property, but it also argued that, even if the language was not sufficiently specific, appellant had adequate notice of what he was alleged to have stolen because the State provided him the offense report and various surveillance videos which depicted the allegedly stolen property and the property that appellant paid for at the Wal-Mart. Defense counsel agreed that he had received the offense report and surveillance videos, but he argued that the trial court could only consider the allegations on the face of the information and could not look to extrinsic evidence in determining the sufficiency of the information. The trial court denied appellant's motion to quash the information.

At trial, Patrick Morris testified that he was working as an asset protection associate at a Wal-Mart store in Stafford, Texas, on November 13, 2018. Morris observed a customer, later identified as appellant, in the automotive department of the store with a shopping cart full of merchandise, a backpack, and Wal-Mart bags resting on top of the cart. Appellant was with another man, who also had a shopping cart full of merchandise. Morris saw appellant select two gloves, rip them apart so that the tags—with the barcodes used to scan the items for purchase—fell on the floor, and place the gloves on top of his cart. Morris collected the discarded tags and followed appellant to the seasonal department. Appellant and his companion took Wal-Mart shopping bags from their backpack and started putting merchandise into the shopping bags.

Appellant did the same thing in the home décor section and in the men's wear section of the store before he went to the self-checkout area and met up with a woman. In the self-checkout area, Morris saw appellant scan and purchase some of the merchandise that was in his shopping cart, but he did not scan the merchandise that was concealed in the Wal-Mart bags. The trial court admitted a surveillance video from the Wal-Mart. Morris testified that the video showed appellant selecting a pair of gloves, breaking the tag off, and placing the gloves in his cart. This video did not show appellant at the self-checkout area.

Appellant and his two companions walked to the exit of the store, but after they passed the door greeter, Morris approached them with another asset protection associate, Christopher Caston. Morris asked all three of them to come with him and Caston to their office, where the associates looked over the receipts and the barcodes on each item in the respective shopping carts to determine what had been paid for and what had not. Morris and Caston determined that all of the items in the woman's shopping cart had been paid for. When they looked through appellant's cart, the associates did not find any gloves in the Wal-Mart bags; instead, they found the gloves in the backpack that appellant had been carrying with him.

Once Morris and Caston determined which items in appellant's cart had not been purchased, they took those items to Wal-Mart's service counter and had a separate receipt made up for these items so they could determine the price of the merchandise that had not been purchased. Morris testified that this receipt contained "a lot of items," and that the items were "food stuff mostly," plus a tool set and four pairs of gloves. The receipts listed each item and listed the total amount of the items, but the receipts did not list the prices of each specific item.² The merchandise appellant had concealed in the Wal-Mart bags and in his backpack totaled $244.99.

Christopher Caston testified that he became involved when appellant was still at the self-checkout register finalizing the purchase of some of the items in his cart. Caston and Morris waited until appellant and his companions were at the exit to the store before they approached, introduced themselves, and explained why they were stopping the group. Caston asked if anyone in the group had any unpaid merchandise and "[t]hey did admit to having merchandise that was unpaid for." He and Morris then escorted the three individuals to the loss prevention office "for recovery and identification." Caston stated that he and Morris determined, after comparing the items in the shopping cart and backpack to the items on the receipt appellant obtained after making his purchases, that appellant had over forty items of unpaid merchandise in his possession.

Stafford Police Department Officer R. Graves was dispatched to the Wal-Mart, and he made contact with appellant, who was not cooperative and provided a false name.³ Officer Graves was wearing a body camera while he interacted with appellant, and the trial court admitted a recording of the footage from this camera. Graves testified that Morris and Caston were visible on the body cam video searching through the items that had been in appellant's possession, determining which had been paid for and which had not, and separating the items into piles based on whether appellant had paid for the items. Morris and Caston did not immediately find the gloves that Morris had seen appellant place in his cart. On the body camera video, Graves told appellant, after he had read appellant the Miranda warnings, "I'm going to find it anyway, if you tell me now, I'll know." Appellant told Graves that he would find some gloves, and Graves pulled four pairs of gloves out of appellant's backpack. Graves testified that Morris and Caston provided him with two itemized receipts detailing the items that appellant did not pay for.

The jury found appellant guilty of the Class B misdemeanor offense of theft of property valued between $100 and $750. After the parties reached an agreement concerning appellant's punishment, the trial court sentenced appellant to fifty-nine days' confinement with credit for fifty-nine days served. Appellant filed a motion for new trial, which was overruled by operation of law. This appeal followed.

Sufficiency of the Evidence

In his first issue, appellant contends that the State failed to present sufficient evidence that he committed theft. Specifically, appellant argues that the State did not present sufficient evidence that he appropriated property or deprived the owner—Wal-Mart—of use and enjoyment of the property because there was no...