OPINION
Appellant was charged with theft of more than $500 and less than $1,500. The jury returned a guilty verdict, imposed a fine, assessed restitution, and sentenced her to “probation of sentence for one year.”
In two issues, she challenges the sufficiency of the evidence, prosecutorial misconduct, improper opinion testimony, and ineffective assistance of counsel. For the reasons that follow, we affirm.
FACTUAL SUMMARY
Rosa Morales worked for the Presidio County tax office. At approximately 11:45 a.m. on July 21, 2011, Appellant came to the office with her daughter and her niece, bypassed the payment window, and greeted Morales at her desk. Morales spent ten or fifteen minutes assisting Appellant with a title transfer. A co-worker indicated that it was time to go to lunch and locked the office door. Appellant paid Morales for the registration.
Morales explained to the jury that when the cash register opens, she customarily places money she receives on top of it, closes the drawer, determines the amount of change due, opens the cash register
When Morales reported the money stolen, Sheriff Danny Dominguez contacted Texas Ranger Jeffrey Vajdos to assist him as the matter was a potential public corruption case. Morales and Appellant became the focus of the investigation as they were the only persons who had the opportunity to commit the theft.
Morales gave a written statement on August 16, 2011, but Ranger Vajdos was not present. Noting that the statement lacked details, Vajdos decided to interview Morales himself. Despite his thorough and harsh one-hour interview, Morales adamantly denied any involvement in the theft, was consistent in her statements, never wavered in her descriptions of what had occurred, and expressed remorse for violating office policies and allowing the theft to occur. Vajdos was not concerned that Morales did not look for the money in the register before leaving for lunch. He recalled that her lunch companion did not learn about the missing money until the following week. He thought it reasonable that Morales had not reported the money missing until later in the day after she had exercised due diligence. He did not believe Morales was motivated to commit theft because the tax office had a policy that would have required Morales to repay any missing sums and he was aware that Morales was paying back the money pursuant to the policy. He did find it odd that Rodriguez was collecting the money Morales was repaying but was not providing receipts to Morales or writing down the amounts paid. Instead, she simply noted the amount Morales owed. Vajdos did not obtain another statement from Morales, and could only speculate as to why Morales was repaying the county when she should have been repaying her son.
Ranger Vajdos and Sheriff Dominguez interviewed Appellant at her home in March 2012, and created an audio recording of the 27-minute interview. Appellant gave the officers the receipts she had received when she paid the $557.63 for the vehicle registrations. She explained that the following day, a tax employee contacted her to say that Morales had accused her of theft. Appellant had gone to the tax office to confront Morales but the issue was not resolved. At this stage of the investigation, Vajdos considered Appellant’s explanations plausible.
Vajdos and Texas Department of Public Safety Trooper Gus Trevino conducted a second interview with Appellant on May 23, 2012. Appellant was not forcibly detained. Initially, Trevino did not ask for a
I don’t know what happened. The only thing I can say is, I’m sorry. I’m willing to pay the money and clear up this issue. By accident—as an accident of the money, I don’t remember what happened, if it was in the paperwork by accident and I took the money. The amount was $570. [00]. It was from the office of Rosa Morales.
Trevino denied that he forced Appellant to write a statement or instructed her regarding the contents, but he acknowledged that Appellant did not expressly state, “I took the money.”
Appellant testified in her own defense. At approximately 11:45 a.m. on July 21, 2011, she went to the tax office accompanied by her daughter and her niece. She waited for Morales to finish assisting other customers, and when Morales summoned her to “[c]ome on back[,]” she entered and sat in Morales’ desk area. She informed Morales that she was there to complete papers regarding a recreational vehicle. Morales finished a telephone call before assisting Appellant. She processed the transaction and told Appellant the fee would be $557.63. Appellant tendered either $570 or $580 and Morales placed the money on top of the cash register. She gave Appellant her change and a receipt for the payment, instructed Appellant to review everything for accuracy, and closed the cash register drawer. Appellant testified that she did not take the money, and did not see what Morales did with the money because she was quickly reviewing the paperwork to ensure no changes were necessary since Morales was in a hurry to leave for lunch. When Appellant informed Morales that the information was correct, Morales stated, “Okay. Well, I have to go. I’m running late.” Morales then accompanied Appellant and the girls to the door, and they left. According to Appellant, Morales never mentioned the missing money.
The following day, another tax office employee, Alma Carrasco, called Appellant and told her that Morales alleged that the exact amount of money Appellant had paid was missing from the cash register drawer. Appellant said that was impossible because Morales had given her change and receipts. When Appellant asked why Morales had waited to tell her the money was missing, Carrasco replied that Morales wanted to see if Appellant had a conscience and would return it. Carrasco also suggested that one of the girls may have taken the money.
Appellant then went to the tax office, politely confronted Morales, and told her that she wanted to address her “face-to-face, completely honestly ... about what happened and to clear up the situation.” Morales would not listen to her. Appellant introduced herself to Norma Arroyo and asked why she had not been stopped immediately regarding the missing money, to which Arroyo replied, “I don’t know. All I know is that you stole the money. You took the money.”
Appellant returned home and within an hour, Deputy Sheriff Marco Baeza took her written statement. Appellant explained that she did not understand why she was given change and a receipt and then was allowed to leave the tax office if something was wrong. Several months later, Ranger
SUFFICIENCY OF THE EVIDENCE
We begin with Appellant’s second issue in which she challenges the sufficiency of the evidence to support her theft conviction. We address a challenge to the legal sufficiency of the evidence by considering all the evidence in the light most favorable to the verdict, and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Brooks v. State,
When conducting a sufficiency review, we consider both direct and circumstantial evidence and all reasonable inferences that may be drawn from the evidence. Hooper v. State,
Due process requires that the State prove, beyond a reasonable doubt, every element of the crime charged. Byrd v. State,
When an indictment alleges theft in the most general of statutory terms, the hypothetically correct jury charge embraces any and every statutorily defined alternative method of committing the offense that was fairly raised by the evidence. Taylor v. State,
An “owner” is defined as a person who 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 is a holder in due course of a negotiable instrument. Tex. Penal Code Ann. §§ 1.07(a)(35)(A), (B)(West Supp. 2016); Byrd,
A person commits theft if she “unlawfully appropriates property with intent to deprive the owner of property.”
Appropriation of property is unlawful if it is without the owner’s effective consent. Tex. Penal Code Ann. § 31.03(b)(l)(West Supp. 2016). “Effective consent” includes
(A) creating or confirming by words or conduct a false impression of law or fact that is likely to affect the judgment of another in the transaction, and that the actor does not believe to be true;
(B) failing to correct a false impression of law or fact that is likely to affect the judgment of another in the transaction, that the actor previously created or confirmed by words or conduct, and that the actor does not now believe to be true;
(C) preventing another from acquiring information likely to affect his judgment in the transaction;
(D) selling or otherwise transferring or encumbering property without disclosing a lien, security interest, adverse claim, or other legal impediment to the enjoyment of the property, whether the lien, security interest, claim, or impediment is or is not valid, or is or is not a matter of official record; or
(E) promising performance that is likely to affect the judgment of another in the transaction and that the actor does not intend to perform or knows will not be performed, except that failure to perform the promise in issue without other evidence of intent or knowledge is not sufficient proof that the actor did not intend to perform or knew the promise would not be performed. Tex. Penal Code Ann. §§ ■ 31.01(l)(A-E)(West Supp. 2016).
Viewing the evidence in the light most favorable to the verdict, we must determine whether any rational trier of fact could have found the essential elements of the offense of theft as so defined to a level of confidence beyond a reasonable doubt. Taylor,
Deferring to the jury’s assignment of witness credibility, weighing the conflicting evidence, resolving conflicting inferences, and considering all the evidence in the light most favorable to the verdict, we conclude a rational juror could have found beyond á reasonable doubt the essential elements of the theft offense under a hypothetically correct jury charge. Jackson,
DUE PROCESS COMPLAINTS
In her first issue, Appellant complains that she was denied a fair trial in violation of her due process rights. Within this issue, she presents sub-issues concerning improper comments by the prosecutor, witness opinion testimony regarding Appellant’s guilt, and defense counsel’s courtroom behavior and performance.
It has long been recognized that under the Due Process Clause of the Fourteenth Amendment, all persons are presumed innocent, and no person may be convicted unless each element of the offense is proved by the prosecution beyond a reasonable doubt. U.S. Const. amend. XIV; In re Winship,
Waiver
As an initial matter, we must decide whether Appellant has preserved error. To preserve error, the complaining party-must inform the trial judge as to what she wants and why she thinks she is entitled to it. She must do so clearly enough for the judge to understand the issue and at a time when the trial court is in a position to do something about it. Chase v. State,
Where the legal basis of a trial objection differs from that on appeal, the issue is not preserved for our consideration. See Lovill v. State,
Prosecutorial Misconduct
Appellant contends that during opening statement, the prosecutor improperly informed the jury of his opinion that Appellant had befriended Morales “in an attempt that I believe was to—was to eventually take advantage of her the way she probably does many people.” This was followed by the State’s comment that he was very proud of Morales. The State counters that Appellant waived error by failing to object.
Prosecutorial misconduct is an independent basis for objection that must be specifically urged to preserve error. Hajjar v. State,
The trial court instructed the jury that opening statements are not evidence but are provided to aid the jury “in obtaining a general understanding of the nature of the case and the significance of the evidence as perceived by the State.” Appellant failed to object to the prosecutor’s opening comments and failed to offer pros-ecutorial misconduct as a basis for seeking a mistrial. Appellant counters that the State’s comment was so prejudicial as to be incurable by instruction. Prosecutorial misconduct must be serious and continu-
Witness Opinion
Appellant next complains that Ranger Vajdos’ opinion invaded the province of the jury, and thus denied her due process of law. We agree that the testimony was improperly admitted, but conclude the non-constitutional error did not have a substantial and injurious effect or influence the jury’s verdict.
During direct examination, the State asked Ranger Vajdos about Appellant’s statement and the conditions under which it was made. He explained that he did not speak Spanish but was present when the statement was given, and could speak regarding Appellant’s demeanor as well as Trooper Trevino’s translation during the interview. The State asked Vajdos if it was his opinion that Appellant was always free to leave because she was providing a voluntary statement. Defense counsel objected, and renewed his previous objection made outside the presence of the jury that any reference to Appellant’s statement should not be before the jury. The trial court overruled the objection, and the State continued to ask questions regarding Appellant’s freedom to leave during the interview. The following colloquy occurred:
THE STATE: And obviously that’s about as much as we can go into in the statement with you. Throughout the course of an investigation, is it fair to say that you build an opinion?
(DEFENSE COUNSEL): Objection, Judge. I object to the State trying to extract an opinion from the witness as to—as to who, if anyone, committed a theft in this case. Objection.
THE STATE: That’s his job. He’s a police officer.
THE COURT: Objection overruled.
The State then asked Vajdos to describe the method of reaching a conclusion regarding a crime. He responded that during the course of the investigation, the goal is to seek and obtain evidence, and that during the investigation of this case, the evidence led officers to obtain an arrest warrant for Appellant for the theft of $570. The colloquy continued:
THE STATE: Do you ask for arrest warrants for people you believe are innocent?
RANGER VAJDOS: Never.
THE STATE: Okay. And would it be safe to say that you base the request for... an arrest warrant on consideration of motive?
RANGER VAJDOS: Everything that I do is based off of the evidence!.]
Vajdos explained that a decision to request an arrest warrant is based on consideration of evidence, probable cause, motive, the facts of the case, interviews with defendants, and looking at the totality of the circumstances. The State continued:
THE STATE: Would that entail an admission by the defendant?
RANGER VAJDOS: Yes.
THE STATE: Officer Vajdos, I hope you don’t take offense to me calling you Jeff over and over. I need you to give me an opinion. I need you to tell me what your opinion is of—as to who took the money from the Clerk’s Office (sic).
(DEFENSE COUNSEL): Objection, Judge. Objection to the State eliciting an opinion as to who took—again, who took the money in this case, whether it’s Ms. Viscaino or anyone else. I object again.
THE COURT: Objection overruled.
RANGER VAJDOS: Based on all the evidence we obtained during the course of the investigation and the confession statement from Elizabeth Viscaino, we obtained the arrest warrant because Elizabeth Viscaino stole the money.
THE STATE: How sure are you?
RANGER VAJDOS: I’m positive she stole the money.
THE STATE: One hundred percent?
RANGER VAJDOS: A hundred percent.
A lay witness may offer opinion testimony if the opinion is (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness’s testimony or the determination of a fact issue in the case. Tex. R. Evid. 701; Ex parte Nailor,
The Court of Criminal Appeals has held that the perception requirement of Rule 701 is consistent with the personal knowledge requirement of Rule 602. Fairow v. State,
The State’s question was improper, and the trial court erred in overruling Appellant’s objection. See Fairow,
Admission of improper opinion testimony is error of non-constitutional dimension. See Wilson v. State,
After examining the record of appellant’s trial as a whole, we have fair assurance that the error did not have a substantial and injurious effect or influence in determining the jury’s verdict. First, Appellant’s handwritten statement was admitted into evidence during the State’s case-in-chief. Second, Appellant testified at trial. Consequently, the jury heard testimony from the only two parties to the tax-office transaction, Appellant and Morales, and it was able to assess their credibility as well as weigh and resolve the conflicting testimony given by each. Third, during closing argument, the State made no reference to Vajdos’ opinion of Appellant’s guilt. We therefore conclude that the admission of Vajdos’ opinion was error that we must disregard. Tex. R. App. P. 44.2(b).
Ineffective Assistance of Counsel
Appellant next complains that defense counsel’s conduct resulted in a loss of credibility with the jury and resulted in ineffective assistance at trial. Because the record is inadequate to support her contentions, we disagree.
We review claims of ineffective assistance of counsel claims under the two-pronged test established in Strickland v. Washington,
Our review of counsel’s performance is highly deferential and presumes that counsel’s actions fell within a wide range of reasonable professional assistance. Mallett,
In part because of the need to ascertain trial counsel’s strategy, courts have long recognized that the record on direct appeal is generally insufficient to show that counsel’s performance was deficient under Strickland. Id. at 813. In the majority of instances, the record on direct appeal is “simply undeveloped” and cannot adequately reflect trial counsel’s failings or explain counsel’s trial strategy, upon which counsel’s decisions may have been based. Id. at 813-14. In a rare case, we may address and dispose of the claim on direct appeal if counsel’s ineffectiveness is apparent from the record. Robinson v. State,
We initially observe that Appellant has affixed to her brief the affidavits of persons who were present during trial. These affidavits were not presented in a bill of exception nor filed in support of Appellant’s motion for new trial, nor was this issue raised in the motion for new trial. Simply stated, the documents appended to Appellant’s brief are not contained in the record on appeal. Tex. R. App. P. 34.2, 34.5(a), 34.6.
We cannot consider documents attached to a brief as an exhibit or appendix which are not a part of the appellate record. See Whitehead v. State,
Appellant complains of trial counsel’s behavior regarding the State’s failure to state in the jury’s presence that it had rested its case. The record shows that trial counsel initially sought to remove the jury for the purpose of moving for an instructed verdict but was hesitant to do so because the State had failed to specify in the jury’s presence that it had rested. Outside the presence of the jury, counsel explained his concern. The trial court reconvened the jury, the State rested its case in the jury’s presence, the jury was again removed, and trial counsel proceeded to move for instructed verdict. Additionally, Appellant is dissatisfied with counsel’s conduct in objecting to the adequacy of the jury charge and the bases offered in support thereof, which occurred in the jury’s absence. She next decries counsel’s tactics in cross-examining Ranger Vajdos regarding statements made by Morales, Norma Arroyo, and Annabel Rodriguez because they were suspect and would have presumably been barred as hearsay. Tex. R. Evid. 802. In her view, the nature of counsel’s questioning in general “reveals no discernable valid strategy,” and counsel’s attempt to object to the absence of the State’s subpoenaed witness was deficient because he failed to explain the material and favorable nature of the witness’s testimony.
We disagree that this is an unusual case where all the information needed to determine that ineffective representation is present in the record. Although the record clearly reflects the existence of a conten
TRIAL COURT’S CERTIFICATION OF APPELLANT’S RIGHT TO APPEAL
The record does not indicate that Appellant was informed of her rights to file a pro se petition for discretionary review with the Texas Court of Criminal Appeals. See Tex. R. App. P. 25.2(d). To remedy this defect, we ORDER Appellant’s attorney, pursuant to Tex. R. App. P. 48.4, to send Appellant a copy of this opinion and judgment, to notify Appellant of her right to file a pro se petition for discretionary review, and to inform Appellant of the applicable deadlines. See Tex. R. App. P. 48.4, 68. Appellant’s attorney is further ORDERED, to comply with all of the requirements of Tex. R. App. P. 48.4.
Hughes, J., not participating
Notes
. “Steal” means to acquire property or service by theft. Tex. Penal Code Ann. § 31.01(7)(West Supp. 2016). An "actor” is defined as a person whose criminal responsi-bilily is in issue in a criminal action. Whenever the term “suspect” is used in the Penal Code, it means "actor.” Tex Penal Code Ann. § 1.07(a)(2)(West Supp. 2016).