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McClendon v State13 S.W.3d 406March 8, 2000 No. 795-99 IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. 795-99 DARLENE MCCLENDON, Appellant v. THE STATE OF TEXAS ON STATES PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTEENTHTH COURT OF APPEALS HARRIS COUNTY Keasler, J., delivered the unanimous opinion of the Court. O P I N I O N Darlene McClendon twice walked into the Snack Shack and Meat Market with someone elses food stamp cards. She charged a total of $214 to the victims cards, but only got $160 cash back. Is this evidence sufficient to prove that she obtained a value of $200 or more? We conclude that it is. Facts In the fall of 1996, the Houston Police Department and the Texas Department of Human Services began an investigation into the illegal use of Electronic Benefit Transfer (EBT) cards at a convenience store in Houston. At the Snack Shack and Meat Market, Officer Loan Truong acted as a cashier in order to monitor the use of the EBT cards. On December 3, 1996, McClendon entered the Snack Shack and unlawfully used Stephanie Earls EBT card to receive $110 cash. Officer Truong deducted a total amount of $147 from Earls card and gave McClendon $110 in cash. The record reflects that a 25% mark-up or discount rate was the standard fee for illegally obtaining cash through the use of an EBT card in Harris County. Two days later, McClendon conducted a similar transaction for $50 cash. This time, she unlawfully used Mary McClendons card and, after calculating the mark-up as before, Officer Truong deducted $67 from the victims card. Procedural History McClendon was found guilty of the illegal use, redemption and transfer of food stamp benefits for a total value of over $200.1 She raised four points of error on appeal. The Fourteenth Court of Appeals reversed the conviction based on her second point of error challenging the sufficiency of the evidence.2 We granted the States petition for discretionary review. It contends that the Court of Appeals erred in holding that the value McClendon obtained is limited to the cash value she received. Analysis When reviewing the legal sufficiency of the evidence, we look at 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 crime beyond a reasonable doubt.3 The State argues that McClendon is guilty of a felony charge because, although she only received $160 in cash, she obtained an exchange value greater than $200. McClendon responds that the value she received was less than $200, so she was guilty, at most, of a misdemeanor. Texas Human Resource Code §33.011 provides, in relevant parts, as follows:
The Court of Appeals held that under the statutory definition of value, [McClendon] only obtained $160.4 The Court erred because it only looked to the cash amount that McClendon received. It is true that McClendon only obtained $160 in cash. But with the mark-up, the total value she obtained was $214. If McClendon had paid the $54 mark-up out of her own pocket and not charged it to the EBT cards, she would have only obtained a value of $160. But since she charged the discount rate to the victims cards, McClendon received an additional benefit of $54. The $54 charged to the cards was $54 that McClendon saved. The mark-up was a necessary component of the exchange value obtained. In other words, the phrase exchange value obtained includes the loss to the State or the victim. In this case, that loss includes the fees charged for illegally providing cash instead of food. McClendon argues that Abu-Ein v. State5 supports the Court of Appeals conclusion. But as the State points out, Abu-Ein is inapposite to the instant case. In Abu-Ein, the defendant received a book of food stamp coupons, not cash. There was no evidence of any mark-up charged to anyone else. Here, McClendon received $160 in cash, and she received the additional benefit of the $54 which she charged to the victims cards. The total exchange value McClendon obtained was $214. Conclusion Because we find that the value obtained by McClendon was $214, we conclude the evidence was legally sufficient to convict. We reverse the decision of the Court of Appeals and remand this case to that Court to consider McClendons remaining points of error. DATE DELIVERED: March 8, 2000 PUBLISH
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