Gary Moore v. State ( 2015 )

ACCEPTED
06-14-00056-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
1/16/2015 11:06:27 AM
DEBBIE AUTREY
CLERK
In the
Court of Appeals for the
Sixth District of Texas at Texarkana FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
Gary Moore, § 1/16/2015 11:06:27 AM
Appellant § DEBBIE AUTREY
Clerk
§
v. § No. 06-14-00056-CR
§
The State of Texas, §
Appellee §
Trial Number 296-81210-2013 in the
296th District Court of Collin County
The Honorable John R. Roach, Jr., Judge Presiding
STATE’S BRIEF
Greg Willis
Criminal District Attorney
Collin County, Texas
John R. Rolater, Jr.
Asst. Criminal District Attorney
Chief of the Appellate Division
Oral argument is not requested Emily Johnson-Liu
unless Appellant requests Asst. Criminal District Attorney
argument 2100 Bloomdale Rd., Suite 200
McKinney, TX 75071
(972) 548-4323
FAX (214) 491-4860
State Bar No. 24032600
ejohnson-liu@co.collin.tx.us
Haley Hendrix & Wes Wynne
Asst. Criminal District Attorneys
Table of Contents
Index of Authorities ..................................................................................iv
Statement Regarding Oral Argument ...................................................... 1
Statement of the Case ...............................................................................1
Statement of Facts..................................................................................... 1
Summary of the State’s Arguments .......................................................... 6
Argument & Authorities ...........................................................................8
Issue One (Sufficiency of the Theft Offense) ..........................................8
The evidence is sufficient to establish that
Appellant intended to deprive Wal-Mart of the
property he abandoned just inside the exit
door. Appellant made a deliberate path toward
a deserted exit with several high-end items,
repeatedly looked over his shoulder as he went,
and abandoned his advance toward the exit
only when startled by the sudden appearance of
a police car outside the exit gate.
I. Standard of review ...............................................................................8
II. The circumstantial evidence was sufficient to establish
Appellant intended to deprive Wal-Mart of its property .................... 9
Issues Two and Three (Alleged indictment amendment &
Sufficiency of a jurisdictional prior) ........................................................ 16
Because no actual amendment to the
indictment took place, there was no error
stemming from the trial court’s decision to
permit an amendment over the defense
objection on the day trial began. Even though
i
the indictment was not actually amended, this
did not result in a material variance between
pleading and proof as the prosecutor was
merely trying to alter the name of the
convicting court for one of the jurisdictional
prior convictions alleged in the indictment.
I. Additional relevant facts ................................................................... 16
II. State’s motion to amend .................................................................... 18
A. The indictment was never amended, so there was no
reversible error in granting the State’s motion to amend........... 18
B. Even if the amendment was effective, any error in
permitting the amendment was harmless .................................. 22
III. Sufficiency of the jurisdictional prior in light of the variance
between pleading and proof ............................................................... 23
Issue Four (Sufficiency to prove punishment enhancement
paragraphs).............................................................................................. 27
This Court should not reach Appellant’s
complaint concerning the sufficiency of the
State’s proof of prior convictions alleged for
punishment enhancement because Appellant
waived his right to appeal punishment issues
in exchange for an agreed 5-year sentence. In
any case, there was sufficient proof of two
sequential non-theft felony convictions to
support enhancement to a second-degree
felony.
I. Appellant knowingly waived his right to appeal sentencing
issues .................................................................................................. 27
II. Sufficient evidence supports enhancement to a second-degree
felony .................................................................................................. 31
ii
Issue Five (Details of Appellant’s prior theft convictions) ................... 35
It was not error to inform the jury of the details
of Appellant’s prior theft convictions either
through the State’s evidence of those prior
convictions or in the jury charge. Appellant
pleaded true to the prior theft convictions,
which had the effect of removing that element
from the jury’s consideration. But because
Appellant did not ask the State to forgo
admitting its evidence of his priors in exchange
for his plea of true, he forfeited any complaint
about the admission of that evidence. Any error
in including the details of the prior offense in
the charge was harmless since the jury
properly heard the same facts when the State
read the indictment.
I. The law involving jurisdictional priors ............................................. 35
II. Admission of other evidence of jurisdictional priors ......................... 37
III. Details of prior thefts in the jury charge........................................... 40
Prayer ...................................................................................................... 46
Certificate of Service ............................................................................... 47
Certificate of Compliance ........................................................................ 47
iii
Index of Authorities
Cases
Almanza v. State,
686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh'g) ..................... 44
Arce v. State,
552 S.W.2d 163 (Tex. Crim. App. 1977) ........................................... 24
Baker v. State,
511 S.W.2d 272 (Tex. Crim. App. 1974) ....................................... 9, 10
Barnes v. State,
513 S.W.2d 850 (Tex. Crim. App. 1974) ........................................... 10
Blanco v. State,
18 S.W.3d 218 (Tex. Crim. App. 2000) ....................................... 28, 29
Brooks v. State,
323 S.W.3d 893 (Tex. Crim. App. 2010) ....................................... 8, 13
Brown v. State,
No. 06-11-00127-CR, 2012 WL 899225 (Tex. App.—Texarkana
Mar. 16, 2012, pet. ref'd) (not designated for publication) ............... 25
Bryant v. State,
187 S.W.3d 397 (Tex. Crim. App. 2005) ........................................... 42
Butler v. State,
No. 01-10-00725-CR, 2012 WL 1379628 (Tex. App.—Houston [1st
Dist.] Apr. 19, 2012, no pet.) (not designated for publication) ......... 10
C.L.A. v. State,
478 So. 2d 872 (Fla. Dist. Ct. App. 1985) .......................................... 13
Chambers v. State,
736 S.W.2d 192 (Tex. App.—Dallas 1987, no pet.) ........................... 32
Chandler v. State,
21 S.W.3d 922 (Tex. App.—Houston [14th Dist.] 2000, no pet.) ...... 42
iv
Dukes v. State,
239 S.W.3d 444 (Tex. App.—Dallas 2007, pet. ref'd) ....................... 22
Duncan v. State,
850 S.W.2d 813 (Tex. App.—Houston [14th Dist.] 1993, no pet.) .... 21
Dunn v. State,
08-02-00516-CR, 2004 WL 1858352 (Tex. App.—El Paso Aug. 19,
2004, pet. ref'd) (not designated for publication) ............................. 39
Ex parte Garza,
192 S.W.3d 658 (Tex. App.—Corpus Christi 2006, no pet.) ............. 29
Ex parte Huskins,
176 S.W.3d 818 (Tex. Crim. App. 2005) ........................................... 26
Ex parte Tabor,
565 S.W.2d 945 (Tex. Crim. App. 1978) ........................................... 28
Faris v. State,
No. 06-12-00019-CR, 2012 WL 4459598 (Tex. App.—Texarkana
Sept. 26, 2012, pet. ref'd) (not designated for publication) .............. 29
Faulkner v. State,
402 S.W.3d 507 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd) 28
Foster v. State,
603 S.W.2d 879 (Tex. Crim. App. 1980) ..................................... 32, 34
Freda v. State,
704 S.W.2d 41 (Tex. Crim. App. 1986) ............................................. 24
Freeman v. State,
413 S.W.3d 198(Tex. App.—Houston [14th Dist.] 2013, pet. ref'd) . 43
Fuller v. State,
253 S.W.3d 220 (Tex. Crim. App. 2008) ........................................... 37
Geesa v. State,
820 S.W.2d 154 (Tex. Crim. App. 1991), overruled on other grounds
by Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000) ............ 15
v
Gonzalez v. State,
No. 13-05-115-CR, 2006 WL 488681 (Tex. App.—Corpus Christi
Mar. 2, 2006, no pet.) (not designated for publication) .................... 42
Guevara v. State,
152 S.W.3d 45 (Tex. Crim. App. 2004) ............................................... 9
Harvey v. State,
611 S.W.2d 108 (Tex. Crim. App. 1981) ........................................... 41
Hawkins v. State,
214 S.W.3d 668 (Tex. App.—Waco 2007, no pet.) ............................ 10
Hollen v. State,
117 S.W.3d 798 (Tex. Crim. App. 2003) ........................................... 40
Hollins v. State,
571 S.W.2d 873 (Tex. Crim. App. 1978) ........................................... 24
Illinois v. Wardlow,
528 U.S. 119 (2000) ........................................................................... 14
Jackson v. Virginia,
443 U.S. 307 (1979) ............................................................................. 8
James v. State,
425 S.W.3d 492 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d) ... 22
Lackey v. State,
881 S.W.2d 418 (Tex. App.—Dallas 1994, pet. ref'd) ....................... 33
Marbella v. State,
No. 646-00, 2003 WL 1845140 (Tex. Crim. App. Apr. 9, 2003) (not
designated for publication) ............................................................... 36
Mart. v. State,
200 S.W.3d 635 (Tex. Crim. App. 2006) ..................................... 36, 44
McFarland v. State,
834 S.W.2d 481 (Tex. App.—Corpus Christi 1992, no pet.) ............. 22
vi
Minnamon v. State,
988 S.W.2d 408 (Tex. App.—Houston [1st Dist.] 1999, no pet.) ...... 36
Monreal v. State,
99 S.W.3d 615 (Tex. Crim. App. 2003) ............................................. 28
Nall v. State,
No. 14-06-00345-CR, 2007 WL 2481171 (Tex. App.—Houston [14th
Dist.] Sept. 4, 2007, no pet.) (not designated for publication) ......... 39
Old Chief v. United States,
519 U.S. 172 (1997) ........................................................................... 35
Perez v. State,
429 S.W.3d 639 (Tex. Crim. App. 2014) ..................................... 19, 20
Perez v. State,
885 S.W.2d 568 (Tex. App.—El Paso 1994, no pet.) ......................... 28
Puente v. State,
320 S.W.3d 352 (Tex. Crim. App. 2010) ........................................... 21
Rawlings v. State,
602 S.W.2d 268 (Tex. Crim. App. 1980) ........................................... 31
Riney v. State,
28 S.W.3d 561 (Tex. Crim. App. 2000) ....................................... 19, 20
Robles v. State,
85 S.W.3d 211 (Tex. Crim. App. 2002) ....................................... 38, 39
Rowland v. State,
744 S.W.2d 610 (Tex. Crim. App. 1988) ............................................. 9
Serna v. State,
69 S.W.3d 377 (Tex. App.—El Paso 2002, no pet.) ........................... 21
Smallwood v. State,
827 S.W.2d 34(Tex. App.—Houston [1st Dist.] 1992, pet. ref'd ....... 32
Sodipo v. State,
815 S.W.2d 551 (Tex. Crim. App. 1991) ........................................... 18
vii
State v. Deaton,
438 So. 2d 1218 (La. Ct. App. 1983) .................................................. 12
State v. Murk,
815 S.W.2d 556 (Tex. Crim. App. 1991) ........................................... 18
Tamez v. State,
11 S.W.3d 198 (Tex. Crim. App. 2000) ............................................. 36
Tata v. State,
446 S.W.3d 456 (Tex. App.—Houston [1st Dist.] 2014, pet. filed) ... 21
Taylor v. State,
332 S.W.3d 483 (Tex. Crim. App. 2011) ........................................... 44
Urbano v. State,
808 S.W.2d 519 (Tex. App.—Houston [14th Dist.] 1991, no pet.) .... 42
Valenti v. State,
49 S.W.3d 594 (Tex. App.—Fort Worth 2001, no pet.) ..................... 25
Villescas v. State,
189 S.W.3d 290 (Tex. Crim. App. 2006) ........................................... 24
Ward v. State,
829 S.W.2d 787(Tex. Crim. App. 1992), overruled in part by
Riney v. State, 28 S.W.3d 561 (Tex. Crim. App. 2000) ............... 19, 20
Webb v. State,
No. 05-00-02104-CR, 2002 WL 851730 (Tex. App.—Dallas May 6,
2002, no pet.) (not designated for publication) ................................. 42
Wilson v. State,
520 S.W.2d 377 (Tex. Crim. App. 1975) ........................................... 21
Woods v. State,
398 S.W.3d 396 (Tex. App.—Texarkana 2013, pet. ref'd) ................ 42
Wright v. State,
28 S.W.3d 526 (Tex. Crim. App. 2000) ............................................. 22
viii
Statutes
Tex. Code Crim. Proc. art. 1.14(a) ....................................................... 27
Tex. Code Crim. Proc. art. 28.10 ................................................... 18, 20
Tex. Code Crim. Proc. art. 28.11 ............................................. 18, 19, 21
Tex. Code Crim. Proc. art. 37.071 ....................................................... 22
Tex. Penal Code § 12.425(b) ............................................................ 1, 31
Tex. Penal Code § 30.04 ...................................................................... 33
Tex. Penal Code § 31.03 ........................................................................ 9
Tex. Penal Code § 31.03(a) .................................................................. 33
Tex. Penal Code § 31.03(e)(4)(D) ............................................... 1, 31, 34
Rules
Tex. R. App. P. 33.1(a) ......................................................................... 37
Tex. R. App. P. 44.2(b) ................................................................... 22, 23
Other Authorities
Evidence Law-Boundaries, Balancing, and Prior Felony Convictions:
Federal Rule of Evidence Rule 403 After United States v. Old Chief,
28 N.M.L. Rev. 583 (1998) ................................................................ 38
ix
Statement Regarding Oral Argument
The State does not believe oral argument will assist the Court
in resolving the issues in this case. However, if oral argument is
granted to Appellant, the State requests the opportunity to respond.
Statement of the Case
Charge.... Third-offender Theft (Theft under $1500 with 2 prior thefts)
Tex. Penal Code § 31.03(e)(4)(D)
CR 11
Further enhanced by two non-theft felonies
Tex. Penal Code § 12.425(b)
CR 56-58
Plea to the Theft Offense ........................................................ Not Guilty
4 RR 130
Plea to the Two Prior Thefts Alleged for Jurisdiction .................... True
4 RR 131
Verdict (Jury)................................................................................. Guilty
5 RR 33
Agreed Punishment ................................................ 5 years’ confinement
5 RR 44
Statement of Facts
Loss Prevention Officer (LPO) Tyler Aroche was watching real-
time surveillance at Wal-Mart on December 12, 2012, looking for
shoplifters. 4 RR 136-37. Around 9:30 p.m., he noticed Appellant grab
1
several portable DVD players off the shelf, “one after another,
without looking at the price.” 4 RR 137-38. Aroche had been trained
to look for certain behaviors typical of shoplifters, and this was one
such behavior: quickly selecting items in multiples without first
pausing to verify the price. 4 RR 137, 156, 162. LPOs were also
trained to look for customers selecting “high dollar” items. 4 RR 137.
As Aroche continued his remote observation, he saw Appellant
continually looking around. 4 RR 137. In Aroche’s experience, people
who are shoplifting look around to see if they are being watched, and
he believed this was what Appellant was doing. 4 RR 137, 157.
Aroche noticed that Appellant would leave the DVD players behind in
the shopping cart while he walked around the electronics department,
“constantly looking around.” 4 RR 138-40. Instead of looking at
merchandise, Appellant was repeatedly looking over his shoulder. 4
RR 140. It appeared to Aroche that he was looking to see if anyone
was watching him. 4 RR 140. This behavior was not consistent with
that of the typical shopper that Aroche observed on a daily basis. 4
RR 148. The usual shopper does not leave their cart to walk around
nervously as Appellant did. 4 RR 148.
2
Because he believed there was a theft in progress, Aroche (who
was dressed in plain clothes) left the LPO office to observe Appellant
in person and called 911. 4 RR 139. Appellant, meanwhile, returned
to his shopping cart and began walking toward the garden center. 4
RR 140. That part of the store was already closed for the night, and
no employees were present to ring up purchases. 4 RR 140-41, 155.
In Aroche’s experience, the garden center was a common place
for shoplifters to try to leave the store with merchandise, particularly
since few people could be found in that part of the store at night. 4 RR
141. That night was no exception; the garden center was “pretty
deserted.” 4 RR 159.
Aroche saw Appellant “walking with some purpose” through the
garden center, pushing the shopping cart past the last cash register
inside the store building and then outdoors onto the partly covered
outdoor garden center area. 4 RR 141-42, 151-52, 159. He did not stop
to look at any merchandise in the garden center but was looking
behind him as he went. 4 RR 141, 145; SX 1 (Part 6) at 9:17:20.
Just as he was reaching the darkened portion of the patio
outside, car lights appeared through the gate in front of him, and
3
Appellant stopped, turned his head, and looked outside. 4 RR 142; SX
1 (Part 6) at 9:17:21. Aroche saw at that moment that a police cruiser
had “just arrived” and was visible from inside the garden center. 4 RR
141-42, 168. Appellant took his hands off the cart, left the cart
behind, and walked back into the main part of the store and out the
front exit, continuing to look over his shoulder nervously. 4 RR 142.
After Aroche had called 911, Plano Police Officer Kyle Norton,
and several other police units responded to the Wal-Mart, and Officer
Norton met Appellant at the front exit. 4 RR 166, 168. Aroche told
Officer Norton that he had seen Appellant approach the garden
center exit with items he had not purchased and that Appellant had
looked out and was “startled.” 4 RR 169. As to what may have
startled Appellant, Aroche told Officer Norton he believed Appellant
had seen the officer positioned at the garden center exit. 4 RR 169.
Officer Norton also found it significant that Appellant had gone out
“completely opposite doors from where he was at, and there was a
door right there that he could have used.” 4 RR 172.
When Officer Norton asked Appellant about what had
happened, the only thing Appellant said was that he had stopped to
4
shop at the Wal-Mart on his way home after a gambling trip to
Oklahoma. 4 RR 169.
The merchandise Appellant left behind in the shopping cart
near the garden center exit included five portable DVD players, two
rolls of wrapping paper, and two decorative pillows, totaling $561.76.
4 RR 149; SX 2. Officer Norton arrested Appellant, and he was later
indicted for theft under $1,500 with two prior theft convictions. 4 RR
170; CR 11.
5
Summary of the State’s Arguments
State’s Reply to Issue One:
The evidence is sufficient to establish that Appellant intended
to deprive Wal-Mart of the property he abandoned just inside the exit
door. Appellant made a deliberate path toward a deserted exit with
several high-end items, repeatedly looked over his shoulder as he
went, and abandoned his advance toward the exit only when startled
by the sudden appearance of a police car outside the exit gate.
State’s Reply to Issues Two & Three:
Because no actual amendment to the indictment took place,
there was no error stemming from the trial court’s decision to permit
an amendment over the defense objection on the day trial began.
Even though the indictment was not actually amended, this did not
result in a material variance between pleading and proof as the
prosecutor was merely trying to alter the name of the convicting court
for one of the jurisdictional prior convictions alleged in the
indictment.
6
State’s Reply to Issue Four:
This Court should not reach Appellant’s complaint concerning
the sufficiency of the State’s proof of prior convictions alleged for
punishment enhancement because Appellant waived his right to
appeal punishment issues in exchange for an agreed 5-year sentence.
In any case, there was sufficient proof of two sequential non-theft
felony convictions to support enhancement to a second-degree felony.
State’s Reply to Issue Five:
It was not error to inform the jury of Appellant’s specific prior
theft convictions either through the State’s evidence of those prior
convictions or in the jury charge. Case law does not prohibit the jury
charge from specifying the details of a defendant’s prior convictions.
And since he did not object to the admission of evidence, Appellant
forfeited any error in the admission of the State’s exhibits. Although
Appellant pleaded true to the prior theft convictions, he forfeited any
complaint about the admission of the details of those convictions by
failing to proffer a written stipulation in lieu of the State’s evidence of
his priors.
7
Argument & Authorities
Issue One
(Sufficiency of the Theft Offense)
The evidence is sufficient to establish that Appellant
intended to deprive Wal-Mart of the property he
abandoned just inside the exit door. Appellant made
a deliberate path toward a deserted exit with several
high-end items, repeatedly looked over his shoulder
as he went, and abandoned his advance toward the
exit only when startled by the sudden appearance of
a police car outside the exit gate.
I. Standard of review
In determining whether the evidence is sufficient, a reviewing
court views all the evidence in the light most favorable to the State
and determines whether any rational trier of fact could have found
the essential elements of the offense beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318 (1979); Brooks v. State, 323
S.W.3d 893, 895 (Tex. Crim. App. 2010). This standard ensures that it
remains the jury’s responsibility to fairly resolve conflicts in the
testimony, weigh the evidence, and to draw reasonable inferences
from basic to ultimate facts. Jackson, 443 U.S. at 319.
8
II. The circumstantial evidence was sufficient to establish
Appellant intended to deprive Wal-Mart of its property
A person commits the offense of theft if he unlawfully
appropriates property with the intent to deprive the owner of the
property. Tex. Penal Code § 31.03. Intent to deprive may be
established by showing the defendant actually deprived the owner of
his property. Rowland v. State, 744 S.W.2d 610, 612 (Tex. Crim. App.
1988). But actual deprivation is not an element of theft, and intent to
deprive may be established by other evidence. Id. Intent may be
inferred from circumstantial evidence such as acts, words, and the
conduct of the defendant. Guevara v. State, 152 S.W.3d 45, 50 (Tex.
Crim. App. 2004).
Appellant complains that the evidence in the instant case did
not show he intended to deprive Wal-Mart of property since he did
not attempt to conceal any merchandise and did not actually remove
it from the premises. App. Brief at 11. But neither fact is required for
theft. As early as 1974, the Court of Criminal Appeals held that
removal of the property from the premises was not required to
establish the offense theft. Baker v. State, 511 S.W.2d 272, 272 (Tex.
Crim. App. 1974). In Baker, the defendant scaled the fence of a
9
company, moved a 200-pound valve two or three feet from its original
position with the help of his accomplice, and was apprehend as he
climbed back over the fence. Id. The Court found this evidence
sufficient for theft. Id. In yet another case, the Court upheld a
conviction for vehicle theft when the defendant got into a car that had
its key still in the ignition, started the motor, and had only put his
hands on the steering wheel when several off-duty police officers (who
were in charge of the car) arrested him. Barnes v. State, 513 S.W.2d
850, 850 (Tex. Crim. App. 1974). The Barnes Court held that the
taking was complete although the defendant was interrupted before
he had time to abscond with the property. Id. at 851.
More recently, the Waco Court of Appeals reaffirmed the same
proposition—that property need not be removed to constitute theft.
Hawkins v. State, 214 S.W.3d 668, 670 (Tex. App.—Waco 2007, no
pet.). In Hawkins, the defendant picked up a roll of barbed wire from
a store at night, dropped it when he was startled by an employee, and
fled. Id. The court rejected the notion that the State had to prove
actual removal of the property before there could be a completed
theft. Id.; see also Butler v. State, No. 01-10-00725-CR, 2012 WL
10
1379628 (Tex. App.—Houston [1st Dist.] Apr. 19, 2012, no pet.) (not
designated for publication) (finding defendant’s conduct sufficient to
establish intent for theft from Best Buy despite his re-shelving the
cell phone he had put in his pants when the front doors failed to open
when he tried to leave the store).
The evidence in the instant case is likewise sufficient primarily
because it shows that Appellant all but removed the property from
the unstaffed exit and only failed to remove the property from the
premises because he did not want to be caught by a police officer
waiting outside the exit.
But Appellant’s intent to steal may be inferred from the entirety
of his conduct. First, he put multiple expensive items in his cart
without pausing to look at the price. This was a small indication of
theft because for someone who was not going to be paying for the
DVD players, the price would be immaterial. The inference that
Appellant was committing a theft became still stronger when he left
his shopping cart and looked up and down the aisles, paying attention
to what people might be around, instead of the merchandise. To the
11
trained loss prevention officer, this was not normal shopping
behavior.
Appellant’s suspicious behavior took on nefarious intent when
he pushed the cart “with some purpose” into a deserted area of the
store, looking behind him as he went. 4 RR 137-140, 148, 157.
Contrary to Appellant’s assertions in the brief, the surveillance
footage captures Appellant repeatedly looking over his shoulder as he
walked through the garden center and toward the darkened exit:
SX 1 (Part 6) at 9:17:20. Other courts have found a defendant’s
conduct of repeatedly checking over his shoulder to be a factor
indicative of theft. See, e.g., State v. Deaton, 438 So. 2d 1218, 1220 (La.
Ct. App. 1983) (finding evidence sufficient to establish required intent
for theft when defendant hid items in trash can in shopping cart,
repeatedly checked over her shoulder to make sure no one was
12
watching, and attempted to exit store with goods at unattended
checkout aisle); C.L.A. v. State, 478 So. 2d 872 (Fla. Dist. Ct. App.
1985) (sufficient evidence of theft as a party when juvenile distracted
store clerk and looked over shoulder for persons who might be
watching while his companion pried open jewelry case).
Added to this conduct is the coincidence of Appellant’s decision
to abandon the cart on the threshold of the deserted exit at the very
moment a police car appeared outside. Aroche testified that when
Appellant abandoned the cart, a police cruiser had “just arrived” and
was visible from inside the garden center. 4 RR 141-42, 168. And at
the time, Aroche described Appellant as having been “startled.” 4 RR
169. Given the jury’s guilty verdict, they must have found Aroche’s
account of the timing of events credible, a fact finding that is entitled
to deference on appeal. See Brooks, 323 S.W.3d at 899 (“in the light
most favorable to the verdict” means the reviewing court must defer
to the jury’s credibility determinations).
Furthermore, the surveillance footage corroborates the
appearance of a car right as Appellant was at the threshold of the
darkened patio in front of the gate. SX 1 (Part 6) at 9:17:21. It also
13
shows that the car caught Appellant’s attention, because Appellant
stopped the cart, turned his head, and looked outside before
abandoning the cart and walking in the opposite direction. Id. at
9:17:21. From this evidence, it was a reasonable deduction for the
jury to believe that but for the sudden appearance of the police car,
Appellant would have exited the store with the unpaid-for
merchandise.
One final indicator of Appellant’s nefarious intent came from
Officer Norton, who testified that Appellant went out of his way to
avoid exiting near the police car and instead left through an exit that
was in an entirely different part of the store. 4 RR 172. This evidence
of flight, even at a slow speed, furthers the inference that Appellant
was intending to deprive Wal-Mart of its property until the police
showed up and he risked being caught. Headlong flight—wherever it
occurs—is the consummate act of evasion: It is not necessarily
indicative of wrongdoing, but it is certainly suggestive of such. Illinois
v. Wardlow, 528 U.S. 119, 124 (2000).
Appellant’s intent to steal is apparent in the sum of all his
actions: how he selected the merchandise, kept watch over who might
14
be observing him, took a deliberate path toward an unstaffed exit,
abandoned the merchandise on the sudden appearance of the police,
and adopted a circuitous route out of the store when the most direct
way out would take him past an officer. From this evidence, the jury
was not irrational in believing Appellant was intending to steal.
Appellant points out that he was not concealing anything and
did not say anything to indicate his intent was to deprive Wal-Mart of
its property. Appellant suggests that it is equally plausible that
Appellant was innocently shopping and decided not to make his
purchases when he could not find everything he needed. App. Brief at
11, 13-14. But the State no longer has to exclude every other
reasonable hypothesis except that the defendant is guilty. Geesa v.
State, 820 S.W.2d 154, 160-61 (Tex. Crim. App. 1991), overruled on
other grounds by Paulson v. State, 28 S.W.3d 570, 572-73 (Tex. Crim.
App. 2000). Because the evidence when considered in the light most
favorable to the jury’s verdict supports the conclusion that Appellant
was intending to steal, this issue should be overruled.
15
Issues Two and Three
(Alleged indictment amendment & Sufficiency of a jurisdictional prior)
Because no actual amendment to the indictment took
place, there was no error stemming from the trial
court’s decision to permit an amendment over the
defense objection on the day trial began. Even
though the indictment was not actually amended,
this did not result in a material variance between
pleading and proof as the prosecutor was merely
trying to alter the name of the convicting court for
one of the jurisdictional prior convictions alleged in
the indictment.
I. Additional relevant facts
Before voir dire began on the day of trial, the State asked to
amend the indictment allegation regarding Appellant’s 1994
jurisdictional prior theft conviction. 4 RR 5. More specifically, the
State sought to change the convicting court from “County Court at
Law #7,” to “County Court at Law #4.” Id. The following exchange
then took place:
THE COURT: Okay. Any objection by the Defense?
MS. NAHAS: Yes, Your Honor, I will object.
THE COURT: Your objection is overruled. The Court is
going to allow the amendment as a clerical error, not a
substantive error.
16
4 RR 6. No physical interlineation of the indictment took place, and
the State has been unable to find in the trial court’s file any other
document purporting to be an amended indictment. There was no
discussion on the record of how the amendment would be carried out.
Later that same day, the jury was impaneled and sworn. 4 RR 120.
After the trial court stated it would allow the amendment,
Appellant was arraigned outside the jury’s presence and indicated he
would enter a plea of not true to the jurisdictional priors. 4 RR 9.
Then before the jury, the defense changed course and pleaded true to
Appellant’s two jurisdictional priors: the one from 2004 (paragraph 2)
and the one from 1994 (paragraph 3) that had allegedly been
amended. 4 RR 9, 129, 131. Then at trial, the State introduced the
judgment and sentence (J & S) from both convictions. 4 RR 134; SX 3
& 4. The J & S for the 1994 conviction reflected that Appellant’s theft
conviction had indeed occurred in the El Paso County Court at Law
#4, not #7, as alleged. SX 3.
17
II. State’s motion to amend
A. The indictment was never amended, so there was no
reversible error in granting the State’s motion to amend
By statute, the State may amend the indictment before the day
on which trial begins, but once trial commences, the State may not
amend the indictment over the defense objection. Tex. Code Crim.
Proc. art. 28.10; State v. Murk, 815 S.W.2d 556, 558 (Tex. Crim. App.
1991). Case law governs the window of time in the middle, i.e.,
amendments on the day of, but before, trial actually begins. Sodipo v.
State, 815 S.W.2d 551, 555 (Tex. Crim. App. 1991) (op. on reh’g). As
with amendments after trial begins, amendments earlier in the day
(like before voir dire, but on the same day that the jury was later
impaneled and the first witness testified) are prohibited over a
defense objection. Sodipo, 815 S.W.2d at 556.
While the trial court in the instant case may have been wrong to
grant the State’s motion to amend on the day trial began, no error
occurred in the instant case because the indictment was not actually
amended. The Code of Criminal Procedure provides that “[a]ll
amendments of an indictment . . . shall be made with the leave of the
court and under its direction.” Tex. Code Crim. Proc. art. 28.11
18
(emphasis added). Because of Article 28.11, when the State wishes to
amend a pleading, it must first get the trial court’s permission. Perez
v. State, 429 S.W.3d 639, 642 (Tex. Crim. App. 2014). The motion is
not the amendment, but only a request. Id. Further, the ruling on the
motion is only the court’s leave to amend, and is not itself the
amendment. Id. Here, the trial court gave its leave to amend, but no
actual amendment took place.
The rules of what is necessary to amend an indictment have
relaxed in recent years. Formerly, the only way to amend the
indictment was physical interlineation on the face of the indictment.
Ward v. State, 829 S.W.2d 787, 793 (Tex. Crim. App. 1992), overruled
in part by Riney v. State, 28 S.W.3d 561, 566 (Tex. Crim. App. 2000).
Now other methods are possible, such as having the trial court read
the changes into the record and incorporate an amended photocopy of
the indictment into the clerk’s file, as was done in Riney. Riney, 28
S.W.3d at 563. In Perez, the State filed a written motion to amend
and attached an exhibit that set out the amended language. Perez,
429 S.W.3d at 640-41. The parties and the judge then agreed on the
record that the exhibit (which became part of the appellate record)
19
would replace the substantive parts of the indictment, without the
need for pasting these changes over the original indictment. Id. This,
too, was held sufficient. Id.
Despite the liberalization of the requirements for amendment,
the Court of Criminal Appeals has never abandoned the concept that
“[n]either the motion [to amend] itself nor the trial judge’s granting
thereof is an amendment; rather the two comprise the authorization
for the eventual amendment of the charging instrument pursuant to
Article 28.10.” Riney, 28 S.W.3d at 565 (quoting Ward v. State, 829
S.W.2d at 793). Consequently, something more must be done beyond
the granting of the trial court’s permission to amend.
Here, the trial court stated that it would allow the amendment,
but there is no evidence of any second step—that the indictment was
interlineated or that any written document intended to be treated as
the amended indictment was created and filed in the records of the
case. Unlike in Riney and Perez, there was no discussion on the record
of the mechanics of how the amendment would be effectuated. See
Riney, 28 S.W.3d at 566; Perez, 429 S.W.3d at 641. The trial court in
the instant case never “directed” how the amendment would take
20
place, as required by Article 28.11. And there was nothing in writing
other than the original indictment to constitute the live pleading in
the case. See Puente v. State, 320 S.W.3d 352, 358 (Tex. Crim. App.
2010) (finding that an alteration to a judicial confession, even when it
is reduced to writing, is decidedly not a charging instrument, and
thus could not constitute amendment of the indictment); see also
Wilson v. State, 520 S.W.2d 377, 379 (Tex. Crim. App. 1975)
(explaining that “[i]t is, of course, not sufficient to say that the
accused knew with what offense he was charged, but the inquiry
must be whether the charge in writing furnished that information in
plain and intelligible language”); Serna v. State, 69 S.W.3d 377, 380
(Tex. App.—El Paso 2002, no pet.) (requiring more than that the
amendment be memorialized in writing somewhere within the record
to constitute a live pleading).
Because the indictment was never effectively amended, no
reversible error exists from the granting of the State’s motion to
amend the indictment. See Tata v. State, 446 S.W.3d 456, 462 (Tex.
App.—Houston [1st Dist.] 2014), petitions for discretionary review
filed by both State and defense in PD-1195-14); Duncan v. State, 850
21
S.W.2d 813, 815 (Tex. App.—Houston [14th Dist.] 1993, no pet.);
McFarland v. State, 834 S.W.2d 481, 484 (Tex. App.—Corpus Christi
1992, no pet.).
B. Even if the amendment was effective, any error in
permitting the amendment was harmless
As numerous courts (including the Dallas Court of Appeals)
have recognized, error in permitting an untimely amendment of the
indictment over a defense objection can be harmless error. See Wright
v. State, 28 S.W.3d 526, 532 (Tex. Crim. App. 2000) (holding that
attempted amendment of offense date in indictment could not have
harmed defendant when “on or about” language already put
defendant on notice of approximate date), superseded on other
grounds by Code Crim. Proc. art. 37.071; James v. State, 425 S.W.3d
492, 500 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d) (finding
harmless the error in allowing amendment of punishment
enhancement); Dukes v. State, 239 S.W.3d 444, 447-78 (Tex. App.—
Dallas 2007, pet. ref’d) (holding that improper amendment regarding
victim’s address on day of trial was harmless error). Under Rule of
Appellate Procedure 44.2(b), any statutory “error, defect, irregularity,
22
or variance that does not affect substantial rights must be
disregarded.” Tex. R. App. P. 44.2(b).
Here, even if the amendment was effective, it did not affect
Appellant’s substantial rights to permit the late amendment. As is
shown in the next section, Appellant was not entitled to an acquittal,
had the indictment been left uncorrected. And Appellant would have
been able to identify the prior conviction regardless of whether it was
alleged as County Court Number 4 or Number 7. After all, the
indictment correctly alleged several descriptors for Appellant’s 1994
prior conviction, including the date of conviction, the name Appellant
was convicted under, the title of the offense, and the county of
conviction. Compare CR 11 with SX 3. And all of these allegations
conformed to the State’s proof admitted at trial. SX 3. Appellant has
never argued that he was surprised by the amendment or that he was
unable to mount a defense because of the late amendment.
Consequently, any error was harmless.
III. Sufficiency of the jurisdictional prior in light of the
variance between pleading and proof
When it comes to punishment enhancements, prior convictions
are not required to be alleged with the same particularity that must
23
be used in charging on the primary offense. Freda v. State, 704
S.W.2d 41, 42 (Tex. Crim. App. 1986). The accused is entitled to a
description of the judgment of former conviction that will enable him
to find the record and prepare for a trial on the question of whether
he is the convictee named in the judgment. Villescas v. State, 189
S.W.3d 290, 293 (Tex. Crim. App. 2006) (citing Hollins v. State, 571
S.W.2d 873, 875 (Tex. Crim. App. 1978)). Where a variance is shown
in the enhancing portion of an indictment, it does not automatically
render the evidence insufficient; the accused is instead required to
show that the variance resulted in surprise, to his or her prejudice.
Freda, 704 S.W.2d at 43. Variances between an enhancement
allegation and the proof in regard to cause numbers, courts, and dates
of conviction have all been held to be immaterial. Id. at 42–43; Arce v.
State, 552 S.W.2d 163, 164 (Tex. Crim. App. 1977) (finding
enhancement paragraph provided adequate notice to enable the
accused to locate the prior felony convictions alleged where the State
alleged the cause number, county, and date of conviction, but omitted
the designation of the court in which Arce was convicted).
24
The law concerning punishment enhancements has been
extended to jurisdictional priors as well. In Valenti v. State, the Fort
Worth Court of Appeals held that a variance between the indictment
and proof concerning the date of conviction for a jurisdictional prior
alleged for felony DWI was not material where the defendant was
neither surprised by the variance nor misled to his prejudice. Valenti
v. State, 49 S.W.3d 594, 599 (Tex. App.—Fort Worth 2001, no pet.).
This Court reached a similar result in an unpublished decision.
Brown v. State, No. 06-11-00127-CR, 2012 WL 899225, at *2 (Tex.
App.—Texarkana Mar. 16, 2012, pet. ref’d) (not designated for
publication) (finding no material variance when one of the prior theft
conviction allegations alleged the wrong court of conviction).
Here, there is no indication of any harm from the variance.
Regardless of which county court at law had convicted him, Appellant
was still conceding the larger point that he had two prior convictions.
As argued above, there were sufficient other descriptors of
Appellant’s 1994 conviction in the indictment to enable him to discern
whether he was the person named in the judgment.
25
Appellant has not complained that he was surprised or
prejudiced by the discrepancy between the original indictment
allegations and the proof at trial. Indeed, at trial, he had no objection
when the State admitted evidence of the two priors.1 4 RR 131, 134;
SX 3 & 4. And in closing argument, the defense again conceded that
he had two prior convictions for theft, arguing that one of the difficult
issues for the jury was that they were “already aware of two prior
convictions for theft.” 5 RR 17. Without a showing of any prejudice,
the variance is immaterial, and these two issues should be overruled.
Appellant suggests his plea of true to the amended indictment is insufficient to
1
support the element of two prior theft convictions. See App. Brief at 21. But even
if his plea did not make it clear which allegation he was admitting (the amended
or unamended indictment allegation), the State still introduced proof of the two
prior convictions in the form of a judgment and sentence for each conviction, and
this evidence is sufficient proof along with his admission to two prior thefts to
support the prior convictions element. See SX 3 & 4. To the extent he uses the
judgment in the instant case as evidence that he did not plead true to both prior
theft convictions, that argument must fail as the oral pronouncement controls
over the written judgment. Ex parte Huskins, 176 S.W.3d 818, 820 (Tex. Crim.
App. 2005).
26
Issue Four
(Sufficiency to prove punishment enhancement paragraphs)
This Court should not reach Appellant’s complaint
concerning the sufficiency of the State’s proof of prior
convictions alleged for punishment enhancement
because Appellant waived his right to appeal
punishment issues in exchange for an agreed 5-year
sentence. In any case, there was sufficient proof of
two sequential non-theft felony convictions to
support enhancement to a second-degree felony.
I. Appellant knowingly waived his right to appeal sentencing
issues
After the jury verdict of guilty, the parties entered an
agreement, which the trial court followed, that Appellant receive a 5-
year sentence, and among the many rights Appellant was giving up
as part of his agreement was a waiver of the right to appeal. SX 9; CR
75. Specifically, that waiver meant that Appellant “will not have the
right to appeal anything about the punishment phase.” 5 RR 37-38.
During the plea proceeding, both Appellant and the prosecutor agreed
on the record that the trial court’s explanation of the waiver of the
right to appeal punishment issues was correct. 5 RR 38.
A defendant may waive any rights secured him by law. Tex.
Code Crim. Proc. art. 1.14(a). A valid waiver of the right to appeal,
whether negotiated or non-negotiated, will prevent a defendant from
27
appealing without the consent of the trial court. See Monreal v. State,
99 S.W.3d 615, 622 (Tex. Crim. App. 2003); Faulkner v. State, 402
S.W.3d 507, 509 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd)
(finding post-guilt-phase waiver of entire appeal was effective,
depriving court of appeals of jurisdiction). When a defendant waives
his right to appeal after conviction but before sentencing in exchange
for the prosecutor’s promise to recommend a particular sentence that
he then receives, it is not unfair to expect him to live with the
consequences of his waiver. Blanco v. State, 18 S.W.3d 218, 219-20
(Tex. Crim. App. 2000). Appellate courts will not entertain an attack
on the waiver of the right to appeal in the absence of any allegations
or proof that the waiver of the right of appeal was coerced or
involuntary and where there is nothing in the record suggesting
coercion or involuntariness. Ex parte Tabor, 565 S.W.2d 945, 946
(Tex. Crim. App. 1978); Perez v. State, 885 S.W.2d 568, 570 (Tex.
App.—El Paso 1994, no pet.).
Here, Appellant acknowledges that he waived his right to
appeal any punishment issues and does not contend that his waiver
was in any way ineffective. App. Brief at 22-24. Moreover, he did not
28
get the trial court’s permission to appeal this issue, as evidenced by
the trial court’s certification of the defendant’s right to appeal, which
states he has the right of appeal, “except for punishment.” CR 77.
Because Appellant, like the defendant in Blanco, was fully aware of
the likely consequences when he waived his right to appeal, he should
not be able to renege on his waiver of punishment issues. See 18
S.W.3d at 220. Consequently, this Court should not address this
issue. See Faris v. State, No. 06-12-00019-CR, 2012 WL 4459598, at
*3 (Tex. App.—Texarkana Sept. 26, 2012, pet. ref'd) (not designated
for publication) (declining to consider guilt-phase issues on record
that defendant knowingly and willingly waived his right to appeal
guilty verdict after consideration given by the State).
Although Appellant has made repeated reference in this issue to
the words “sentence” and “illegal,” he fails to cite any authority that a
waiver of the right to appeal will be disregarded if the defendant
contends his sentence is illegal. There is some indication that even a
complaint about an illegal sentence is not appropriate for an
appellate court to reach when appeal has been waived. See Ex parte
Garza, 192 S.W.3d 658, 661 (Tex. App.—Corpus Christi 2006, no pet.)
29
(stating in case involving potentially illegal sentence from alleged
improper cumulation order that because of waiver of right to appeal,
defendant had no opportunity to seek relief on direct appeal).
In any case, Appellant does not go as far as to contend his
sentence was illegal; he only suggests that “if” his sentence is illegal,
then it is unauthorized and should be reversed.2 App. Brief at 22, 24.
Instead of complaining of an illegal sentence, Appellant’s issue is
that, perhaps, the State failed to sufficiently prove the non-theft
priors alleged for punishment enhancement. See App. Brief at 24
(stating “it is not clear from the record whether . . . [the non-theft
prior convictions alleged for punishment enhancement] were properly
presented, pleaded or proved.”). Because Appellant waived his right
to appeal this issue in exchange for his 5-year sentence, this Court
should not address this point of error.
2 Appellant’s sentence is not illegal since he bargained for a 5-year sentence on an
enhanced state-jail felony theft. CR 73-74. Even if Appellant was not expressly
asked to enter a plea of true to the punishment enhancement allegations and the
plea paperwork referenced Appellant’s plea of true to enhancements in the
“charging instrument” rather than the notice of enhancement (CR 75), the
punishment proceeding was uncontested. 5 RR 35-43. And Appellant reaped the
benefit of the State’s agreement to the 5-year sentence.
30
II. Sufficient evidence supports enhancement to a second-
degree felony
Even if the Court were to reach this issue, sufficient evidence
supports the enhancement of the offense to a second-degree felony. A
theft offense is a state-jail felony if the value of the property stolen is
less than $1,500 and the defendant has two prior theft convictions.
Tex. Penal Code § 31.03(e)(4)(D). But while a state-jail felony may
ordinarily be enhanced to a second-degree felony (under the habitual
offender statutes in § 12.425(b)) if the defendant has two prior
sequential felony convictions, a defendant’s prior theft convictions—
regardless of their number or degree—cannot serve to enhance the
punishment for a subsequent theft under $1500 beyond that of a
state-jail felony. Rawlings v. State, 602 S.W.2d 268, 269-70 (Tex.
Crim. App. 1980) (holding that in predecessor to § 31.03(e)(4)(D), the
special theft enhancement provision for “any grade of theft” controls
over the general enhancement provisions in Chapter 12).
Consequently, the punishment for state-jail-felony theft of property
less than $1500 may be further enhanced under Chapter 12 only if
the prior felony convictions used for that purpose are for an offense
other than theft. Id.
31
In Foster, which was decided the same day as Rawlings, the
Court of Criminal Appeals implicitly held that burglary is a non-theft
felony that can be used to further enhance a felony theft under
Chapter 12. Foster v. State, 603 S.W.2d 879, 880 (Tex. Crim. App.
1980). The Dallas Court of Appeals has since explicitly held that
burglary is a non-theft felony, reasoning that burglary requires only
an intent to commit theft and that theft requires an actual, completed
unlawful appropriation of property. Chambers v. State, 736 S.W.2d
192, 196 (Tex. App.—Dallas 1987, no pet.); see also Smallwood v.
State, 827 S.W.2d 34, 37 (Tex. App.—Houston [1st Dist.] 1992, pet.
ref'd) (finding burglary of a building is a non-theft offense).
Here, the evidence in the plea hearing at punishment was
sufficient to establish that Appellant had two prior sequential non-
theft felonies. That evidence consisted of Appellant’s admission to two
prior convictions in particular and the State’s evidence of the
judgment and sentence for those two convictions. In particular,
Appellant agreed under oath that he had convictions for:
 a 2004 delivery of a controlled substance;
 a 1983 burglary of a motor vehicle with intent to
commit theft, for which he received a 4-year
sentence.
32
5 RR 41-43. And the trial court admitted the judgment and sentence
of Appellant’s convictions for:
 an April 6, 2006 Dallas County conviction for
second-degree felony delivery of a controlled
substance, committed in 2004 (SX 5 at 6 RR 14); and
 a 1983 Harris County conviction for burglary of a
motor vehicle with intent to commit theft, for which
he received a 4-year sentence (SX 7 at 6 RR 33).
These convictions corresponded to the State’s first and fifth numbered
enhancement allegations in its Notice of Intent to Sentence
Defendant Under the Habitual Offender Provision. CR 56, 58.
Although Appellant argues that burglary of a motor vehicle
with intent to commit theft is “tantamount to a ‘theft’ conviction,”
(App. Brief at 23), both offenses have elements that are not contained
in the other. As with burglary, burglary of a motor vehicle with intent
to commit theft requires no completed theft or appropriation of
property. Tex. Penal Code § 30.04. And theft requires no entry into a
vehicle. Tex. Penal Code § 31.03(a). Consequently, burglary of a
motor vehicle is a non-theft offense that can be used to enhance a
state-jail felony theft to a second-degree offense. Lackey v. State, 881
S.W.2d 418, 419 (Tex. App.—Dallas 1994, pet. ref'd) (suggesting in
33
dicta that burglary of a motor vehicle is a non-theft conviction,
though defendant had not alleged it was not).
Even if burglary of a motor vehicle constitutes a theft-conviction
for purposes of § 31.03(e)(4)(D), there were other judgments and
sentences admitted in the hearing that would qualify as non-theft
felony convictions that were final before Appellant committed the
2004 delivery of a controlled substance. State’s Exhibit 6 shows
Appellant was convicted of second-degree possession of cocaine in
1994 and of burglary in 1988. SX 6 at 6 RR 25, 27. Both of these
offenses were in the State’s notice of enhancement, and either could
have been used along with the 2004 delivery of a controlled substance
prior to enhance Appellant to a second-degree felony. See Foster, 603
S.W.2d at 880.
Either because the evidence supported the enhancement of the
state-jail felony theft to a second-degree offense or because Appellant
waived consideration of this issue on appeal, this issue should be
overruled.
34
Issue Five
(Details of Appellant’s prior theft convictions)
It was not error to inform the jury of the details of
Appellant’s prior theft convictions either through the
State’s evidence of those prior convictions or in the
jury charge. Appellant pleaded true to the prior theft
convictions, which had the effect of removing that
element from the jury’s consideration. But because
Appellant did not ask the State to forgo admitting its
evidence of his priors in exchange for his plea of true,
he forfeited any complaint about the admission of
that evidence. Any error in including the details of
the prior offense in the charge was harmless since
the jury properly heard the same facts when the
State read the indictment.
I. The law involving jurisdictional priors
Article 36.01(a)(1) of the Code of Criminal Procedure indicates
that the State may read indictment allegations of prior convictions
alleged for jurisdiction at the guilt phase of trial. Tex. Code Crim.
Proc. art. 36.01(a)(1). Following the Supreme Court’s decision in Old
Chief v. United States, the Court of Criminal Appeals held that while
the State may read the minimum number of prior conviction
allegations in the indictment, if a defendant offers to stipulate to the
two prior DWI convictions, the State may not offer proof of the prior
convictions beyond the stipulation. Old Chief v. United States, 519
35
U.S. 172, 192 (1997); Tamez v. State, 11 S.W.3d 198, 202 (Tex. Crim.
App. 2000). The offer to stipulate is one that the State may not refuse.
Martin v. State, 200 S.W.3d 635, 638 (Tex. Crim. App. 2006). This
principle has been applied to cases involving multiple theft
convictions. See Marbella v. State, No. 646-00, 2003 WL 1845140, at
*1 (Tex. Crim. App. Apr. 9, 2003) (not designated for publication); but
see Minnamon v. State, 988 S.W.2d 408, 410 (Tex. App.—Houston [1st
Dist.] 1999, no pet.) (finding Old Chief did not apply to third-offender
theft).
In this single issue, Appellant complains about the admission of
the details of his prior theft convictions—both in the evidence the
State admitted (SX 3 & 4) and the mention in the jury charge of the
date, court, county of conviction, cause number, and the like
regarding his prior convictions. Because Appellant pleaded true3 to
the prior theft convictions alleged in the indictment, the jurisdictional
element was no longer in contention. But as is explained below,
3 The trial court asked Appellant how he pled to the jurisdictional paragraphs in
the indictment, and Appellant stated in open court before the jury, “1994 is true,
2004 is true.” 4 RR 131. The cases following Tamez appear to involve the
situation of a general plea of not guilty to the offense, rather than a plea of true
to an element at the guilt phase. As a result, the judicial admission in the Tamez
line of cases came in the form of a written stipulation of evidence.
36
Appellant did not take the steps necessary to prevent the State from
admitting evidence of his priors.
The State will address Appellant’s evidentiary issue first and
then his jury charge issue.
II. Admission of other evidence of jurisdictional priors
Appellant forfeited his complaint about the admission of
evidence of the jurisdictional prior convictions by failing to object and
by failing to condition his plea of true on the State forgoing any other
evidence of his prior theft convictions.
To preserve error for appellate review, a party must object at
trial and obtain an adverse ruling. Tex. R. App. P. 33.1(a). The Court
of Criminal Appeals has consistently held that the failure to object in
a timely and specific manner during trial forfeits complaints about
the admissibility of evidence. Fuller v. State, 253 S.W.3d 220, 232
(Tex. Crim. App. 2008).
Here, Appellant stated he had no objection when the State
offered into evidence the public records showing his two prior
convictions (SX 3 & 4). 4 RR 134. By failing to object to their
37
admission, Appellant forfeited his complaint that the judgments of
convictions should not have been admitted.
While Appellant cites Tamez and its progeny in support of his
argument that the details of his prior convictions should not have
been admitted into evidence in light of his plea, those cases are
inapplicable without the defense actually proposing or offering to
trade a stipulation for the State’s other evidence of jurisdictional
priors. “[I]n order to benefit from Old Chief, a defendant with a prior
felony conviction first must remember to offer to stipulate to the fact
of his prior conviction at trial.” Amina Quargnali-Linsley, Evidence
Law-Boundaries, Balancing, and Prior Felony Convictions: Federal
Rule of Evidence Rule 403 After United States v. Old Chief, 28 N.M.L.
Rev. 583, 604 (1998) (emphasis added). It is when the accused “offers
to stipulate” to the jurisdictional prior convictions that the probative
value of evidence of those convictions is substantially outweighed by
the danger of unfair prejudice. See Robles v. State, 85 S.W.3d 211, 213
(Tex. Crim. App. 2002). In the absence of a stipulation to evidence,
judgments from prior convictions are relevant to show the existence
of those prior convictions. Id. at 212. It is thus incumbent on
38
Appellant to extend an offer—to make it clear that any concession to
the jurisdictional element is contingent—in order to preclude
admission of judgments from prior convictions. See id. As the
Fourteenth Court of Appeals explained in an unpublished decision:
Before the rule in Tamez will foreclose the prosecution
from introducing evidence of a defendant’s prior DWI
convictions, the defendant must actually offer to stipulate
to the relevant prior convictions.
Nall v. State, 14-06-00345-CR, 2007 WL 2481171, at *4 (Tex. App.—
Houston [14th Dist.] Sept. 4, 2007, no pet.) (not designated for
publication) (holding that defendant’s failure to stipulate to the
jurisdictional prior convictions takes the defendant’s case out of the
rule in Tamez); see also Dunn v. State, 08-02-00516-CR, 2004 WL
1858352, at *6 (Tex. App.—El Paso Aug. 19, 2004, pet. ref'd) (not
designated for publication) (finding defendant’s failure to object to
admission of evidence of priors waived error despite contemplation
and then withdrawal of stipulation by the defense).
In the instant case, Appellant pleaded true to the two
jurisdictional prior offenses, but there is no discussion in the record of
any offer to enter this plea in exchange for the State forgoing any
other evidence of his prior convictions. From all indications,
39
Appellant’s plea of true was one-sided and not conditioned on the
State giving up any of its proof. 4 RR 129-30.
Moreover, the stipulation of evidence contemplated in Tamez
and its progeny is one in written form that the State could introduce
into evidence. Hollen v. State, 117 S.W.3d 798, 802 (Tex. Crim. App.
2003). There is no indication in the record of any written stipulation
that the State would have been able to introduce in lieu of its own
evidence of Appellant’s prior convictions.
Because Appellant never conditioned his plea of true on the
State withholding its own evidence of his prior theft convictions and
because he never objected when the State offered that other evidence,
he has forfeited his complaint that the State’s exhibits informed the
jury of some of the particulars of his prior theft convictions.
III. Details of prior thefts in the jury charge
Like Appellant’s evidentiary issue, Appellant’s complaint about
the jury charge is also without merit. Because the jury charge tracked
the language of the indictment, at most the charge informed the jury
of the same details about his prior convictions that they already
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heard during the reading of the indictment. The jury charge
instructed the jury:
A theft under $1500 becomes a felony if the defendant was
previously convicted two times of the offense of theft. The
State has alleged that GARY MOORE has been previously
convicted two times of the offense of theft, to wit: on the 14th
day of July, A.D. 2004, in the County Criminal Court # 3 of
Tarrant County, Texas, in cause number 0878309001, on the
docket of said court, the said Defendant, under the name of
Gary Moore, was duly and legally convicted in the said last
named court of the offense of Theft of Property more than fifty
dollars ($50.00) but less than five hundred dollars ($500.00)
upon an information then legally pending in said last named
court of which said court had jurisdiction; and on the 30th day
of March, A.D., 1994, in the County Court at Law #4 of El
Paso County, Texas, in cause number 940C03986, on the
docket of said court, the said defendant, under the name of
Gary Celestine, was duly and legally convicted in the said last
named court of the offense of Theft>=$20 <$200 upon an
information then legally pending in said last named court of
which said court had jurisdiction. The Defendant has
stipulated that these allegations are true, and you are
instructed to find them true. You may not consider the
existence of these prior convictions for any purpose other than
establishing the jurisdictional element of two prior
convictions. You are further instructed that evidence of these
prior convictions cannot be considered as evidence that the
Defendant committed theft on the 12th day of December,
2012.
CR 81-82. Although both the jury charge and the prosecutor in closing
argument used the term “stipulated,” it was used in the sense that
Appellant was agreeing or conceding the truth of the prior
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convictions. Again, no evidence in the record indicates Appellant’s
plea of true was conditional.
While Appellant did not seek to prevent the State from
introducing other evidence of his priors, his plea of true nevertheless
had a legal effect: it withdrew the jurisdictional element from
contention. Ordinarily, the State has the burden of proving a prior
conviction alleged for enhancement, but where a defendant pleads
true to the prior conviction, he removes this burden from the State.
Harvey v. State, 611 S.W.2d 108, 111 (Tex. Crim. App. 1981). Judicial
admissions are formal concessions in the pleadings in the case or
stipulations by a party or counsel that have the effect of withdrawing
a fact from issue. Bryant v. State, 187 S.W.3d 397, 400 (Tex. Crim.
App. 2005) (citing 2 John W. Strong, et al., McCormick on Evidence §
255 (5th ed.1999)); see also Woods v. State, 398 S.W.3d 396, 400 (Tex.
App.—Texarkana 2013, pet. ref’d) (finding oral stipulation in open
court that defendant was admitting two jurisdictional priors was
sufficient to sustain conviction in plea proceeding despite lack of
formal judgment proving prior conviction). As the courts of appeals
have held in the context of punishment enhancements, when the
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defendant pleads true to an enhancement allegation, the trial court
may expressly instruct the jury to find the enhancement allegations
true. Chandler v. State, 21 S.W.3d 922, 923 (Tex. App.—Houston
[14th Dist.] 2000, no pet.); Urbano v. State, 808 S.W.2d 519, 523 (Tex.
App.—Houston [14th Dist.] 1991, no pet.); Gonzalez v. State, No. 13-
05-115-CR, 2006 WL 488681, at *1 (Tex. App.—Corpus Christi Mar.
2, 2006, no pet.) (not designated for publication); Webb v. State, 05-00-
02104-CR, 2002 WL 851730, at *4 (Tex. App.—Dallas May 6, 2002, no
pet.) (not designated for publication).
Here, Appellant does not contend that it was improper to
instruct the jury to find true the element of two prior theft
convictions. Indeed, he had no objection to the charge at trial. 5 RR 9.
But he complains that the jury charge should not have included the
details of his prior theft convictions. App. Brief at 24-27.
While not exactly on all fours, it is helpful to consider case law
where there was a formal stipulation in exchange for the State
forgoing other evidence of jurisdictional prior convictions. Appellant
cites Freeman for the proposition that a jury instruction regarding
the two prior DWI convictions need not refer to particulars of those
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two priors. Freeman v. State, 413 S.W.3d 198, 208 (Tex. App.—
Houston [14th Dist.] 2013, pet. ref’d). While this is true enough,
Freeman does not prohibit the charge from referring to the
particulars. More importantly, Martin (which Freeman relies on)
expressly approves of the kind of jury instruction given in this case:
The trial court can instruct the jury about the stipulated
prior convictions in any of several different ways. One
way is to include the specific indictment allegations of the
two prior DWI convictions in the application paragraph
with a separate paragraph stating that the defendant has
stipulated to the existence of those two prior convictions,
thus that jurisdictional element has been established.
Martin, 200 S.W.3d at 639. Because the jury charge in the instant
case complied with one of the instructions sanctioned by the Court of
Criminal Appeals in Martin, it was not erroneous.
Even if it was error to include all the particulars of the court
and date of conviction in the jury charge, this could not have resulted
in egregious harm. Where there was no objection to the complained-of
charge error at trial, as there was not here, a defendant can obtain a
reversal only if egregious harm resulted from the error. Taylor v.
State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011) (citing Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g)). The
44
jury would have heard this same information when the State read the
indictment and again when the jury considered the State’s Exhibits
(SX 3 & 4). Further mention in the charge of these largely incidental
details would have been insignificant at best.
This issue should be overruled.
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Prayer
Appellant’s trial was without prejudicial error. The State prays
that this Court will affirm Appellant’s conviction and sentence.
Respectfully submitted,
Greg Willis
Criminal District Attorney
Collin County, Texas
John R. Rolater, Jr.
Asst. Criminal District Attorney
Chief of the Appellate Division
/s/ Emily Johnson-Liu
Emily Johnson-Liu
Asst. Criminal District Attorney
2100 Bloomdale Rd., Suite 200
McKinney, TX 75071
State Bar No. 24032600
(972) 548-4331
FAX (214) 491-4860
ejohnson-liu@co.collin.tx.us
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Certificate of Service
The State has e-served counsel for Appellant, the Honorable
Randell Johnson, through the eFileTexas.gov filing system and sent a
courtesy copy by e-mail to wrjlaw@aol.com on this, the 16th day of
January 2015.
/s/ Emily Johnson-Liu
Assistant Criminal District Attorney
Certificate of Compliance
This brief complies with the word limitations in Texas Rule of
Appellate Procedure 9.4(i)(2). In reliance on the word count of the
computer program used to prepare this brief, the undersigned attorney
certifies that this brief contains 8,777 words, exclusive of the sections
of the brief exempted by Rule 9.4(i)(1).
/s/ Emily Johnson-Liu
Assistant Criminal District Attorney
47