Christopher Charles Blair v. State ( 2013 )

IN THE
TENTH COURT OF APPEALS
No. 10-12-00444-CR
No. 10-12-00445-CR
CHRISTOPHER CHARLES BLAIR,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 220th District Court
Hamilton County, Texas
Trial Court Nos. CR07751 and CR07762
MEMORANDUM OPINION
In Cause No. 10-12-00444-CR, Christopher Charles Blair was indicted for the
offense of engaging in organized criminal activity. In Cause No. 10-12-00445-CR, Blair
was indicted for the offense of unauthorized use of a motor vehicle. In each cause
number, Blair entered a plea of guilty to the charged offense. The trial court assessed
punishment at ten years confinement and a $1000 fine in each cause number and
ordered that the sentences run consecutively. We affirm.
Cause No. 10-12-00444-CR
In his first issue on appeal in Cause No. 10-12-00444-CR, Blair argues that the
trial court erred in accepting his guilty plea because he did not stipulate as to one of the
required elements of the charged offense. Article 1.15 of the Texas Code of Criminal
Procedure provides that “ it shall be necessary for the state to introduce evidence into
the record showing the guilt of the defendant … in no event shall a person charged be
convicted upon his plea without sufficient evidence to support the same." TEX. CODE
CRIM. PRO. ANN. art. 1.15 (West 2005). Evidence offered in support of a guilty plea may
take many forms, including a "written stipulation of what the evidence against him
would be," and such a stipulation "will suffice to support the guilty plea so long as it
embraces every constituent element of the charged offense." Menefee v. State, 287 S.W.3d
9, 13 (Tex. Crim. App. 2009).
A person commits the offense of engaging in organized criminal activity if “with
the intent to establish, maintain, or participate in a combination or in the profits of a
combination … the person commits or conspires to commit one or more of the
following: … theft.” TEX. PENAL CODE ANN. § 71.02 (a) (2) (West Supp. 2012). A person
commits theft if he unlawfully appropriates property with the intent to deprive the
owner of the property. TEX. PENAL CODE ANN. § 31.03 (a) (West Supp. 2012).
The written stipulation of evidence states that Blair waives his right against self-
incrimination and judicially confesses to the following facts:
… I did then and there, with intent to establish, maintain, or participate in
a combination or in the profits of a combination, said combination
consisting of me and Joshua Wayne Stifflemire, Trena Louise Bottlinger,
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and Mary Ann Cox, who collaborated in carrying on the hereinafter
described criminal activity, conspire to commit the offense of Theft of
Material, less than $20,000 by agreeing with each other that we would
engage in conduct that constituted said offense, and myself, Joshua
Wayne Stifflemire, Trena Louise Bottlinger, and Mary Ann Cox performed
an overt act in pursuance of said agreement, to-wit: disassembling stolen
property into component parts to recycle for profit.
Blair argues that his stipulation of evidence is insufficient to support his conviction
because the stipulation does not include an element of the offense of theft, the owner of
the stolen property.
Courts have held that an indictment alleging capital murder or engaging in
organized criminal activity need not allege the particular elements of the underlying
offense. State v. Hernandez, 395 S.W.3d 258, 261 (Tex.App.—San Antonio 2012, no pet.).
In an organized crime case, the State need not allege the manner and means by which
the underlying theft was committed. Jarnigan v. State, 57 S.W.3d 76, 92 (Tex.App.—
Hous. [14 Dist.] 2001, pet. ref’d).
A determination of guilt in regard to organized criminal activity requires: (1) an
intent to participate in a criminal combination, and (2) the performance of some act,
although not necessarily criminal in itself, in furtherance of the agreement. Barber v.
State, 764 S.W.2d 232, 235 (Tex. Crim. App. 1988). The written stipulation provides
sufficient evidence of the offense of engaging in organized criminal activity.
When the evidence admitted apart from erroneously admitted stipulations or
stipulated testimony is sufficient to support the conviction, any error in a trial court's
failure to comply with Article 1.15 is harmless. TEX. R. APP. P. 44.2 (b); See Ybarra, 93
S.W.3d 922, 926-28 (Tex.App.—Corpus Christi 2002, no pet.); Whitmire, 33 S.W.3d 330,
Blair v. State Page 3
335-36 (Tex.App.—Eastland 2000, no pet.). Furthermore, the evidence introduced
during the punishment phase of trial is also sufficient to support the trial court's finding
of guilt on the other essential elements of the offense. See Stewart v. State, 12 S.W.3d 146,
148-49 (Tex.App.—Houston [1st Dist] 2000, no pet.).
Officer Justin Caraway, with the Hamilton County Sheriff’s Office, testified at the
punishment hearing that he received calls for several weeks of theft of scrap iron and
valuable metals from property all over the county. He went to a residence where he
located stolen property, and Mary Ann Cox and Josh Stifflemire were present at the
residence. Stifflemire admitted that he and Blair had stolen items and that they were
transported to be sold for scrap metal. Officer Caraway named several victims of the
multiple thefts during his testimony. We overrule the first issue.
In the second issue, Blair contends that the punishment evidence established that
the alleged combination intended nothing more than to commit a single offense or
engage in a single criminal episode. A “combination” for purposes of engaging in
organized criminal activity means “three or more persons who collaborate in carrying
on criminal activities.” TEX. PENAL CODE ANN. § 71.01 (a) (West 2011). Blair argues that
a combination requires more than a single criminal episode and that there is no
punishment evidence of a continuing course of conduct. Blair stipulated to the
elements of the offense of engaging in organized criminal activity. Moreover, Officer
Caraway’s testimony at punishment establishes that Blair and three individuals
committed the thefts over several weeks and involved several victims. We overrule the
second issue.
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In the third issue, Blair argues that he was punished for a third degree felony
when he committed only a state jail felony. Theft of material less than $20,000 is a state
jail felony. TEX. PENAL CODE ANN. § 31.03 (e) (4) (A) (West Supp. 2012). The
punishment for engaging in organized criminal activity is one category higher than the
most serious offense listed in § 71.02 (a). TEX. PENAL CODE ANN. § 71.02 (b) (West Supp.
2012). The punishment range for engaging in organized criminal activity would be for a
third degree felony with the offense of theft of materials less than $20,000. Section 71.02
(c) states that “Conspiring to commit an offense under this section is of the same degree
as the most serious offense listed in Subsection (a) that the person conspired to
commit.” TEX. PENAL CODE ANN. § 71.02 (c) (West Supp. 2012). Blair argues that
Section 71.02 (c) applies in this case and that he should have been punished for a state
jail felony.
The indictment alleged that Blair both conspired to commit and did commit the
offense of engaging in organized criminal activity. Blair stipulated that he engaged in
conduct that constituted the offense. The trial court did not err in assessing Blair’s
punishment. We overrule the third issue.
Cause No. 10-12-00445-CR
In Cause No. 10-12-00445-CR, Blair raises a sole issue on appeal that the trial
court erred in accepting his guilty plea because the evidence in support of the plea was
insufficient to comply with TEX. CODE CRIM. PRO. ANN. art. 1.15 (West 2005). A person
commits the offense of unauthorized use of a motor vehicle if he “intentionally or
Blair v. State Page 5
knowingly operates another’s boat, airplane, or motor-propelled vehicle without the
effective consent of the owner.” TEX. PENAL CODE ANN. § 31.07 (a) (West 2011).
Blair signed a written stipulation of evidence. The stipulation states, “on the 20 th
day of June 2012, in HAMILTON County, Texas, I did then and there, intentionally or
knowingly operate a motor-propelled vehicle, to with (sic): an automobile, without the
effective consent of Bill Shipman, the owner thereof.“ Blair argues that the stipulation
omits an element of the offense of unauthorized use of a motor vehicle, that he knew he
did not have the effective consent of the owner of the vehicle. Blair stipulated that he
intentionally operated the motor vehicle without the effective consent of the owner.
The trial court did not err in accepting the guilty plea. Moreover, any harm from
accepting the guilty plea is harmless. TEX. R. APP. P. 44.2 (b). We overrule the sole issue
on appeal in Cause No. 10-12-00445-CR.
We affirm the judgments of the trial court.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed August 29, 2013
Do not publish
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