Gerald Mac Lowrey v. State

ACCEPTED
06-14-00172-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
5/6/2015 11:03:02 AM
DEBBIE AUTREY
CLERK
ORAL ARGUMENT WAIVED
FILED IN
6th COURT OF APPEALS
CAUSE NO. 06-14-00172-CR TEXARKANA, TEXAS
5/6/2015 11:03:02 AM
IN THE DEBBIE AUTREY
Clerk
COURT OF APPEALS
SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA
____________________________________________________________
GERALD MAC LOWREY, Appellant
V.
THE STATE OF TEXAS, Appellee
____________________________________________________________
ON APPEAL FROM THE 6TH JUDICIAL DISTRICT COURT
LAMAR COUNTY, TEXAS
TRIAL COURT NO. 25492; HONORABLE WILL BIARD, JUDGE
____________________________________________________________
APPELLEE’S (STATE’S) BRIEF
____________________________________________________________
Gary D. Young, County and District Attorney
Lamar County and District Attorney’s Office
Lamar County Courthouse
119 North Main
Paris, Texas 75460
(903) 737-2470
(903) 737-2455 (fax)
ATTORNEYS FOR THE STATE OF TEXAS
IDENTITY OF PARTIES AND COUNSEL
Pursuant to Tex. R. App. P. 38.2(a)(1)(A), the list of parties and
counsel is not required to supplement or correct the appellant’s list.
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TABLE OF CONTENTS
PAGE NO.:
IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . i
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . vii
STATEMENT REGARDING ORAL ARGUMENT . . . . . . . viii
ISSUE PRESENTED IN REPLY. . . . . . . . . . . . . . . . . . . . . . . ix
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . 13
ARGUMENT AND AUTHORITIES
ISSUE/POINT OF ERROR PRESENTED IN REPLY
NO. 1: THE TRIAL COURT DID NOT ABUSE ITS
DISCRETION IN DENYING THE WRIT OF
ATTACHMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ISSUE/POINT OF ERROR PRESENTED IN REPLY
NO. 2: THE TRIAL COURT DID NOT ABUSE ITS
DISCRETION IN DENYING THE MOTION FOR
CONTINUANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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PAGE NO:
ISSUE/POINT OF ERROR PRESENTED IN REPLY
NO. 3: THE EVIDENCE WAS LEGALLY-SUFFICIENT
FOR THE JURY, AS A RATIONAL FACT FINDER, TO
FIND THAT “JOE TEX EXPRESS” WAS THE SPECIFIC
OWNER OF THE PROPERTY. . . . . . . . . . . . . . . . . . 22
ISSUE/POINT OF ERROR PRESENTED IN REPLY
NO. 4: THE ALLEGED VARIANCE, IF ANY,
(BETWEEN THE NAME OF THE SPECIFIC OWNER
ALLEGED AND THE NAME PROVED) WAS IMMATERIAL,
AND NOT FATAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
PRAYER . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . 31
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . 32
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . 32
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INDEX OF AUTHORITIES
CASES: PAGE NO:
Boyette v. State, 632 S.W.3d 915, 916, 917 (Tex. App.--Houston
[14th Dist.] 1982, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . 28, 29, 30
Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.
App. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Byrd v. State, 336 S.W.3d 242, 251, n. 48, 252, 253 (Tex. Crim.
App. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 26, 28
Cada v. State, 334 S.W.3d 766, 776 (Tex. Crim.
App. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Clark v. State, 305 S.W.3d 351, 355 (Tex. App.--Houston [14th
Dist.] 2010) aff’d, 365 S.W.3d 333 (Tex. Crim.
App. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15,18
Coleman v. State, 966 S.W.2d 525, 527-28 (Tex. Crim.
App. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17
Castillo v. State, 901 S.W.2d 550, 553 (Tex. App.--El Paso
1995, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17, 18
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim.
App. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Driggers v. State, 155 Tex. Crim. 475, 477, 236 S.W.2d 497,
498 (1950) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18-19
Emenhiser v. State, 196 S.W.3d 915, 921 (Tex. App.--Fort Worth
2006, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16, 18
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CASES: PAGE NO:
Freeman v. State, 707 S.W.2d 597, 602-03 (Tex. Crim.
App. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Geick v. State, 349 S.W.3d 542, 545 (Tex. Crim.
App. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Gentry v. State, 770 S.W.2d 780, 786, 787 (Tex. Crim. App.
1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 21
Gollihar v. State, 46 S.W.3d 243, 256 (Tex. Crim.
App. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Hard. v. State, 471 S.W.2d 60, 62 (Tex. Crim. App.
1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17, 18
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.
2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Jackson v. Virginia, 443 U.S. 307, 318, 319, 99 S. Ct. 2781,
61 L. Ed. 2d 560 (1979) . . . . . . . . . . . . . . . . . . . . . . . . 22, 23
Middleton v. State, 476 S.W.2d 14, 16 (Tex. Crim.
App. 1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Rodriguez v. State, 90 S.W.3d 340, 358 (Tex. App.--El Paso
2001, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 18, 19
Taylor v. Illinois, 484 U.S. 400, 410, 108 S. Ct. 646,
98 L. Ed. 2d 798 (1988) . . . . . . . . . . . . . . . . . . . . . . . . 18
Taylor v. State, 440 S.W.3d 854, 856 (Tex. App.--Texarkana
2013), aff’d, 450 S.W.3d 528 (Tex. Crim. App.
2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23
Thomas v. State, 444 S.W.3d 4, 9 (Tex. Crim.
App. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28
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CASES: PAGE NO:
Varela v. State, 561 S.W.2d 186 (Tex. Crim. App. 1978). . . 17
Vasquez v. State, 67 S.W.3d 229, 240-41 (Tex. Crim.
App. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
STATUTES: PAGE NO:
TEX. CODE CRIM. PROC. ANN. ART. 21.08 . . . . . . . . . . . . . 23
TEX. CODE CRIM. PROC. ANN. ART. 29.06(3) . . . . . . . . . . 21
TEX. PENAL CODE ANN. § 31.03(e)(4)(A) (West
Supp. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
TEX. R. APP. P. 38.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii
TEX. R. APP. P. 38.2(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . i
CONSTITUTIONS: PAGE NO:
TEX. CONST. ART. 1, § 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
U.S. CONST. AMEND. VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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STATEMENT OF THE CASE
This is a criminal case and an appeal from the trial court’s final
judgment of conviction for theft. See CR, pgs. 95-96.
In October of 2013, a grand jury in Lamar County returned an original
indictment that charged Lowrey with two (2) counts of alleged theft from his
former employer, “Joe Tex Express.” See CR, pg. 4. After a jury trial, a
jury, by its unanimous verdict, found Lowrey guilty of the offense of theft of
Material Aluminum/Copper/Bronze/Brass less than $20,000.00, as charged
in count 2 of the indictment. See RR, Vol. 4, pg. 97; 1Supp. CR, pg. 8. See
also Tex. Penal Code Ann. § 31.03(e)(4)(A) (West Supp. 2014).
After discharging the jury, the trial judge assessed punishment and
sentenced Lowrey to two (2) years confinement in the state jail division but
probated that sentence for five (5) years of community supervision. See RR,
Vol. 4, pgs. 125-126. In its final judgment of conviction, the trial court
assessed a fine of $1,000.00 (probated) along with court costs of $343.00
and restitution to be determined. See CR, pg. 95.
In a timely fashion, Lowrey filed his notice of appeal. See CR, pg. 94.
By this appeal, Lowrey brought four (4) issues/points of error.
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STATEMENT REGARDING ORAL ARGUMENT
The State will waive oral argument. See Tex. R. App. P. 38.2.
-viii-
ISSUES PRESENTED IN REPLY
ISSUE/POINT OF ERROR PRESENTED IN REPLY NO. 1: THE
TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING
THE WRIT OF ATTACHMENT.
ISSUE/POINT OF ERROR PRESENTED IN REPLY NO. 2: THE
TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING
THE MOTION FOR CONTINUANCE.
ISSUE/POINT OF ERROR PRESENTED IN REPLY NO. 3: THE
EVIDENCE WAS LEGALLY-SUFFICIENT FOR THE JURY, AS A
RATIONAL FACT FINDER, TO FIND THAT “JOE TEX EXPRESS”
WAS THE SPECIFIC OWNER OF THE PROPERTY.
ISSUE/POINT OF ERROR PRESENTED IN REPLY NO. 4: THE
ALLEGED VARIANCE, IF ANY, (BETWEEN THE NAME OF THE
SPECIFIC OWNER ALLEGED AND THE NAME PROVED) WAS
IMMATERIAL, AND NOT FATAL.
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CAUSE NO. 06-14-00172-CR
IN THE
COURT OF APPEALS
SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA
____________________________________________________________
GERALD MAC LOWREY, Appellant
V.
THE STATE OF TEXAS, Appellee
____________________________________________________________
ON APPEAL FROM THE 6TH JUDICIAL DISTRICT COURT;
LAMAR COUNTY, TEXAS;
TRIAL COURT NO. 25492; HONORABLE WILL BIARD, JUDGE
____________________________________________________________
APPELLEE’S (STATE’S) BRIEF
____________________________________________________________
TO THE HONORABLE SIXTH COURT OF APPEALS:
COMES NOW, the State of Texas, by and through the elected County
and District Attorney of Lamar County, Gary D. Young, and the Lamar
County and District Attorney’s Office, respectfully submits its Appellee’s
(State’s) Brief under Rule 38.2 of the Texas Rules of Appellate Procedure.
Unless otherwise indicated, Gerald Mac Lowrey will be referred to as
“the appellant” or “Lowrey” and the State of Texas as “the State.”
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STATEMENT OF FACTS
Factual Background.
Since 2008, Joe Tex Xpress, a Texas company in Mount Vernon,
shipped metals machinery, lumber, building materials, railroad materials and
“things like that.” See RR, Vol. 3, pg. 114. According to Angela Dunavant
(Dunavant), the chief financial officer (or CFO) since 2006 (RR, Vol. 3, pgs.
112-113, 115), Joe Tex Xpress shipped for a manufacturer called “Hussey
Copper” (Hussey Copper). See RR, Vol. 3, pgs. 114, 179.
Hussey Copper was located in Eminence, Kentucky. See RR, Vol. 3,
pgs. 99, 166. Joe Tex Xpress shipped copper products from Hussey Copper.
See RR, Vol. 3, pg. 179.
Lowrey was an owner-operator for Joe Tex Xpress. See RR, Vol. 3,
pg. 114. Lowrey was a “contract laborer” (RR, Vol. 3, pg. 150) and subject
to an independent contractor agreement. See RR, Vol. 3, pg. 153;
Defendant’s Exhibit 1.
Lowrey started in 2010, and he was terminated in 2013. See RR, Vol.
3, pgs. 115, 134-135, 162-164, 193. In 2013, some cargo went missing off
of a load that Lowrey was to haul. See RR, Vol. 3, pg. 115.
On May 1, 2013, Lowrey hauled a load (boxes of copper bars) from
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Hussey Copper in Kentucky to El Paso, Texas. See RR, Vol. 3, pgs. 116-
117, 127-128. Lowrey was delivering to two different companies in El Paso,
Schneider Electric and Eaton Electric. See RR, Vol. 3, pgs. 126, 131, 144,
179.
Joe Tex Xpress had the responsibility of taking care of the copper.
See RR, Vol. 3, pg. 117. See also State’s Exhibit 14 (bill of lading). To the
one customer, Schneider Electric, the total weight was 17,089 pounds. See
RR, Vol. 3, pg. 183. To the other customer, the total weight was 28,321
pounds. See RR, Vol. 3, pgs. 183-184. Lowrey wasn’t just carrying copper
bars that were four-inches wide. See RR, Vol. 3, pg. 130. See also RR, Vol.
3, pg. 203 (the State “introduced evidence that the load was loaded down
with copper bars of varying widths”).
On the 1st or 2nd of May, Dunavant got notification from Hussey
Copper that the load had been “shorted.” See RR, Vol. 3, pg. 123.
Dunavant got notification for one open box from Schneider Electric. See
RR, Vol. 3, pgs. 131, 167; State’s Exhibit 12. See also RR, Vol. 3, pg. 144
(“open pallet, missing material”). Dunavant called Lowrey to discuss it with
him. See RR, Vol. 3, pgs. 123-124.
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Lowrey Contacted Law Enforcement.
On May 4, 2013 (RR, Vol. 3, pg. 60), Keith Draper, a patrol deputy
with the Lamar County Sheriff’s Office (RR, Vol. 3, pgs. 23-24), made
contact with Lowrey, who reported that forty-one sticks of flat copper tubing
had been stolen. See RR, Vol. 3, pgs. 25, 33-34. Deputy Draper was
dispatched to an Exxon and a diner on Bonham Street, just west of the loop
in Paris. See RR, Vol. 3, pg. 31. During the interview in the parking lot,
Lowrey said that he had borrowed his daughter-in-law’s pickup and was
going to sell some “scrap.” See RR, Vol. 3, pgs. 26, 33. But, it was unclear
if he sold it or not. See RR, Vol. 3, pg. 33.
Deputy Draper “just wrote a report about it and contacted CID” and
then contacted Joel Chipman by telephone. See RR, Vol. 3, pgs. 27, 43.
Lowrey also wrote a statement. See RR, Vol. 3, pg. 29. According to policy
with the Lamar County Sheriff’s Office, the field encounter with the witness
was recorded (RR, Vol. 3, pgs. 29-31), but it wasn’t placed into evidence to
be saved. See RR, Vol. 3, pg. 30. See also RR, Vol. 3, pgs. 44-45.
CID Investigation.
Since 2009, Joel Chipman (Chipman) worked for the Lamar County
Sheriff’s Office as an investigator in the criminal investigation division. See
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RR, Vol. 3, pgs. 40-41. Previously, Chipman retired from the Paris Police
Department after seventeen (17) years. See RR, Vol. 3, pg. 41. In May of
2013, Chipman was a certified peace officer. See RR, Vol. 3, pg. 42.
On May 4, 2013, Chipman received a call from Deputy Draper, who
said that “he had taken a theft report from Mr. Lowrey.” See RR, Vol. 3, pg.
43. Chipman had an occasion to meet Lowrey before May of 2013. See RR,
Vol. 3, pg. 43.
When Chipman started investigating this theft that Lowrey reported, it
was reported as “copper bars being about a quarter inch thick, four-inches
wide and twelve feet long.” See RR, Vol. 3, pg. 47. They had a silver
colored coating on them that was actually aluminum. See RR, Vol. 3, pg.
47. Chipman characterized the description of this copper theft as
“distinctive.” See RR, Vol. 3, pgs. 48-49. See also State’s Exhibit 2.
On May 15, 2013, Chipman went to Paris Iron and Metal. See RR,
Vol. 3, pgs. 49-50, 73-74. Paris Iron and Metal was located at Seventh
Northwest and Center Street in Paris, Lamar County, Texas. See RR, Vol. 3,
pgs. 49-50. Chipman asked if they had any copper bars; and as soon as he
said that, the person said, “I know exactly what you’re talking about.” See
RR, Vol. 3, pg. 50. Chipman believed it was like 12 bars. See RR, Vol. 3,
-5-
pg. 51. See also State’s Exhibits 2-7; RR, Vol. 3, pgs. 80-81. At least five
bars were the four-inch bars. See RR, Vol. 3, pg. 53. The bars looked like
“they were kept very well.” See RR, Vol. 3, pg. 55.
In addition to taking photographs, Chipman got a receipt that was
issued to Lowrey on May 1, 2013. See RR, Vol. 3, pgs. 56-57. See also
State’s Exhibit 8. Lowrey received $1,896.00 for “790 pounds of number
two copper” at $2.40 a pound. See RR, Vol. 3, pgs. 56-57. See also RR,
Vol. 3, pg. 103.
On May 17, 2013, Chipman interviewed Lowrey, when he arrived,
left on his own, and was not under arrest. See RR, Vol. 3, pgs. 61-62.
Chipman “asked him about the scrap.” See RR, Vol. 3, pg. 63. See also RR,
Vol. 3, pg. 101. During the interview, Lowrey “had a relative that worked
for the phone company and that he gave him old wire and scraps to sell.”
See RR, Vol. 3, pgs. 63, 102. See also RR, Vol. 3, pg. 84. “He said about
400 pounds.” See RR, Vol. 3, pg. 63.
During the May 17th interview, Chipman showed him the receipt. See
RR, Vol. 3, pg. 64. When asked about the fact that it was 110 pounds light,
Lowrey “advised that Chris Woodall had been in the truck when they went
across the scales.” See RR, Vol. 3, pg. 65. See also RR, Vol. 3, pgs. 71,
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103. “Chris Woodall got out of the truck; and Chris Woodall weighs about
110 pounds.” See RR, Vol. 3, pg. 65. See also RR, Vol. 3, pg. 66.
During the interview, Lowrey became loud “pretty quick.” See RR,
Vol. 3, pg. 67. Voices were raised. See RR, Vol. 3, pg. 104. Lowrey was
angry and irritated. See RR, Vol. 3, pg. 105.
During the interview, Lowrey also volunteered that “he had bought
some off another truck driver up in Kentucky or somewhere, that this truck
driver had some scraps, some extra bars that he hadn’t off loaded yet, but he
was going back to the dock with these bars.” See RR, Vol. 3, pg. 67-68. See
also RR, Vol. 3, pgs. 71, 85. “He was supposed to have delivered it
somewhere.” See RR, Vol. 3, pg. 68. Lowrey also said that “he paid $200
for seven or eight sticks of it.” See RR, Vol. 3, pg. 85. See also RR, Vol. 3,
pgs. 102-103.
Afterwards, Lowrey said they went back to the house and picked up
Lacrisha Lowrey (or Lacrisha Woodall), and they went to the casino in
Grant, Oklahoma. See RR, Vol. 3, pgs. 71-72. Lacrisha is Lowrey’s ex
daughter-in-law. See RR, Vol. 3, pg. 106.
At some point, Chipman made the determination that Lowrey was no
longer a victim, but a suspect. See RR, Vol. 3, pgs. 89-90. Chipman made
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that determination after the interview on May 17, 2013. See RR, Vol. 3, pg.
90. Lowrey admitted that he defrauded Paris Iron and Metal on how much
metal that he was selling. See RR, Vol. 3, pgs. 103, 109.
According to Chipman, it was his understanding that the trucking
company was financially responsible for the material, and that they were the
victim in the case. See RR, Vol. 3, pg. 95. The copper was “prepaid” by the
owners in El Paso. See RR, Vol. 3., pg. 95. The seller was Hussey Copper.
See RR, Vol. 3, pg. 95.
Indictment and Jury Trial.
1. The State’s Indictment Charged Lowrey with Theft.
On October 10, 2013, a grand jury in Lamar County returned an
original indictment that charged Lowrey with two (2) felony counts of theft.
See CR, pg. 4. The State’s original indictment alleged the owner of the
property to be “Joe Tex Express.” See CR, pg. 4.
2. The Cause Number Underlying this Appeal Proceeded to a
Jury Trial.
In due course, cause number 25492 proceeded to a jury trial. On
August 4, 2014, the trial court conducted the voir dire proceedings (RR, Vol.
2, pgs. 1, 4), and lawfully impaneled a petit jury. See RR, Vol. 2, pg. 48.
On August 5, 2014, the trial court called the cause number underlying
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this appeal to put “a couple of items we’re going to put on the record.” See
RR, Vol. 3, pg. 6. During the pre-trial conference, the following occurred:
MR. HASLAM: I did one on Mr. Bueno. But I have --
we’re getting ready to go into trial as everybody knows, and the
Court yesterday just instructed me to do it orally rather than
present anything written. So, I don’t have anything written
prepared, so I don’t know. I’m not in a position now where I
can just kind of reverse field and go generate a written one.
THE COURT: Let me see what I’ve got and maybe we
can come up with something. We’re going to go ahead and
start.
See RR, Vol. 3, pg. 11.
At the start of the jury trial, the State presented the indictment, and
Lowrey entered a plea of “not guilty.” As its first witness, the State called
Deputy Draper, who recognized the defendant, Lowrey, in open court. See
RR, Vol. 3, pgs. 25-26. During Draper’s and Chipman’s testimony, the
defense stipulated to the identity of Lowrey. See RR, Vol. 3, pg. 59.
As its third witness, the State called Dunavant; and upon the
conclusion of the State’s direct-examination, defense counsel for Lowrey
argued outside the presence of the jury that he had subpoenaed Raul Bueno,
an employee of Schneider Electric in El Paso. See RR, Vol. 3, pg. 136. The
return of that subpoena was filed on August 5, 2014. See 2Supp. CR, pg. 4.
Defense counsel for Lowrey advised that he got an e-mail from a lawyer in
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Dallas, which stated:
For various reasons, not the least of which is the full day of
travel, I have been informed that Mr. Bueno will NOT be
making it to the trial of your client.
I wish I had better news but the last minute nature of this put
Mr. Bueno and Square D in a difficult position, to say the least.
See CR, pg. 82; RR, Vol. 3, pgs. 136-137.
Defense counsel for Lowrey requested a writ of attachment and
needed “to make a record.” See RR, Vol. 3, pg. 138. After argument, the
trial court denied the writ. See RR, Vol. 3, pgs. 138, 142.
Afterwards, the cross-examination of Dunavant began. See RR, Vol.
3, pg. 143. Upon the conclusion of Dunavant’s testimony, the State called
Craig Skidmore as its last witness; and after his testimony (RR, Vol. 3, pgs.
177-200), the State rested. See RR, Vol. 3, pg. 201.
Subsequently, Lowrey moved for a directed verdict (RR, Vol. 3, pgs.
202-204), which the trial court denied. See RR, Vol. 3, pg. 204. Then,
Lowrey urged the trial judge to “reconsider having Mr. Bueno brought
here.” See RR, Vol. 3, pg. 204. After further argument, the trial judge
remarked, “I’m going to deny your request.” See RR, Vol. 3, pg. 206. See
also RR, Vol. 3, pg. 208 (“The motion will be denied.”). However, the trial
judge also entered a “limine order that the State cannot argue that during its
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closing that the removed some of the other widths from other crates.” See
RR, Vol. 3, pg. 206.
Lowrey’s Case-in-Chief.
During his case-in-chief, Lowrey began and concluded his testimony
on the first day of trial. See RR, Vol. 3, pgs. 209-279. Because a juror
needed “to check the time because I have one in daycare,” the trial court
recessed the trial for that day. See RR, Vol. 3, pg. 280.
On the second day of the jury trial, August 6th (RR, Vol. 4, pg. 1), the
trial court pre-admitted the defendant’s exhibits 4, 5 and 6. See RR, Vol. 4,
pg. 6. On the morning of August 6th, Lowrey also filed a motion for
continuance (CR, pgs. 68-82) “based on the nonappearance of the witness
Bueno.” See RR, Vol. 4, pgs. 6-7. The trial court denied that motion and
signed the order to that effect. See RR, Vol. 4, pg. 7; CR, pg. 83.
As the guilt-innocence phase concluded, the trial court read its charge
to the jury. See RR, Vol. 4, pg. 68; 1Supp. CR, pgs. 3-7. After closing
arguments, the jury retired to begin its deliberations (RR, Vol. 4, pgs. 94-
95); and upon the conclusion of its deliberations, the jury returned a verdict.
See 1Supp. CR, pg. 8. By its verdict, the jury found Lowrey guilty of the
offense of theft of Material Aluminum/Copper/Bronze/Brass less than
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$20,000.00, as charged in count 2 of the indictment. See RR, Vol. 4, pg. 97;
1Supp. CR, pg. 8. The verdict was unanimous. See RR, Vol. 4, pg. 97. The
trial court then discharged the jury. See RR, Vol. 4, pgs. 97-99.
Punishment Phase of the Jury Trial.
During the punishment phase, the State offered final judgments of
conviction, and then rested. See RR, Vol. 4, pgs. 101-102. Lowrey
presented his mitigation evidence (RR, Vol. 4, pgs. 102-120), and rested.
See RR, Vol. 4, pg. 121.
After brief argument from both parties, the trial court found Lowrey
guilty of theft, as alleged in count 2 of the indictment. See RR, Vol. 4, pg.
125. The trial judge then assessed punishment and sentenced Lowrey to two
(2) years confinement in the state jail division but probated that sentence for
five (5) years of community supervision. See RR, Vol. 4, pgs. 125-126.
On August 6th, the trial court signed its final judgment of conviction
by jury (CR, pgs. 95-96), that was later filed of record on August 26, 2014.
See CR, pg. 95. On August 12, 2014, Lowrey timely filed his notice of
appeal. See CR, pg. 94.
Proceedings in this Court of Appeals.
In this Court, Lowrey filed a notice of appeal on or about August 18,
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2014. The District Clerk of Lamar County filed the Clerk’s Record on or
about November 14, 2014. The official court reporter filed the Reporter’s
Record on or about December 9, 2014. Subsequently, the District Clerk of
Lamar County filed supplemental Clerk’s Records on or about December
29th and February 9, 2015.
On or about February 12, 2015, Lowrey filed his brief. On or about
March 16th, the State filed the first motion (of two motions) to extend the
time to file its brief, which this Court granted. On or about April 15, 2015,
the State filed its second motion for extension of time to file its brief, which
this Court granted until May 6th. The State filed its brief on May 6, 2015.
SUMMARY OF THE ARGUMENT
By this appeal, Lowrey brought four (4) issues/points of error which
alleged that (1) the trial court abused its discretion in denying a writ of
attachment for a defense witness, Raul Bueno (Bueno); (2) the trial court
abused its discretion in denying a motion for continuance based on the non-
appearance of the witness, Bueno; (3) the trial court erred in holding the
evidence to be sufficient as to the identity of the victim; and (4) the trial
court erred in holding the evidence to be sufficient because of a fatal
variance between the name of the victim alleged (“Joe Tex Express”) and
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“Joe Tex Xpress, Inc.”).
Upon final submission, this Court should overrule each of these
issues/points of error, and affirm, for the following reasons: (1) the trial
court did not abuse its discretion in denying the writ of attachment because
(a) Lowrey did not carry his burden to show materiality as to the witness,
Bueno; and (b) Lowrey did not exercise diligence in timely serving Bueno;
(2) the trial court did not abuse its discretion in denying the motion for
continuance for sub-reasons (a)-(b) above; (3) the evidence was legally-
sufficient for a rational jury to find “Joe Tex Express” was the specific
owner of the property; and (4) the alleged variance, if any, between the name
alleged and the name proved was not fatal.
ARGUMENT AND AUTHORITIES
ISSUE/POINT OF ERROR PRESENTED IN REPLY NO. 1: THE
TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING
THE WRIT OF ATTACHMENT.
A. Standard of Review: Abuse of Discretion.
With his first issue/point of error on appeal, Lowrey complained that
he was entitled to compulsory process to secure the presence of a witness.
See Appellant’s Brief, pgs. 2, 15-20. In the present case, the trial court
initially ruled, “I’m going to tell you, I’m going to deny your request for a
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writ of attachment.” See RR, Vol. 3, pg. 138. Later, the trial court stated:
THE COURT: Well, the Court’s recollection of the
testimony was that the boxes are easily opened. There was no
evidence that any of the other boxes were opened, just the one.
So, the Court is going to deny your request for the writ. And
you can obviously ask on cross.
See RR, Vol. 3, pgs. 141-142.
This Court should review the trial court’s decision to deny the writ of
attachment using the abuse-of-discretion standard. See Clark v. State, 305
S.W.3d 351, 355 (Tex. App.--Houston [14th Dist.] 2010), aff’d, 365 S.W.3d
333 (Tex. Crim. App. 2012); Emenhiser v. State, 196 S.W.3d 915, 921 (Tex.
App.--Fort Worth 2006, pet. ref’d); Rodriguez v. State, 90 S.W.3d 340, 358
(Tex. App.--El Paso 2001, pet. ref’d).
B. The Right to Compulsory Process Was Not Absolute.
Criminal defendants have a right to compulsory process for obtaining
witnesses. See U.S. CONST. amend. VI; TEX. CONST. art. I, § 10. But the
right to compulsory process is not absolute. See Emenhiser, 196 S.W.3d at
921.
“The Sixth Amendment does not guarantee, however, the right to
secure the attendance and testimony of any and all witnesses; rather, it
guarantees only compulsory process for obtaining witnesses whose
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testimony would be both material and favorable to the defense.” See
Coleman v. State, 966 S.W.2d 525, 527-28 (Tex. Crim. App. 1998). “To
exercise the federal constitutional compulsory process right, the defendant
must make a plausible showing to the trial court, by sworn evidence or
agreed facts, that the witness’ testimony would be both material and
favorable to the defense.” See id. at 528. “A defendant who has not had an
opportunity to interview a witness may make the necessary showing by
establishing the matters to which the witness might testify and the relevance
and importance of those matters to the success of the defense.” See id.
It is the burden of the appellant, Lowrey, to show that the testimony
for which he seeks compulsory process was material and necessary to his
defense. See Castillo v. State, 901 S.W.2d 550, 553 (Tex. App.--El Paso
1995, pet. ref’d) (citing Hardin v. State, 471 S.W.2d 60, 62 (Tex. Crim. App.
1971)). In Hardin, defense counsel took the stand and testified that although
he believed that missing witnesses would support the defendant’s alibi, he
did not know what the witnesses would say. See Castillo, 901 S.W.2d at
553. Counsel’s mere belief that a witness would support the defense’s case
is insufficient to establish materiality. See Emenhiser, 196 S.W.3d at 921
(citing Castillo, 901 S.W.2d at 553; Hardin, 471 S.W.2d at 62)). Similarly,
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in Varela v. State, 561 S.W.2d 186 (Tex. Crim. App. 1978), the Court held
that the defendant’s testimony that a missing witness might say something to
the defendant’s benefit was not sufficient to show that the witness was
material to the defense. See Castillo, 901 S.W.2d at 553 (citing Varela, 561
S.W.2d at 191).
1. Lowrey Did Not Carry His Burden to Show Materiality.
In the present case, Lowrey did not carry his burden to show that
Bueno’s testimony was material and necessary to his defense. See Castillo,
901 S.W.2d at 553 (citing Hardin, 471 S.W.2d at 62); Varela, 561 S.W.2d at
191. The State requested defense counsel to “write out what he would have
this person testify to, I can -- if he’ll write it out, I can see if I can stipulate to
it to avoid the need of a writ for somebody in El Paso.” See RR, Vol. 3, pg.
137. See also RR, Vol. 3, pg. 142. But, nothing was ever written as to what
Bueno would testify to. See Coleman, 966 S.W.2d at 528 (to exercise the
federal constitutional compulsory process right, the defendant must make a
plausible showing to the trial court, by sworn evidence or agreed facts).
Instead of making such a plausible showing to the trial court by
sworn1 evidence or agreed facts, see id, defense counsel argued that the
testimony was needed to “unring a bell” (RR, Vol. 3, pg. 139, 140) and to
1
Lowrey’s motion for continuance was unsworn. See CR, pg. 71.
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rebut the inference, which was allegedly created on direct-examination, that
“there were other boxes opened on this shipment.” See RR, Vol. 3, pg. 137.
Instead of sworn evidence or agreed facts from Lowrey, the trial court was
left with defense counsel’s “mere belief” as to what Bueno would testify to,
and counsel’s “mere belief” was insufficient to establish materiality. See
Emenhiser, 196 S.W.3d at 921 (citing Castillo, 901 S.W.2d at 553; Hardin,
471 S.W.2d at 62). Further, the trial court was left with its recollection of
the testimony (RR, Vol. 3, pg. 141), and that “[t]here was no evidence that
any of the other boxes were opened, just the one.” See RR, Vol. 3, pg. 141-
142. Because the trial court could have reasonably concluded that Lowrey
did not carry his burden to show materiality, the trial court did not abuse its
discretion in denying the writ of attachment. See Clark, 305 S.W.3d at 355,
Emenhiser, 196 S.W.3d at 921; Rodriguez, 90 S.W.3d at 358.
2. Lowrey Did Not Exercise Diligence to Subpoena Witness.
Moreover, the right to compulsory process is dependent upon an
accused’s initiative, and the nature of the right requires that its effective use
be preceded by “deliberate planning and affirmative conduct” by the
defendant. See Rodriguez, 90 S.W.3d at 358 (quoting Taylor v. Illinois, 484
U.S. 400, 410, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988)). In Driggers v. State,
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155 Tex. Crim. 475, 236 S.W.2d 497 (1950), the Texas Court of Criminal
Appeals addressed a subpoena for the attendance of a witness that was
issued six days before the trial date, and held the following:
It appears to us that the process was not issued in time and that
the delay in having the subpoena issued is unexplained. The
court before whom the hearing was had has rather a wide
discretion in such matters, and this court will not hold that he
abused the same unless it definitely appears from the record that
he has done so.
See id, 155 Tex. Crim. at 477, 236 S.W.2d at 498.
In the present case, Lowrey issued a subpoena on July 25, 2014, a
Friday. See 2Supp. CR, pg. 3. According to the officer’s return, Cynthia
Nava (“SCH 3453”) served Raul Bueno on July 29, 2014 (2Supp. CR, pg.
4), which was a Tuesday before the jury trial began with voir dire
proceedings on Monday, August 4, 2014. See RR, Vol. 2, pg. 1. In serving
a defense witness (Bueno) six days before trial, as in Driggers, the trial court
could have reasonably concluded that Lowrey’s right to compulsory process
was not effectively used by “deliberate planning and affirmative conduct.”
See Rodriguez, 90 S.W.3d at 358. See also Gentry v. State, 770 S.W.2d 780,
787 (Tex. Crim. App. 1988) (the appellant has failed to prove he acted
diligently in attempting to obtain the witness’ presence in court). For this
second reason, the trial court did not abuse its discretion in denying the writ
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of attachment.
In conclusion, the trial court did not abuse its discretion in denying the
writ of attachment. Therefore, Lowrey’s first issue/point of error should be
overruled.
ISSUE/POINT OF ERROR PRESENTED IN REPLY NO. 2: THE
TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING
THE MOTION FOR CONTINUANCE.
A. Standard of Review: Abuse of Discretion.
This Court should review a trial court’s denial of a mid-trial
continuance on an abuse of discretion standard. See Vasquez v. State, 67
S.W.3d 229, 240-41 (Tex. Crim. App. 2002).
Mid-trial, on the morning of August 6th, Lowrey filed his motion for
continuance (CR, pgs. 68-82) “based on the nonappearance of the witness
Bueno.” See RR, Vol. 4, pgs. 6-7. The trial court denied that motion and
signed the order to that effect. See RR, Vol. 4, pg. 7; CR, pg. 83.
B. The Trial Court Did Not Abuse its Discretion in Denying
Lowrey’s Motion for Continuance.
1. Lowrey’s Motion Made No Mention of the Statutory
Requirement Under Article 29.06(3).
In the present case, Lowrey’s August 6th motion for continuance made
no mention, as required by statute, of “[t]he facts which are expected to be
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proved by the witness, and it must appear to the court that they are material.”
See Tex. Code Crim. Proc. Ann. art. 29.06(3). See also Gentry, 770 S.W.2d
at 786-87 (applying Article 29.06 requirements to motions for continuance
made during the course of trial under Article 29.13). Even if the motion had
complied with the statutory requirement under article 29.06(3), the trial
court could have reasonably concluded that Lowrey did not carry his burden
to show materiality. Therefore, the trial court did not abuse its discretion in
denying Lowrey’s mid-trial motion for continuance.
2. Lowrey’s Motion Was Unsworn.
In Gentry, there was no written sworn motion for continuance. See
Gentry, 770 S.W.2d at 786. Since the motion is not self-proving, the Texas
Court of Criminal Appeals held in Gentry that the Texas Court of Criminal
Appeals also held that “the record must contain an affidavit or otherwise
reflect what the absent witness would have testified to.” See id.
In the present case, Lowrey’s motion was written, but unsworn. See
CR, pg. 71. Further, Lowrey’s motion did not contain an affidavit, that was
signed and notarized, and did not reflect what Bueno would have testified to.
See CR, pg. 71; Gentry, 770 S.W.2d at 786.
Accordingly, the trial court did not abuse its discretion in denying the
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mid-trial motion for continuance. Lowrey’s second issue/point of error
should be overruled.
ISSUE/POINT OF ERROR PRESENTED IN REPLY NO. 3: THE
EVIDENCE WAS LEGALLY-SUFFICIENT FOR THE JURY, AS A
RATIONAL FACT FINDER, TO FIND THAT “JOE TEX EXPRESS”
WAS THE SPECIFIC OWNER OF THE PROPERTY.
A. Standard of Review: Sufficiency of the Evidence.
With his third issue/point of error, Lowrey complained that the trial
court erred in holding the evidence to be sufficient to sustain the conviction
because the evidence was insufficient to prove the identity of the victim, as
alleged in the indictment. See Appellant’s Brief, pg. 21.
In evaluating legal sufficiency, this Court should review all the
evidence in the light most favorable to the trial court’s judgment to
determine whether any rational jury could have found the essential elements
of theft beyond a reasonable doubt. See Taylor v. State, 440 S.W.3d 854,
856 (Tex. App.--Texarkana 2013), aff’d, 450 S.W.3d 528 (Tex. Crim. App.
2014) (citing Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010);
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560
(1979)). Under Jackson, when reviewing the sufficiency of the evidence,
this Court views all the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential
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elements of the crime beyond a reasonable doubt. See Jackson, 443 U.S. at
318-19.
This Court examines legal sufficiency under the direction of the
Brooks opinion, while giving deference to the responsibility of the jury “to
fairly resolve conflicts in testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.” See Taylor, 440
S.W.3d at 856; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)
(citing Jackson, 443 U.S. at 318-19); Clayton v. State, 235 S.W.3d 772, 778
(Tex. Crim. App. 2007).
B. The Evidence Was Legally-Sufficient to Prove the Existence
of the Specific Owner, i.e., an Entity Known as “Joe Tex Xpress”.
Article 21.08 of the Texas Code of Criminal Procedure provided the
following:
Where one person owns the property, and another person has
the possession of the same, the ownership thereof may be
alleged to be in either. Where property is owned in common, or
jointly, by two or more persons, the ownership may be alleged
to be in all or either of them. When the property belongs to the
estate of a deceased person, the ownership may be alleged to be
in the executor, administrator or heirs of such deceased person,
or in any one of such heirs. Where the ownership of the
property is unknown to the grand jury, it shall be sufficient to
allege that fact.
See Tex. Code Crim. Proc. Ann. art. 21.08.
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1. The Existence of the Specific Owner is an Element of the
Offense, But Not the Name.
The existence of the specific owner is an element, but not the name.
See Byrd v. State, 336 S.W.3d 242, 251 (Tex. Crim. App. 2011). Nowhere
in the penal code is the name of the owner made a substantive element of
theft. See id (citing Freeman v. State, 707 S.W.2d 597, 602-03 (Tex. Crim.
App. 1986) (plurality op.) (noting that the name of the owner of property is
not a part of the definition of theft, although the name of the owner must be
alleged in the charging instrument)).
In Byrd, the Texas Court of Criminal Appeals reasoned that the Code
of Criminal Procedure, as a matter of state law, requires the State to allege
the name of the owner of property in its charging instrument. See Byrd, 336
S.W.3d at 251, n. 48. In Byrd, the Court of Criminal Appeals also held that:
When an entity, such as a corporation, owns property, the
traditionally preferable practice had been to allege ownership in
a natural person acting for the corporation. But as Judge
Clinton noted, this practice developed in the early twentieth
century before the adoption of the 1974 Penal Code when the
definition of “owner” for purposes of the theft statutes was
much narrower. Judge Clinton explained that, under the current
Penal Code, a corporation may both own and have actual
possession of property. Thus it is perfectly permissible, and
sometimes preferable, to now allege the corporation--Wal-Mart,
for example--as the owner of the property and then call any
agent or employee who holds a relevant position in the
company to testify that the corporation did not give effective
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consent for a person to steal or shoplift its property.
Although the name of the owner is not a substantive
element of theft, the State is required to prove, beyond a
reasonable doubt, that the person (or entity) alleged in the
indictment as the owner is the same person (or entity)--
regardless of the name--as shown by the evidence. . . . In sum, it
is the identity of the person, not his formal name, that controls
and guides the sufficiency of the evidence review.
See id. at 252-53 (references to footnotes omitted).
In applying the Byrd rationale above, the State’s indictment alleged
“Joe Tex Express” as the owner thereof. See CR, pg. 4. During the trial on
August 5, 2014, Dunavant testified that she worked for “Joe Tex Xpress” in
an office in Mount Vernon, Texas since 2006. See RR, Vol. 3, pgs. 112-113.
Dunavant testified that she was the “CFO” or chief financial officer, and that
she was personally familiar with Lowrey as an “owner-operator for our
company.” See RR, Vol. 3, pg. 114. Dunavant also testified, as follows:
Q. Okay. And what type of things does your
company ship?
A. Metals, machinery, lumber, building materials,
railroad materials, things like that.
See RR, Vol. 3, pg. 114. See also Defendant’s Exhibit 1.
Viewing the evidence above in the light most favorable to the jury’s
verdict, a rational fact finder could have found, beyond a reasonable doubt,
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that “Joe Tex Xpress” was an “entity” and the specific owner, as alleged in
the indictment. See CR, pg. 4. In addition to the references to a “company”
above, a rational fact finder could have inferred that a chief financial officer
would act as an agent or employee of the “entity.” Further, a rational fact
finder could have found, beyond a reasonable doubt, that “Joe Tex Xpress”
was the same entity--regardless of the name that included “Inc.”--as shown
by the evidence. See Byrd, 336 S.W.3d at 252-53. Here, there was no
evidence of any “person” that could be identified as “Joe Tex”; rather, the
identity of the entity (“Joe Tex Xpress”) remained the same and consistent
throughout the entire jury trial.
Thus, the evidence was legally-sufficient for a rational jury to find,
beyond a reasonable doubt, that the owner was an entity known as “Joe Tex
Xpress.” Accordingly, Lowrey’s third issue/point of error should be
overruled.
ISSUE/POINT OF ERROR PRESENTED IN REPLY NO. 4: THE
ALLEGED VARIANCE, IF ANY, (BETWEEN THE NAME OF THE
SPECIFIC OWNER ALLEGED AND THE NAME PROVED) WAS
IMMATERIAL, AND NOT FATAL.
A. Standard of Review: Material and Immaterial Variances.
With his final issue, Lowrey alleged that there was a material and fatal
variance between the name alleged and the name proved. See Appellant’s
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Brief, pg. 21. There are two types of variances in an evidentiary-sufficiency
analysis: material variances and immaterial variances. See, e.g., Thomas v.
State, 444 S.W.3d 4, 9 (Tex. Crim. App. 2014).
Immaterial variances do not affect the validity of a criminal
conviction, and the Texas Court of Criminal Appeals has held that a
hypothetically correct jury charge need not incorporate allegations that
would give rise to only immaterial variances. See id (citing Geick v. State,
349 S.W.3d 542, 545 (Tex. Crim. App. 2011); Gollihar v. State, 46 S.W.3d
243, 256 (Tex. Crim. App. 2001) (holding that the fact that the indictment
alleged the incorrect serial number for a stolen Go Kart was immaterial and
did not warrant reversal of the conviction because the serial number was not
a statutory element and the appellant was not prejudiced by use of the
incorrect serial number)). However, a material variance renders a conviction
infirm, and the only remedy is to render an acquittal. See Thomas, 444
S.W.3d at 9 (citing Cada v. State, 334 S.W.3d 766, 776 (Tex. Crim. App.
2011) (reversing the judgment of the court of appeals and rendering an
acquittal when there was a material variance between the indictment and the
proof adduced at trial); Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App.
2000) (“If the evidence is insufficient to support [the] conviction, the
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remedy is acquittal.”).
B. The Alleged Variance, If Any, Between the Name Alleged
and the Name Proved Was Immaterial.
As previously explained above, the existence of the specific owner is
an element, but not the name. See Byrd, 336 S.W.3d at 251. Nowhere in the
penal code is the name of the owner made a substantive element of theft.
See id.
In the present case, the alleged variance, if any, between the name
alleged (i.e. “Joe Tex Express”) (CR, pg. 4) and the name proved (“Joe Tex
Xpress, Inc.”) (e.g. Defendant’s Exhibit 1) was immaterial because the name
of the specific owner was not a substantive element of theft, see id; and a
hypothetically correct jury charge need not incorporate allegations that
would give rise to only immaterial variances. See Thomas, 444 S.W.3d at 9.
Also, the Texas Court of Criminal Appeals held in Middleton v. State, 476
S.W.2d 14 (Tex. Crim. App. 1972) that “there is nothing to indicate that the
omission of the averment that the Humble Oil and Refining Company is a
corporation could have misled the appellant.” See id. at 16. See also
Boyette v. State, 632 S.W.3d 915, 917 (Tex. App.--Houston [14th Dist.]
1982, pet. ref’d).
In Boyette, “Jetronics Inc.” was a small company dealing in the sale of
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electronic, radar and aircraft equipment. See id. at 916. The appellant was
the company bookkeeper which authorized her to write checks on the
corporation accounts. See id. at 917. The evidence at trial was undisputed
that in September and October of 1978, the appellant wrote two checks for
her own benefit on a Jetronics’ account; and a jury convicted her of felony
theft. See id.
In Boyette, the appellant maintained that the trial court erred in
entering judgment and in failing to set aside her conviction and grant her a
new trial because there was a fatal variance between the name alleged in the
indictment and the name proved, thereby making the evidence insufficient to
establish ownership in the named owner. See id. Specifically, the appellant
pointed out the indictment alleged ownership of the stolen property in
“Jetronics,” when the true name of the owner as shown in the evidence was
“Jetronics, Inc.” See id.
In Boyette, however, the court of appeals disagreed by not seeing this
variance as fatal, nor did the court of appeals believe the evidence was
insufficient to establish ownership of the stolen property. See id. The
Boyette Court reasoned that it was an established principle of Texas criminal
law that all essential averments in an indictment must be proved as alleged.
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See id. Even though the “true” name of the owner was Jetronics, Inc., the
Boyette Court reasoned that the testimony was uncontroverted that Jetronics
and Jetronics, Inc. were one and the same, and that Jetronics, Inc. was
generally referred to as Jetronics. See id. In Boyette, the court of appeals
saw no variance between the name alleged in the indictment and the name
proved. See id. If a variance did exist at any point in the testimony, it was
not of a fatal or material nature when seen in light of the overall testimony.
See id.
Clearly, the Boyette rationale applied to the present facts and
circumstances, and the alleged variance between the name alleged (i.e. “Joe
Tex Express”) and the name proved (“Joe Tex Xpress, Inc.”) was not fatal.
See id. Throughout Lowrey’s trial, the testimony was uncontroverted that
“Joe Tex Express” and “Joe Tex Xpress, Inc.” were “one and the same”
trucking company that contracted with Lowrey as an owner-operator to haul
loads. See RR, Vol. 3, pg. 114; Defendant’s Exhibit 1. If a variance did
exist at any point in the testimony, as in Boyette, it was not of a fatal or
material nature when seen in light of the overall testimony. See id.
Therefore, Lowrey’s fourth and final issue/point of error should be
overruled.
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PRAYER
WHEREFORE PREMISES CONSIDERED, the State of Texas prays
that upon final submission without oral argument, this Court affirm the trial
court’s final judgment of conviction, adjudge court costs against the
appellant, and for such other and further relief, both at law and in equity, to
which it may be justly and legally entitled.
Respectfully submitted,
Gary D. Young
Lamar County & District Attorney
Lamar County Courthouse
119 North Main
Paris, Texas 75460
(903) 737-2470
(903) 737-2455 (fax)
By:________________________________
Gary D. Young, County Attorney
SBN# 00785298
ATTORNEYS FOR STATE OF TEXAS
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CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,
the “Appellee’s (State’s) Brief” was a computer-generated document and
contained 7997 words--not including the Appendix, if any. The undersigned
attorney certified that he relied on the word count of the computer program,
which was used to prepare this document.
______________________________
GARY D. YOUNG
gyoung@co.lamar.tx.us
CERTIFICATE OF SERVICE
This is to certify that in accordance with Tex. R. App. P. 9.5, a true
copy of the “Appellee’s (State’s) Brief” has been served on the 6th day of
May, 2015 upon the following:
Gary L. Waite
104 Lamar Avenue
Paris, TX 75460
______________________________
GARY D. YOUNG
gyoung@co.lamar.tx.us
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