                                                                                    ACCEPTED
                                                                                03-14-00407-CR
                                                                                        5686688
                                                                     THIRD COURT OF APPEALS
                                                                                AUSTIN, TEXAS
                                                                          6/15/2015 11:41:47 PM
                                                                              JEFFREY D. KYLE
                                                                                         CLERK
                    No. 03-14-00407-CR
__________________________________________________________
                                                     FILED IN
                                              3rd COURT OF APPEALS
       IN THE COURT OF APPEALS FOR THE THIRD       AUSTIN, TEXAS
                   DISTRICT OF TEXAS          6/15/2015 11:41:47 PM
__________________________________________________________
                                                  JEFFREY D. KYLE
                                                       Clerk
                   JERRYL ROBINSON, Appellant

                                  v.

               THE STATE OF TEXAS, Appellee
__________________________________________________________

On Appeal from the 207th Judicial District Court of Comal County, Texas
                       Cause No. CR2013-349
           Honorable Gary L. Steel, District Judge Presiding
 __________________________________________________________

                  BRIEF FOR THE STATE
__________________________________________________________

                                                          Jennifer Tharp
                                                Criminal District Attorney

                                                                        By
                                                        Joshua D. Presley
                                                          SBN: 24088254
                                               Assistant District Attorney
                                         150 N. Seguin Avenue, Suite #307
                                                           (830) 221-1300
                                                       Fax (830) 608-2008
                                              New Braunfels, Texas 78130
                                            E-mail: preslj@co.comal.tx.us
                                                    Attorney for the State


                Oral Argument Is Not Requested
                     Identity of Parties and Counsel

              Attorneys for the Appellant Nathaniel Paul Fox

AT TRIAL
Michael Zamora
211 Babcock Rd.
San Antonio, TX 78201
Telephone: (210) 738-0067
Facsimile: (830) 980-2021

David M. Collins
206 E. Locust St.
San Antonio, TX 72212
Telephone: (210) 212-6700
Facsimile: (210) 249-0116

ON APPEAL
Marilee H. Brown
391 Landa Street
New Braunfels, Texas 78130
Telephone: (830) 629-6955
Facsimile: (830) 629-2559
Email: marilee@hazelbrownlaw.com


               Attorneys for the Appellee, The State of Texas

AT TRIAL
Abigail Whitaker
Assistant District Attorney
COMAL COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE
150 N. Seguin Avenue, Suite 307
New Braunfels, Texas 78130
Telephone: (830) 221-1300
Facsimile: (830) 608-2008
Email: whitaa@co.comal.tx.us




                                     ii
Christine Rankin
Assistant District Attorney
COMAL COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE
150 N. Seguin Avenue, Suite 307
New Braunfels, Texas 78130
Telephone: (830) 221-1300
Facsimile: (830) 608-2008
Email: rankic@co.comal.tx.us


ON APPEAL
Joshua D. Presley
SBN# 24088254
Assistant District Attorney
COMAL COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE
150 N. Seguin Avenue, Suite 307
New Braunfels, Texas 78130
Telephone: (830) 221-1300
Facsimile: (830) 608-2008
Email: preslj@co.comal.tx.us




                            ii
                                              Table of Contents

Index of Authorities ...................................................................................................v

Statement of the Case............................................................................................... ix

Issues Presented .........................................................................................................2

Statement of Facts ......................................................................................................3

Summary of the Argument.........................................................................................6

         1. Appellant’s Speedy Indictment Claim Fails Under Texas Case Law...8

         A. Appellant Failed to Preserve Any Error by Not Correctly Filing His
         Application, Urging a Hearing, Obtaining a Ruling and Appealing Any
         Adverse Ruling Pretrial ...................................................................................8

         B. Even if Appellant had Preserved the Issue, His Claim Was Moot
         When an Indictment Was Returned Before Any Hearing on His
         Application ....................................................................................................11

         C. Even if a Full Barker Analysis Was Conducted, the Trial Court
         Would Not Have Erred in Finding No Violation ..........................................14

         2. Appellant Cannot Show Ineffective Assistance of Counsel on Appeal
               ............................................................................................................25

                  Ineffective Assistance of Counsel Standard of Review on Appeal ......25

         A. Appellant Cannot Show Ineffective Assistance from Mr. Zamora ..........29

         B. Mr. Collins Was Not Ineffective for Failing to Dispute Credible
         Evidence, Particularly Where Conviction for the "Lesser" Offense
         Would Still Subject Appellant to the Same Range of Punishment ...............30

         C. Mr. Collins Was Not Ineffective for Obtaining a Directed Verdict
         on a Lesser-Included Offense When the "Lesser" Offense Had the Same
         Range of Punishment .....................................................................................31
                                                            iii
         D. Because Appellant's Suggested Lines of Inquiry Would Have Hurt
         Him at Trial, Mr. Collins Was Not Ineffective for Failing to Further
         Cross-Examine the Witness ...........................................................................34

         E. Appellant Argues Outside the Record, and the Only Evidence in the
         Record Indicates Mr. Collins Was Not Ineffective for Failing to
         Investigate ......................................................................................................37

         3. The Evidence Was Legally Sufficient to Establish That Appellant
         Was a Party to the Theft and to Establish Value .....................................38


Prayer .......................................................................................................................47

Certificate of Service ...............................................................................................48

Certificate of Compliance ........................................................................................49




                                                              iv
                                            Index of Authorities

                                Statutes, Rules & Secondary Sources

Tex. Crim. Proc. Code Ann. art. 12.01
(West, Westlaw through 2013 Sess.) ....................................................................... 13

Tex. Code Crim. Proc. Ann. art. 15.14
(West, Westlaw through 2013 Sess.) .................................................................11, 13

Tex. Code Crim. Proc. Ann. art. 21.09
(West, Westlaw through 2013 Sess.) ....................................................................... 45

42 Tex. Prac., Criminal Practice And
Procedure § 28:52 (3d ed.). ...................................................................................... 11

                                                         Cases


Bara v. Major Funding Corp. Liquidating
Trust, 876 S.W.2d 469 (Tex. App.—Austin
1994), writ denied (Nov. 3, 1994) ........................................................................... 23

Barker v. Wingo, 407 U.S. 514 (1972) ............................................................... 9, 18

Bollinger v. State, 224 S.W.3d 768 (Tex. App.
—Eastland 2007, pet. ref’d) ..................................................................................... 11

Brown v. State, 163 S.W.3d 818 (Tex. App.—
Dallas 2005, pet. ref’d) ............................................................................................ 14

Brown v. State, 866 S.W.2d 675 (Tex. App.—
Houston [1st Dist.] 1993, pet. ref’d) ........................................................................ 37

Byrd v. State, 336 S.W.3d 242 (Tex. Crim.
App. 2011) .............................................................................................................. 45



                                                             v
Cannon v. State, 668 S.W.2d 401 (Tex. Crim.
App. 1984)................................................................................................................ 27

Cantu v. State, 253 S.W.3d 273 (Tex. Crim.
App. 2008)................................................................................................................ 16

Carmona v. State, 880 S.W.2d 227 (Tex. App.
—Austin 1994), vacated on other grounds, 941
S.W.2d 949 (Tex. Crim. App. 1997). ...................................................................... 36

Coble v. State, 501 S.W.2d 344 (Tex. Crim. App.
1973) ........................................................................................................................ 35

Cothern v. State, 02-13-00466-CR, 2015 WL
2169248 (Tex. App.—Fort Worth May 7, 2015,
no. pet. h.) (not designated for publication) ............................................................ 45

Cowart v. State, 03-99-00518-CR, 2000 WL
1227781 (Tex. App.—Austin Aug. 31, 2000, no
pet.) (not designated for publication) ........................................................................ 8

Delrio v. State, 840 S.W.2d 443 (Tex.
Crim. App. 1992) .................................................................................................... 27

Dragoo v. State, 96 S.W.3d 308 (Tex.
Crim. App. 2003) ................................................................ 15, 16, 18, 19, 22, 24, 25

Druery v. State, 225 S.W.3d 491 (Tex. Crim.
App. 2007)................................................................................................................ 32

Ervin v. State, 331 S.W.3d 49 (Tex. App.—
Houston [1st Dist.] 2010, pet. ref’d) ........................................................................ 38

Ex parte Countryman, 226 S.W.3d 435
(Tex. Crim. App. 2007)....................................................................12, 13, 14, 15, 29

Ex parte Martin, 6 S.W.3d 524 (Tex. Crim.
App. 1999)................................................................................................................ 11



                                                              vi
Ex parte Preston, 833 S.W.2d 515 (Tex. Crim.
App. 1992)................................................................................................................ 37

Ex parte Torres, 943 S.W.2d 469 (Tex. Crim.
App. 1997)................................................................................................................ 28

Felters v. State, 147 S.W.3d 488 (Tex. App.—
Fort Worth 2004, pet. ref’d) ...................................................................40, 41, 42, 43

Gonzales v. State, 435 S.W.3d 801 (Tex. Crim.
App. 2014) .............................................................................................................. 22

Goodspeed v. State, 187 S.W.3d 390 (Tex. Crim.
App. 2005) .............................................................................................................. 28

Green v. State, 14-08-00075-CR, 2009 WL
136917 (Tex. App.—Houston [14th Dist.] Jan.
20, 2009, no pet.) (mem. op., not designated for
publication) ............................................................................................................. 24

Griffis v. State, 441 S.W.3d 599 (Tex. App.—
San Antonio 2014) ................................................................................................... 29

Guevara v. State, 152 S.W.3d 45 (Tex. Crim.
App. 2004) .............................................................................................................. 40

Haynes v. State, 273 S.W.3d 183 (Tex. Crim.
App. 2008)................................................................................................................ 32

Henson v. State, 407 S.W.3d 764 (Tex. Crim.
App. 2013), cert. denied, 134 S. Ct. 934 (2014).................................................. 8, 17

Hernandez v. State, 127 S.W.3d 768 (Tex. Crim.
App. 2004)................................................................................................................ 23

Jackson v. State, 973 S.W.2d 954 (Tex. Crim.
App. 1998)................................................................................................................ 28

Jackson v. Virginia, 443 U.S. 307 (1979)................................................................ 39


                                                            vii
Kiffe v. State, 361 S.W.3d 104 (Tex. App.—
Houston [1st Dist.] 2011, pet. ref’d) ...........................................................38, 39, 46

Lehman v. State, 792 S.W.2d 82 (Tex. Crim.
App. 1990) .............................................................................................................. 45

Lopez v. State, 343 S.W.3d 137 (Tex. Crim.
App. 2011)................................................................................................................ 25

Mallett v. State, 65 S.W.3d 59 (Tex. Crim.
App. 2001)................................................................................................................ 27

Margraves v. State, 34 S.W.3d 912 (Tex.
Crim. App. 2000), abrogated on other grounds
by Laster v. State, 275 S.W.3d 512 (Tex. Crim.
App. 2009). .............................................................................................................. 40

Marin v. State, 851 S.W.2d 275 (Tex. Cr. App.
1993) ....................................................................................................................... 10

Mata v. State, 226 S.W.3d 425 (Tex. Crim. App.
2007) ......................................................................................................26, 27, 28, 38

McMann v. Richardson, 397 U.S. 759 (1970) ......................................................... 25

Menefield v. State, 363 S.W.3d 591 (Tex. Crim.
App. 2012)............................................................................................................... 26

Miniel v. State, 831 S.W.2d 310 (Tex. Crim. App.
1992) ....................................................................................................................... 36

Owens v. State, 96 S.W.3d 668 (Tex. App.—Austin
2003, no pet.) .......................................................................................................... 11

Patrick v. State, 906 S.W.2d 481 (Tex. Crim. App.
1995) ....................................................................................................................... 27

Perez v. State, 310 S.W.3d 890 (Tex. Crim. App.
2010) ........................................................................................................................ 26


                                                             viii
Phipps v. State, 630 S.W.2d 942 (Tex. Crim. App.
1982) ........................................................................................................................ 19

Prystash v. State, 3 S.W.3d 522 (Tex. Crim. App.
1999) ........................................................................................................................ 32

Roberson v. State, (Tex. App.—Houston [1st Dist.]
2002, pet. ref’d) ........................................................................................................ 40

Robertson v. State, 187 S.W.3d 475 (Tex. Crim.
App. 2006)................................................................................................................ 37

Romero v. State, 13-12-00188-CR, 2013 WL
7964212, at *2 (Tex. App.—Corpus Christi
Oct. 24, 2013, pet. ref’d) (mem. op., not
designated for publication) ................................................................................14, 21

Sanders v. State, 675 S.W.2d 622 (Tex. App.—Fort
Worth 1984, no pet.) ................................................................................................ 45

Schultz v. State, 255 S.W.3d 153 (Tex. App.—San
Antonio 2008, no pet.). ............................................................................................ 34

Smith v. Gohmert, 962 S.W.2d 590 (Tex. Crim.
App. 1998).................................................................................................................. 9

Starks v. State, 266 S.W.3d 605 (Tex. App.—El Paso
2008, no pet.) .....................................................................................................20, 21

State v. Condran, 951 S.W.2d 178 (Tex. App.—
Dallas 1997, pet. granted), petition dismissed as
improvidently granted, 977 S.W.2d 144) ................................................................ 14

Strickland v. Washington, 466 U.S. 668 (1984) ....................................25, 26, 27, 38

Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App.
1999) ................................................................................................................. 26, 28

Tolbert v. State, 306 S.W.3d 776 (Tex. Crim. App.
2010) ....................................................................................................................... 32
                                                              ix
Tong v. State, 25 S.W.3d 707 (Tex. Crim. App.
2000) ........................................................................................................................ 27

Villani v. State, 116 S.W.3d 297 (Tex. App.—
Houston [14th Dist.] 2003, pet. ref’d) ..................................................................... 44

Whitehead v. State, 130 S.W.3d 866 (Tex. Crim.
App. 2004)................................................................................................................ 37

Wiede v. State, 214 S.W.3d 17 (Tex. Crim. App.
2007) ....................................................................................................................... 17

Wood v. State, 4 S.W.3d 85 (Tex. App.—Fort Worth
1999, pet. ref’d) ..................................................................................................32, 33

Zamorano v. State, 84 S.W.3d 643 (Tex. Crim. App.
2002) ............................................................................................................14, 15, 21




                                                               x
                             Statement of the Case
      Appellant helped steal a box of cigarettes from a New Braunfels CVS

Pharmacy on November 8, 2011 (see I C.R. at 10, 101). He was arrested just over a

week later on November 17, 2011 (I Supp. C.R. at 4). On February 27, 2012,

Appellant filed a 90-day writ (id. at 6). He was released on a personal recognizance

bond on March 8, 2012; the bond included the condition to not “commit any

offense against the laws of the State of Texas” (id. at 17-18).

      On December 17, 2012, Appellant was arrested in Bexar County on another

theft charge (id. at 13). The Honorable Dib Waldrip issued a capias for Appellant’s

arrest and set his bond at $10,000 (id.). On February 22, 2013, Appellant mailed a

letter to the Comal County District Clerk in which he stated that he was

incarcerated in Bexar County and had been sentenced to six months in state jail on

another offense (id. at 20). He anticipated being shipped off to begin serving his

sentence within 21 to 30 days, and indicated he would be willing to plead guilty to

a state jail felony in Comal County to “clear up loose ends” (id.).

      On May 10, 2013, Comal County took custody of Appellant (id. at 19). He

received his Magistrate’s warning on May 11, and he indicated he did not want to

request a court-appointed attorney (id. at 21). One month later on June 10, 2013,

Appellant filed a 180-day speedy-indictment writ requesting discharge and

dismissal of his case with prejudice (id. at 23, 26). Before any hearing on the writ


                                          1
was held, an indictment was returned on August 14, 2013 (I C.R. at 10). Appellant

did not request a hearing on his writ or otherwise urge it before the trial court

immediately before his trial commenced (see III R.R. at 7-14). Following a trial to

a jury, Appellant was convicted of the offense of Theft > $1,500 < $20,000 on or

about June 10, 2014 (I C.R. at 101). The jury assessed his punishment at 15 years

in the institutional division of TDCJ (id.). Appellant timely filed his notice of

appeal (id. at 94).


                                Issues Presented

   1. Where Appellant is incarcerated on another charge, acquiesces in the delay
      and eventually requests that any trial be barred instead of asking for a speedy
      trial, are his speedy-trial rights violated?

   2. Can Appellant demonstrate ineffective assistance of counsel on appeal
      where counsel’s strategies and motivations are not developed on the record
      and the alternative strategies argued on appeal would at best lead to a
      conviction for a similar offense with an equal range of punishment?

   3. Can the evidence in Appellant’s case be legally insufficient to support his
      conviction when – in viewing the evidence in the light most favorable to the
      verdict – it cannot be said that no reasonable juror would have found the
      evidence sufficient to prove Appellant’s guilt beyond a reasonable doubt?




                                         2
                                 Statement of Facts
      In a video interview, Appellant confessed that he and Frank Parramore

routinely stole merchandise from local businesses before fencing it in San Antonio

(State’s Ex. 11, Part 3 at 15:15:45; Part 4 at 15:28:55, 15:29:20, 15:30:45; Part 5 at

15:31:30). On November 8, 2011, Appellant and Parramore went to steal razors

from a CVS pharmacy (III R.R. at 36; State’s Ex. 11, Part 1 at 15:10:00; Part 3 at

15:14:30). Between 7:30 and 8:00 p.m., Appellant and Parramore walked through

the entrance of the store, talking and laughing with each other (III R.R. at 37, 44-

46; State’s Ex. 5, Part 1).

      Delores Rodriguez was working the 3:00 to 11:00 p.m. shift as the front-end

clerk that night (III R.R. at 36). She had to take care of customers, work the

register, assist people in the photo lab and check merchandise deliveries in (id. at

36, 38). The pharmacy was busy that evening (id. at 44). As she worked with a box

of cigarettes behind the counter, Ms. Rodriguez observed Appellant and Parramore

enter the store together (id. at 43, 45-47).

      Appellant planned to distract Rodriguez while Parramore tried to steal

merchandise (State’s Ex. 11, Part 3 at 15:14:35). Appellant asked for help in the

photo lab, drawing Ms. Rodriguez away from the counter (III R.R. at 45; State’s

Ex. 5, Part 3). While Appellant kept Rodriguez occupied, Parramore slipped

behind the counter and grabbed a box full of cigarettes (State’s Ex. 5, Part 3; Part


                                               3
4; III R.R. at 55). When Parramore ran back through the counter door, Rodriguez

heard it hit the wall and saw him with merchandise (III R.R. at 51, 54). As he ran

out the front door, she chased after him (State’s Ex. 5, Part 4). Appellant followed

them outside (id.).

      Ms. Rodriguez caught up with Parramore near the highway (III R.R. at 54).

She yelled at him to give her back the merchandise (id. at 55). Parramore then set

the box down, turned around and looked at her as if “he was going to fight” (id.).

Fearing he was about to attack her, Rodriguez ran back to the store (id.). Parramore

picked up the box and left (id. at 55).

      On her way back to the store, Ms. Rodriguez crossed paths with Appellant

(id. at 75). Rodriguez was familiar with thieves working in tandem; she believed

Appellant was working in concert with Parramore to distract her (id. at 83-84).

Appellant claimed he did not know what was happening (id. at 75). When

Rodriguez said she was calling the police, Appellant “took off” (id. at 75-76). In

his rush to get away, Appellant left his wallet and his cell phone in the pharmacy

(id. at 76-77; State’s Ex. 11, Part 4 at 15:17:20). Appellant never tried to retrieve

them – either from the store or the police – before trial (III R.R. at 77, 103).

      Rodriguez had not yet taken any of the cigarette cartons out of the stolen box

(id. at 52). To provide police with an accurate dollar amount, she completed her

inventory that night and checked it against the invoice (id. at 65). The invoice was


                                           4
created at the warehouse, where the merchandise had been counted prior to

shipping (id. at 53). Ms. Rodriguez had worked at the store for years (id. at 35).

She knew the invoices were accurate, and trusted them to give her the correct count

of the missing items (id. at 54). After completing her inventory, Rodriguez printed

out a receipt reflecting the stolen items and their value: 36 cartons had been stolen,

totaling $1,913.44 before tax (id. at 66).1

       Appellant later told Detective Wahrmund that he was surprised Parrarmore

had stolen razors instead of cigarettes, and that he was mad that Parramore had not

given him a cut of the proceeds (id. at 119-20; State’s Ex. 11, Part 1 at 15:10:30;

Part 3 at 15:15:23). Appellant was indicted for Theft > $1,500 < $20,000 and for

Theft with Two or More Convictions for the Same Offense (I C.R. at 10). After

Appellant stipulated to the two prior convictions, both counts were second-degree

felonies with the same punishment range (id.; I Supp. C.R. at 5).




1
 One such receipt was entered into evidence in the instant cause as State’s Exhibit 6 (V R.R. at
17).
                                                5
                           Summary of the Argument

      In his first point of error, Appellant apparently contends that the trial court

erred in failing to release him after he attempted to file a speedy trial writ two

months before he was indicted. Brief for Appellant at 19, 23-24. However,

Appellant failed to preserve this point of error because he never urged his writ,

obtained a hearing or ruling, or appealed any denial of his writ pretrial.

Furthermore, caselaw holds that the return of an indictment renders a speedy-

indictment writ moot. Finally, several factors – including Appellant’s expressed

desire to have no trial at all – support the finding that there was no speedy

indictment violation in any event.

      In his second point of error, Appellant tries to demonstrate ineffective

assistance of counsel on appeal. Appellant’s complaint related to pretrial habeas

applications fails because he either cannot show the lack of a valid strategy or

prejudice. The record is likewise not sufficiently developed to address Appellant’s

other claims on appeal, particularly in light of the reasonable strategies that could

underlie his counsel’s actions. Finally, where Appellant’s remaining claims argue

his counsel should have attacked the value of the property stolen, the fact that in

that event the State could still have obtained a conviction on proof of a similar theft

offense with the same range of punishment precludes any finding of prejudice.




                                          6
      In his final point of error, Appellant apparently challenges the legal

sufficiency of the evidence to prove he was criminally responsible for the theft, the

legal sufficiency of the evidence supporting value, and the legal sufficiency of the

evidence with regard to the number of cigarette cartons in the box. First, a

comparison of the facts in Felters with the facts of Appellant’s case demonstrates

the evidence in the instant case was significantly greater than that found sufficient

in Felters. Additionally, there was significant and legally sufficient evidence

establishing the value of the stolen cartons. Finally, although this same evidence

would be sufficient to establish the number of cartons stolen, the number is not

actually an element and would not generally constitute a material variance.




                                         7
1. Appellant’s Speedy Indictment Claim Fails Under Texas Case
   Law

A. Appellant Failed to Preserve Any Error by Not Correctly Filing His
   Application, Urging a Hearing, Obtaining a Ruling and Appealing Any
   Adverse Ruling Pretrial.

      The Court of Appeals noted the importance of bringing speedy-trial

applications to the attention to the trial court in Cowart v. State:

      As a prerequisite to presenting a complaint for appellate review, the
      record must show that the complaint was made in the trial court by a
      timely request, objection, or motion stating grounds for the ruling that
      the complaining party sought from the trial court, and the record must
      show that the trial court ruled on the request, objection, or motion
      either expressly or impliedly. See Tex. R. App. P. 33.1. A complaint
      that a defendant was not given a speedy trial must be raised in the trial
      court to preserve the complaint for appellate review.

03-99-00518-CR, 2000 WL 1227781, at *1 (Tex. App.—Austin Aug. 31, 2000, no

pet.) (not designated for publication) (citing Dunn v. State, 819 S.W.2d 510, 526

(Tex. Crim. App. 1991).

      The Court of Criminal Appeals subsequently held in Henson v. State that

preservation requirements apply to speedy-trial claims. 407 S.W.3d 764, 768 (Tex.

Crim. App. 2013), cert. denied, 134 S. Ct. 934 (2014). Henson emphasized the

incentive a defendant has to sleep on his rights related to such claims: “[w]ithout a

requirement of preservation, a defendant would have great incentive not to insist

upon a speedy trial and then to argue for the first time on appeal that the

prosecution should be dismissed because of delay.” Id. at 769. The Court also

                                           8
observed that preservation requirements furthered judicial efficiency; if the

appellant brought his complaint to the trial court’s attention first, the judge could

resolve any issues before the burden and expense of a trial and appeal. Id. Finally,

the Court observed that requiring the appellant to preserve the issue would result in

a sufficient record for any potential Barker analysis. Id.2 Two factors in particular

– the reason for the delay and the prejudice to the accused – are fact-specific

inquiries which need to be developed at a hearing in order for appellate courts to

accurately evaluate the issue. Id.

       In the instant case, Appellant failed to correctly file his pretrial writ, and was

informed of the error by the district court clerk (I Supp. C.R. at 39). Though he

was informed of the error, Appellant did not thereafter attempt to re-file a

corrected application, nor did he urge a hearing or ruling on his defective

application pretrial (see generally I C.R., I Supp. C.R., III R.R. at 7-13, id. at 14

(where the trial court received a negative response when it asked “[a]nything else

we need to talk about?”). After Appellant was indicted, he filed no motion to

dismiss the indictment pursuant to Article 27.03. See Smith v. Gohmert, 962


2
  Barker v. Wingo is the Supreme Court case which listed the factors to consider in evaluating
speedy-trial claims, including: 1) whether delay before trial was uncommonly long; 2) whether
the government or the criminal defendant is more to blame for that delay; 3) whether, in due
course, the defendant asserted his right to a speedy trial; and 4) whether he suffered prejudice as
the delay’s result. 407 U.S. 514, 531 (1972) (where the Court found the defendant was not
seriously prejudiced by five-year delay between arrest and trial and he did not want a speedy
trial, his right to a speedy trial was not violated). These factors are discussed in more detail infra
(at 15).
                                                  9
S.W.2d 590, 592 (Tex. Crim. App. 1998) (an appellant could appeal the erroneous

denial of such a motion post-trial).

      Appellant’s failure to urge the dismissal of the indictment is particularly

glaring in light of the fact that the return of an indictment before a hearing will

often render speedy-indictment claims moot. See infra at 11-12. Appellant

committed his theft offense on or about November 8, 2011, and his indictment was

returned on August 14, 2013. I C.R. at 10. Because any dismissal would be without

prejudice and the three-year statute of limitations had not expired, even after any

potential discharge, Appellant would simply have been re-indicted and rearrested.

See infra at 11-12. In light of the foregoing, the trial court – if it was aware of the

application at all – may have reasonably believed Appellant had decided not to

pursue the issue further after consulting with his counsel.

      As in Henson, Appellant may not raise the issue on appeal after failing to

urge his claim at trial, failing to request a hearing to develop the Barker factors and

failing to obtain a ruling. Henson, 407 S.W.3d 764, 768. “[u]nless a litigant ...

moves to avail himself of a procedural benefit ... no such benefit inures.... Because

the judge has no independent duty in this regard, his failure ... isn’t error about

which complaint might later be made on appeal.” Id. at 767 (citing Marin v. State,

851 S.W.2d 275, 278 (Tex. Cr. App. 1993)). Had Appellant complied with the

preservation requirements, the trial court could have granted “the appropriate


                                          10
remedy before the expense and other burdens of a trial (and an appeal)” were

incurred. Id. at 769; cf. Owens v. State, 96 S.W.3d 668, 673 (Tex. App.—Austin

2003, no pet.) (failure to obtain adverse ruling to jury argument objections waived

error); Bollinger v. State, 224 S.W.3d 768, 778 (Tex. App.—Eastland 2007, pet.

ref’d) (failure to obtain a ruling on a motion to suppress waived any error).

Furthermore, because the only relief available would have been pretrial liberty,

Appellant cannot receive relief on post-conviction appeal.3 Appellant has failed to

preserve his first point of error for review, and the Court should overrule it.



B. Even if Appellant had Preserved the Issue, His Claim Was Moot When an
   Indictment Was Returned Before Any Hearing on His Application.

         Under former articles 32.01 and 28.061, dismissal for delay was with

prejudice. Ex parte Martin, 6 S.W.3d 524, 529 (Tex. Crim. App. 1999). Now,

however, an appellant may be rearrested following such a dismissal when an

indictment is returned. Tex. Code Crim. Proc. Ann. art. 15.14 (West, Westlaw




3
    The Texas Practice Series observes that for speedy-indictment claims under article 32.01:

         Habeas corpus was undoubtedly the most appropriate vehicle during the 1987-
         1997 period.

         Under the statutory scheme as amended in 1997, habeas corpus is also clearly
         available. Since the only relief is essentially pretrial liberty, appeal from any
         conviction that followed could not provide that relief.

42 Tex. Prac., Criminal Practice And Procedure § 28:52 (3d ed.).
                                                  11
through 2013 Sess.); Ex parte Countryman, 226 S.W.3d 435, 438 (Tex. Crim. App.

2007).

      In Ex parte Countryman, the appellant filed an application to have his case

dismissed before the indictment was returned. Id. at 436. The trial court denied the

application, and the appellant appealed. Id. The court of appeals relied on Martin

and reversed the trial court. Id. The Court of Criminal Appeals distinguished

Martin, however; among other factors, it observed that prosecution was barred in

Martin unless the State showed good cause for the delay. Id. at 438. The Court

considered the totality of the circumstances, including the fact that the dismissal

would be without prejudice, the appellant was not eligible for release on bond, an

indictment was returned immediately after the application was filed, and the

appellant could have simply been rearrested under Article 15.14. Id. at 438-39. In

stark contrast to Martin, where a lack of good cause would result in a dismissal

with prejudice, Ex parte Countryman observed that under the current statutes “it

does not matter whether the State shows good cause for the delay because even a

determination that the State did not show good cause would not provide a remedy

to Appellant.” Id. at 439. The Court of Criminal Appeals found the trial court had

not erred in holding the claim was moot. Id.

      In the instant case, even if Appellant had preserved his claim, Ex parte

Countryman would preclude relief. The dismissal in the instant cause would


                                        12
likewise be without prejudice. See id. at 438. Whereas in Ex parte Countryman the

appellant was ineligible for release on bond, here, Appellant was free on a personal

recognizance bond until he was arrested in Bexar County on December 17, 2012 (I

Supp. C.R. at 13). Furthermore, Appellant admitted in his correspondence with the

Comal District Clerk that he was “presently incarcerated in the Bexar County Jail”

on February 22, 2013, had been sentenced to six months in state jail, and might

leave for the jail “within 21 to 30 days” (I Supp. C.R. at 20). Even if Appellant had

been “released” from the Comal charge, practically, he would still have been

confined in state jail on the Bexar County offense. Whereas the indictment in Ex

parte Countryman was returned a little more than a week after the application was

filed (226 S.W.3d at 436), in the instant cause, the indictment was returned just

over two months after the application was filed – presumably while Appellant was

still serving time on his Bexar County offense (I C.R. at 10). Finally, just as in Ex

parte Countryman, Appellant could simply have been re-indicted and rearrested in

the event he was “released” from the Comal charge. See Tex. Code Crim. Proc.

Ann. Art. 15.14; Tex. Crim. Proc. Code Ann. art. 12.01 (West, Westlaw through

2013 Sess.) (statute of limitations for theft is five years); I C.R. at 10 (theft was

committed on or about November 8, 2011).

      Even assuming arguendo the Appellant obtained an adverse ruling from the

trial court, it would not have erred in finding his claim moot in such circumstances.


                                         13
See Ex parte Countrymen, 226 S.W.3d at 439 (noting the futility of dismissing an

indictment when it merely forced the State to waste resources and grand jury time

by reindicting the appellant); see also State v. Condran, 951 S.W.2d 178, 192

(Tex. App.—Dallas 1997, pet. granted), petition dismissed as improvidently

granted, 977 S.W.2d 144) (holding article 32.01 complaint is moot if not ruled on

prior to indictment). Accordingly, the Court should overrule Appellant’s first point

of error.



C. Even if a Full Barker Analysis Was Conducted, the Trial Court Would Not
   Have Erred in Finding No Violation.

       Although Ex parte Countryman would be the proper analysis if Appellant

had preserved his speedy-indictment claim, notably, even under a full Barker v.

Wingo analysis, his claim would fail. Because Appellant only complains of pre-

indictment delay (Brief for Appellant at 19), the Court does not need to consider

post-indictment delay, if any. See Romero v. State, 13-12-00188-CR, 2013 WL

7964212, at *2 (Tex. App.—Corpus Christi Oct. 24, 2013, pet. ref’d) (mem. op.,

not designated for publication) (citing Brown v. State, 163 S.W.3d 818, 822 (Tex.

App.—Dallas 2005, pet. ref’d)).

       Courts will employ a bifurcated standard of review for speedy-trial claims,

including “an abuse of discretion standard for the factual components, and a de

novo standard for the legal components.” Zamorano v. State, 84 S.W.3d 643, 648
                                        14
(Tex. Crim. App. 2002). Where an appellant loses on his speedy-trial claim,

reviewing courts will presume the trial court resolved any disputed facts in favor of

the State, and will defer to any implied findings supported by the record. Id. Courts

must use a balancing test “in which the conduct of both the prosecution and the

defendant are weighed.” Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App.

2003). The Barker factors to consider include:

      1) “whether delay before trial was uncommonly long;”

      2) “whether the government or the criminal defendant is more to
      blame for that delay;”

      3) “whether, in due course, the defendant asserted his right to a speedy
      trial;” and

      4) “whether he suffered prejudice as the delay’s result.”

Zamorano v. State, 84 S.W.3d at 648 (citing Barker v. Wingo, 407 U.S. at 530).

      At the outset of the analysis, it is important to note that Appellant requested

relief which was not technically available. In his application, Appellant included

the following prayer for relief:

      WHEREFORE, PREMISES CONSIDERED, Petitioner prays that a
      Writ of Habeas Corpus Issues and have Petitioner brought before this
      Court instanter to end the illegal confinement and be Discharged for
      Delay barring further prosecution.

(I Supp. C.R. at 26) (emphasis added); but see Ex parte Countryman, 226 S.W.3d

at 439 (dismissal no longer bars prosecution). As noted in Romero, “[f]iling for a

dismissal instead of a speedy trial will generally weaken a speedy-trial claim
                                         15
because it shows a desire to have no trial instead of a speedy one.” 2013 WL

7964212, at *3 (citing Cantu v. State, 253 S.W.3d 273, 283 (Tex. Crim. App.

2008)). Accordingly, Appellant’s claim is weakened by his explicit request to bar

any trial. Additionally, because Appellant only asked for relief which was not

available, the trial court would not have erred in denying his application on this

ground.

      The first Barker factor – the length of the delay – is measured from the time

the defendant is arrested or formally accused. Dragoo v. State, 96 S.W.3d at 313.

Courts will generally presume delays approaching one year to be sufficient to

trigger the Barker enquiry. Id. (finding the three-and-a-half-year delay sufficient).

In the instant case, the offense was alleged to have occurred on or about November

8, 2011, though Appellant was not arrested until November 17, 2011 (I C.R. at 10;

I Supp. C.R. at 4). The indictment was returned on August 14, 2013, less than one

year and nine months later (id.). Therefore, for the purposes of this argument, the

State will presume the Barker enquiry was triggered.

      The next factor to consider is the reason for the delay. Where the State offers

the trial court no reason for the delay, this factor weighs in favor of finding a

violation, though “this factor does not weigh heavily in favor of such a finding.”

Dragoo, 96 S.W.3d at 314 (emphasis in original). Notably, however, Dragoo

involved a hearing where the State failed to offer any explanation. Id. at 312.


                                         16
Appellant in the instant case failed to ask for a hearing or obtain findings (III R.R.

at 14). As Henson observed, the preservation requirements should apply to speedy-

trial claims to ensure an adequately developed record for fact-specific Barker

inquiries including “the reason for the delay and the prejudice to the accused.” 407

S.W.3d at 769.

      In the instant case, as noted supra, Appellant was presumably still serving

his state jail sentence on the Bexar County offense at the time of the indictment (I

Supp. C.R. at 20). See Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007)

(absent findings, a reviewing court must “view the evidence in the light most

favorable to the trial court’s ruling and assume it made implicit findings of fact that

support its ruling as long as those findings are supported by the record.”).

Furthermore, Appellant did not request a “speedy indictment” until June 10, 2013

– almost one year and seven months after his arrest (I Supp. C.R. at 23; id. at 4). In

such circumstances, the trial court would not have erred in finding the indictment –

filed well within the five-year statute of limitations – was not unreasonably

delayed.

      Because Appellant did not request a hearing or findings, and because –

viewing the evidence in the light most favorable to the trial court’s “ruling” –

implicit findings drawn from the record could support a finding of reasonable

delay, factor two should weigh against Appellant’s claim. In any event,


                                          17
Appellant’s failure to develop the record at a hearing should not be held against the

State.

         When dealing with factor three – the defendant’s assertion of his right –

courts have noted that “failure to assert the right … make[s] it difficult for a

defendant to prove he was denied a speedy trial.” Barker, 407 U.S. at 532. “This is

so because a defendant’s lack of a timely demand for a speedy trial ‘indicates

strongly that he did not really want a speedy trial.’” Dragoo, 96 S.W.3d at 314.

Dragoo found it highly significant that the appellant in that case waited three-and-

a-half years – until just before trial – to assert his right. Id. Because the Court

viewed this as a strong indication that the appellant did not want a speedy trial, this

factor weighed “very heavily against a finding of the speedy trial right.” Id. at 315.

         In the instant case, Appellant waited almost one year and seven months to

file his speedy-indictment writ, and he was indicted two months later (I Supp. C.R.

at 23; id. at 4; I C.R. at 10). Under Dragoo, this in itself is sufficient to be

considered a strong indication Appellant did not want a speedy trial. See 96

S.W.3d at 314. However, Appellant further explicitly requested that any

prosecution related to his offense be completely barred (I Supp. C.R. at 26). Where

this factor in Dragoo was found to weigh “very heavily” against that defendant, in

light of the express statement in the instant case that Appellant did not want a

speedy trial, this factor should weigh even more strongly against his claim. See 96


                                          18
S.W.3d at 315; see also Phipps v. State, 630 S.W.2d 942, 946 (Tex. Crim. App.

1982) (where a defendant demonstrated no prejudice by a four-year delay between

arrest and trial and he waited until one month before trial to assert his right to a

speedy trial, his right to speedy trial was not violated).

      The fourth factor addresses prejudice to the defendant resulting from the

delay. Dragoo, 96 S.W.3d at 315. Dragoo noted that the appellant in that case was

in prison serving a life sentence for murder, and that under those circumstances the

Court was mainly concerned with whether his ability to defend himself was

prejudiced by the delay. Id. While Appellant was apparently likewise serving a

state jail sentence for part of the complained-of time period, he was also free on a

personal-recognizance bond from March 8, 2012 (I Supp. C.R. at 17) until he was

arrested for a Bexar County offense on December 17, 2012 (I Supp. C.R. at 13).

Notably, Appellant did not present any arguments regarding prejudice to the trial

court (see I Supp. C.R. at 23-27). Appellant now presents arguments in his brief on

appeal; however, Dragoo noted that “appellant presented no evidence to the trial

court that showed his defense was prejudiced.” 96 S.W.3d at 314-15 (noting the

court of appeals erred in finding prejudice based on an argument the appellant

never made to the trial court). Appellant has waived his arguments regarding

prejudice. See id.




                                           19
      Furthermore, if the Court did not find, a further analysis of the fourth factor

does not favor Appellant. “[E]ven where the delay is presumptively prejudicial, the

defendant must nevertheless show that he has, in fact, been prejudiced.” Starks v.

State, 266 S.W.3d 605, 612 (Tex. App.—El Paso 2008, no pet.). While a showing

of actual prejudice is not required, the defendant must make a prima facie showing

of prejudice from the delay. Id. Notably, “the presumption of prejudice is

diminished by the defendant’s acquiescence in the delay.” Id. An assessment of

prejudice requires courts to look to the interests the right is designed to protect,

including “(1) preventing oppressive pretrial incarceration, (2) minimizing the

anxiety and concern of the accused, and (3) limiting the possibility that the defense

will be impaired.” Id. Of these, the third interest is the most important. Id.

      Although Appellant claims he was incarcerated for nearly the entire time

(Brief for Appellant at 28), as noted supra, he was actually free on a personal

recognizance bond for over nine months, until he was arrested and jailed related to

a Bexar County offense. Furthermore, Appellant received jail-time credit for the

time periods a Comal County hold was placed on him (I C.R. at 101). See Starks,

266 S.W.3d at 613 (where appellant pled guilty and received full credit for the time

he had spent in jail, his twenty-five-month pretrial incarceration was not

oppressive); I Supp. C.R. at 20 (where Appellant, in correspondence with the




                                          20
district clerk, expressed a willingness to plead guilty to the state jail felony

offense). Appellant’s pretrial incarceration was not oppressive.

       On the issue of anxiety, because Appellant never requested a hearing or

made arguments to the trial court, even more than in Starks he has “failed to

introduce any evidence that the anxiety he suffered either was abnormal or caused

his case prejudice.” Starks, 266 S.W.3d at 613. “[E]vidence of generalized anxiety,

though relevant, is not sufficient proof of prejudice under the Barker test,

especially when it is no greater anxiety or concern beyond the level normally

associated with a criminal charge or investigation.” Cantu, 253 S.W.3d at 286.

Additionally, as noted Appellant was incarcerated for much of the time period on

another offense, was sentenced to six months in state jail on said offense, and was

apparently unemployed (see State’s Exhibit 11, Part 2 at 15:11:55, 15:13:00

[Appellant has been disabled since 2007]). 4 Where an appellant admits he was

unemployed at arrest, that cuts against claims of anxiety. Romero, 2013 WL

7964212 at *4 (citing as analogous Zamorano, 84 S.W.3d at 654 (noting, among

other things, that the delay interfered with the appellant’s job)). In such

circumstances, Appellant was not subject to anxiety. See Starks, 266 S.W.3d at

613.



4
  Since different software may time playback differently, all references to video playback times
refer to the video’s embedded clock.
                                               21
      With regard to the final interest, as in Dragoo, Appellant presented no

evidence to the trial court that showed his defense was prejudiced. See 96 S.W.3d

at 315. On appeal, Appellant argues that memories and evidence fade over time.

Brief for Appellant at 28-29. However, because “time can tilt the case against

either side … one cannot generally be sure which [party] it has prejudiced more

severely.” Gonzales v. State, 435 S.W.3d 801, 813 (Tex. Crim. App. 2014)

(involving a speedy-trial motion filed one month after arrest). If anything, because

the State has the burden to prove its case beyond a reasonable doubt, delay would

seem to be more likely to prejudice the State.

      Appellant complains that because of the delay, a store clerk witness – Ms.

Rodriguez – relied “solely on the ledger” to indicate the number of cartons missing

from the store. Brief for Appellant at 29. However, Ms. Rodriguez testified that she

created the receipt the night of the theft after checking in all of her inventory (III

R.R. at 67). Furthermore, the witness testified that based on her experience, she

trusted the invoices to accurately reflect the product shipments (id. at 54). Ms.

Rodriguez also demonstrated independent recall of the offense (see, e.g., id. at 51

[where she remembers trying to remove the memory card from Appellant’s phone

and hearing the counter door hit the wall], 55 [where she remembers the product

box was full]). Additionally, as described in the statement of facts supra, there was




                                         22
overwhelming video evidence of the thefts, along with Appellant’s recorded

confession.

       Although Appellant also complains generally of fading memories and

evidence, the Legislature has determined that a five-year delay is not overly

prejudicial in theft cases. Tex. Crim. Proc. Code Ann. § art. 12.01(4). Furthermore,

Appellant was arrested for the offense less than a month after it happened, and was

made aware of the need to seek and preserve evidence for his defense very close to

the time of the offense (I Supp. C.R. at 4).5 As the Court of Appeals has observed:

       The primary purpose of a statute of limitations is to ensure that claims
       are asserted within a reasonable time, giving the opposing party a fair
       opportunity to prepare a defense while evidence is still available. A
       statute of limitations also ensures that notice of claims is given to
       adverse parties in order to prevent “fraudulent and stale claims from
       springing up at great distances of time and surprising the other party.”

Bara v. Major Funding Corp. Liquidating Trust, 876 S.W.2d 469, 472 (Tex.

App.—Austin 1994), writ denied (Nov. 3, 1994) (internal citations omitted) (in a

case involving certified class actions, where “the defendant has been made aware

of the need to preserve evidence and witnesses with respect to the claims,” tolling

did not contravene the purpose of statute of limitations) (citing Am. Pipe & Const.

Co. v. Utah, 414 U.S. 538 (1974)); see also Hernandez v. State, 127 S.W.3d 768,


5
 Appellant was free on a PR bond for nine months after his Comal County arrest before his
subsequent arrest for theft in Bexar County (id. at 13, 17). Notably, Appellant also moved for a
continuance, further delaying trial (I Supp. C.R. at 43).
                                              23
772 (Tex. Crim. App. 2004) (allowing prior indictments for similar offenses to toll

the statute of limitations did not defeat their purpose, because if “the defendant has

adequate notice of a charge, he can preserve those facts that are essential to his

defense”); Green v. State, 14-08-00075-CR, 2009 WL 136917, at *3 (Tex. App.—

Houston [14th Dist.] Jan. 20, 2009, no pet.) (mem. op., not designated for

publication) (“because both the prior and subsequent indictments pertained to the

same conduct stemming from the same transaction, appellant had adequate notice

to defend against the charges and preserve the facts that were essential to his

defense.”).

      Appellant cannot show prejudice when – had the State taken no action at all

– he could have been prosecuted without warning at an even later date under the

statute of limitations. His position becomes even more untenable in light of the fact

that he was aware of his need to preserve evidence less than a month after the

offense and was free on a PR bond for nine months before he was rearrested.

Finally, just as in Dragoo, any presumption of prejudice “is extenuated by

[Appellant’s] longtime acquiescence in the delay.” See 96 S.W.3d at 315.

Accordingly, the fourth factor likewise weighs against finding any violation of his

speedy trial right. See id. at 315-16.

      In Dragoo, the Court found that the excessive delay and the State’s failure to

offer any reason for the delay weighed in favor of finding a violation. Id. at 316.


                                         24
The Appellant’s failure to demonstrate prejudice and his acquiescence during a

large majority of the delay weighed against such a finding. Id. On balance, the

Court found the factors weighed against finding a violation. Id. The balance of the

factors in the instant case likewise weigh against such a finding. Even if the delay

was excessive as in Dragoo, the Appellant’s failure to urge the trial court to hold a

hearing and develop evidence on the reasons for the delay should weigh against his

claim. Regardless, Appellant’s clearly expressed desire to have no trial, his

acquiescence in the delay and his failure to demonstrate prejudice tip the balance

against finding a speedy trial violation even more decisively than in Dragoo. See

id. Accordingly, Appellant’s first point of error should be overruled.




2. Appellant Cannot Show Ineffective Assistance of Counsel on
   Appeal


Ineffective Assistance of Counsel Standard of Review on Appeal

      The Sixth Amendment right to effective assistance of counsel does not

provide a right to errorless counsel; it is a right to objectively reasonable

representation. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011) (citing

McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970); Strickland v. Washington,

466 U.S. 668, 686 (1984)). To prevail on a claim of ineffective assistance of

counsel, an appellant must satisfy both prongs of Strickland, demonstrating both

                                         25
deficient performance by counsel as well as prejudice suffered by the defendant

because of counsel’s alleged deficient performance. 466 U.S. at 687; Menefield v.

State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012).

      Under the first prong, the Applicant must demonstrate that counsel’s

performance fell below an objective standard of reasonableness under prevailing

professional norms. Strickland, 466 U.S. at 687–88. To satisfy the second prong of

Strickland, the Applicant has to show the existence of a reasonable probability –

one sufficient to undermine confidence in the outcome – that but for counsel’s

deficient performance, the result of the proceeding would have been different.

Strickland, 466 U.S. at 694. Failure to make the required showing of either

deficient performance or sufficient prejudice defeats the ineffectiveness claim.

Strickland, 466 U.S. at 700; see Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim.

App. 2010).

      “It is not sufficient that the appellant show, with the benefit of hindsight, that

his counsel’s actions or omissions during trial were merely of questionable

competence.” Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007). In

making its assessment of counsel’s assistance, the reviewing court examines the

totality of the representation and the circumstances of each case without the benefit

of hindsight. Lopez, 343 S.W.3d at 142-43; Thompson v. State, 9 S.W.3d 808, 813

(Tex. Crim. App. 1999); Garcia v. State, 57 S.W.3d 436, 430 (Tex. Crim. App.


                                          26
2001). The reviewing court must presume that counsel is better positioned to judge

the pragmatism of the particular case, and that he “made all significant decisions in

the exercise of reasonable professional judgment.” Delrio v. State, 840 S.W.2d

443, 447 (Tex. Crim. App. 1992) (citing Strickland v. Washington, 466 U.S. at

690).

        Reviewing courts will indulge in a strong presumption that trial counsel’s

performance was reasonable. Patrick v. State, 906 S.W.2d 481, 495 (Tex. Crim.

App. 1995). The “[a]ppellant has the burden of proving ineffective assistance by a

preponderance of the evidence.” Id. (citing Cannon v. State, 668 S.W.2d 401 (Tex.

Crim. App. 1984)). The Court has also noted that “the presumption that trial

counsel’s performance was reasonably based in sound trial strategy, coupled with

the absence of any supporting evidence in the record of unreasonableness, compels

a reviewing court to consider ways in which trial counsel’s actions were within the

bounds of professional norms.” Mata, 226 S.W.3d at 431.

        To prevail on a claim of ineffective assistance of counsel, an appellant must

provide a record that affirmatively demonstrates that defense counsel’s

performance was not based on sound strategy. Mallett v. State, 65 S.W.3d 59, 63

(Tex. Crim. App. 2001). If the appellate record is silent regarding the reasons for

defense counsel’s conduct, then it is insufficient to overcome the presumption that

counsel was following a legitimate strategy. Tong v. State, 25 S.W.3d 707, 714


                                          27
(Tex. Crim. App. 2000); Thompson, 9 S.W.3d at 813–14; Jackson v. State, 877

S.W.2d at 771 (refusing to hold counsel’s performance deficient given the absence

of evidence concerning counsel’s reasons for choosing the course he did).

      As the Court stated in Ex parte Torres, “[i]n most instances, the record on

direct appeal is inadequate to develop an ineffective assistance claim.” 943 S.W.2d

469, 475 (Tex. Crim. App. 1997) (internal citations omitted). The Court has noted

that “trial counsel should ordinarily be afforded an opportunity to explain his

actions before being denounced as ineffective. Absent such an opportunity, an

appellate court should not find deficient performance unless the challenged

conduct was ‘so outrageous that no competent attorney would have engaged in it.’”

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting

Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2007)).

      Accordingly, the Court has repeatedly held that post-conviction writs of

habeas corpus are the more appropriate or preferable means of raising a claim of

ineffective assistance of counsel. See, e.g., Rylander, 101 S.W.3d at 110-11;

Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998); Mata, 226 S.W.3d

at 430 (“[t]he lack of a clear record usually will prevent the appellant from meeting

the first part of the Strickland test, as the reasonableness of counsel’s choices and

motivations during trial can be proven deficient only through facts that do not

normally appear in the appellate record”).


                                         28
A. Appellant Cannot Show Ineffective Assistance from Mr. Zamora.

       Appellant first complains of Mr. Zamora’s representation. To the extent

Appellant complains of Zamora’s representation related to article 17.151, he

cannot show prejudice. Appellant was released on a PR bond after filing a 90-day

writ (I Supp. C.R. at 17). As to Appellant’s ineffective assistance claim related to

the failure to file a 180-day writ (Brief for Appellant at 32), as mentioned,

dismissal no longer bars prosecution. Ex parte Countryman, 226 S.W.3d at 439.

Griffis v. State, 441 S.W.3d 599, 606 (Tex. App.—San Antonio 2014), petition for

discretionary review refused (Nov. 19, 2014) (“reasonably competent counsel need

not perform a useless or futile act”). If his case had been dismissed, he would

simply been indicted and rearrested. Appellant presumably did not urge dismissal

at trial for this reason.

       Furthermore, Appellant was free on a PR bond until he was arrested for a

Bexar County offense on December 17, 2012 (I Supp. C.R. at 13). He was

sentenced to six months in state jail for the Bexar County offense, and obtained

jail-time credit for the amount of time a Comal County hold was placed on him

(see I C.R. at 101). Because in certain circumstances he might obtain jail-time

credit for multiple offenses – effectively serving time cumulatively – Appellant

might have made the strategic decision not to pursue dismissal of the Comal

offenses since he would be serving time in jail regardless. See Nixon v. State, 572


                                        29
S.W.2d 699, 701 (Tex. Crim. App. 1978) (an appellant is “confined ‘on said

cause’” when a hold is lodged against him). When Appellant eventually filed a

180-day writ – requesting dismissal with prejudice – the State procured an

indictment, making his claim moot. Because Mr. Zamora’s reasons for not filing

the 180-day writ are not apparent – and given how futile such dismissals are in

Appellant’s circumstances – Appellant cannot show ineffective assistance related

to Mr. Zamora’s representation.



B. Mr. Collins Was Not Ineffective for Failing to Dispute Credible Evidence,
   Particularly Where Conviction for the “Lesser” Offense Would Still Subject
   Appellant to the Same Range of Punishment.

      Appellant argues Mr. Collins was ineffective for not arguing against the

value of the stolen property. Brief for Appellant at 34. However, the evidence

introduced at trial was clear and reliable. Ms. Rodriguez, the store clerk, testified

that in her experience she had found the delivery invoices to be accurate, and that

she trusted them to accurately reflect the products delivered to the store. III R.R. at

54. She had not put any cigarettes on the shelf (id. at 52) and she testified that the

stolen box was full (id. at 55). Further, she created the receipt listing the stolen

items close in time to the offense – in fact, on the night of the theft after

completely checking in her inventory (id. at 67).




                                          30
      Counsel observed the witness’s testimony at trial, and was best positioned to

determine how to approach the testimony in front of the jury. See Delrio, 840

S.W.2d at 447. If the cashier’s testimony appeared to be credible, trying to attack it

before the jury could easily backfire (see also III R.R. at 131 [where Mr. Collins

stated he had “no intention of arguing” it was a lesser value]). This is particularly

true in the instant case; even if Appellant could successfully show the value was

less than $1,500, the State had already prepared for that contingency (see I C.R. at

10). Appellant’s value argument therefore fails – the State would simply have

convicted him under Count II. Notably, even if Appellant had been convicted of

theft involving an amount less than $1,500 under Count II of the indictment,

Appellant would still be subject to the same punishment range because of his two

prior convictions (see id.).



C. Mr. Collins Was Not Ineffective for Obtaining a Directed Verdict on a Lesser-
   Included Offense When the “Lesser” Offense Had the Same Range of
   Punishment.

      Appellant next argues that his counsel was ineffective for excluding the

lesser-included offense from consideration. Brief for Appellant at 35. Under the

doctrine of invited error, Appellant could not generally complain of an error he

induced at trial. “The rule of invited error in jury charges is one of long standing

…. [courts] will not permit [an] appellant to complain of the trial court’s deleting a


                                         31
jury charge as he requested.” Prystash v. State, 3 S.W.3d 522, 531-32 (Tex. Crim.

App. 1999); see also Druery v. State, 225 S.W.3d 491, 505-06 (Tex. Crim. App.

2007) (where defendant – after affirmatively advising the trial judge he did not

want a charge on a lesser-included offense – was estopped by the equitable

doctrine of invited error from complaining of an action it induced). Although

Appellant attempts to circumvent the rule by couching his argument in terms of

ineffective assistance, in the particular circumstances of his case, it cannot be

ineffective assistance to exclude criminal liability for one of two charged theories

with equal punishment ranges.

      Courts have observed that it may be a legitimate strategy to pursue an all-or-

nothing tactic with lesser-included offenses. Tolbert v. State, 306 S.W.3d 776, 781

n.9 (Tex. Crim. App. 2010) (lesser-included offense instructions “frequently

depend upon trial strategy and tactics”). “Regardless of which side chooses to ‘go

for broke,’ it may be a valid strategic choice from which neither side should be

rescued.” Id. at 782 (citing Haynes v. State, 273 S.W.3d 183, 191 (Tex. Crim. App.

2008) (Johnson, J., concurring)).

      Appellant asserts that counsel is per se ineffective when a request for an

instruction on a lesser-included offense is not made, if the trial judge would have

erred in refusing it. Brief for Appellant at 35-36 (citing Wood v. State, 4 S.W.3d




                                        32
85, 87 (Tex. App.—Fort Worth 1999, pet. ref’d). However, Wood actually states

that:

        [a] defense attorney’s failure to request a jury instruction can render
        his assistance ineffective if, under the particular facts of the case, the
        trial judge would have erred in refusing the instruction had counsel
        requested it …. [h]owever, it may be reasonable trial strategy not to
        request a charge on a lesser-included offense.

4 S.W.3d at 87 (emphasis added). Wood went on to observe that there was some

question as to whether that counsel had attempted an all-or-nothing tactic. Id. at 88.

Because that appellant had not filed a motion for new trial and developed a record

on his ineffective assistance claim, the court held that he could not “overcome the

strong presumption that trial counsel’s [all-or-nothing] strategy was reasonable

from counsel’s perspective at trial.” Id.

        The strong presumption that Mr. Collins’ strategy was reasonable is only

reinforced by the fact that conviction of the “lesser” offense in the instant case

would have subjected Appellant to the same range of punishment. See I C.R. at 10,

46 (where Appellant recognized in his Motion for Severance that the two counts

had identical punishment ranges); III R.R. at 124. In such circumstances, it cannot

be unreasonable to reduce the number of theories upon which Appellant could be

found guilty. Additionally, though Mr. Collins was equitably and judicially




                                            33
estopped from arguing the value was less than $1,500,6 there was still some chance

the jury might determine the State had not met its burden to prove the value was

more than $1,500. See, e.g., II R.R. at 96-97 (where Mr. Collins emphasized in voir

dire that the jury had to find Appellant “not guilty” if the State failed to prove

every element of its case beyond a reasonable doubt); III R.R. at 31-33 (where Mr.

Collins asked the jury to “keep notes” and make sure the State met its burden on

each element, because one element would be missing).



D. Because Appellant’s Suggested Lines of Inquiry Would Have Hurt Him at
   Trial, Mr. Collins Was Not Ineffective for Failing to Further Cross-Examine
   the Witness.

       Appellant claims Mr. Collins was ineffective for failing to cross-examine

Ms. Rodriguez, the CVS clerk, regarding “blatant discrepancies” in her testimony.

Brief for Appellant at 38. In particular, Appellant claims “the date and time stamp


6
  To obtain a directed verdict on Count II, Mr. Collins argued there was “no evidence” that
anything less than $1,500 had been stolen (III R.R. at 124). Appellant claims that Mr. Collins
thereafter “unnecessarily agreed not to argue the amount to be less than the greater charge”
(Brief for Appellant at 36). Appellant could not equitably argue there was no evidence of the
lesser value to the judge, obtain a directed verdict, and argue it was a lesser value to the jury.
Courts have observed that:
        A party may be estopped from taking a position that is inconsistent with that
        party’s prior conduct. See Arroyo v. State, 117 S.W.3d 795, 798 (Tex. Crim. App.
        2003) (holding the State was estopped from challenging admissibility of defense
        exhibits which were certified copies of criminal records summarized in rap sheet
        produced by State); see also Jones v. State, 119 S.W.3d 766, 784 (Tex. Crim.
        App. 2003) (defendant was estopped from raising issue on appeal that trial court’s
        discharge of juror was inappropriate where defendant himself proposed discharge
        as alternative to mistrial).
Schultz v. State, 255 S.W.3d 153, 155 (Tex. App.—San Antonio 2008, no pet.).
                                               34
on ledger” controvert the witness’s assertion that she made document on the night

of the theft. Id. The theft occurred on November 8, 2011 (III R.R. at 36) between

7:30 and 8:00 p.m. (id. at 37, 44). Ms. Rodriguez testified that she made State’s

Exhibit 6 on the night of the theft (id. at 66-67). The time stamp on the receipt in

evidence indicates it was printed out at 10:54 a.m. on the morning of November 9,

2011 (V R.R. at 17 – State’s Ex. 6). Outside the presence of the jury, the witness

had likewise indicated she printed a receipt out on the night of the theft for the

police (III R.R. at 59). A police report from the incident apparently indicated a

receipt had been printed out, and Detective Wahrmund testified that he received a

receipt totaling $1,913.44 during his investigation (id. at 61, 121). Ultimately, even

if only once such receipt was made early on the morning of November 9 (as

opposed to late at night on November 8) Appellant has failed to show how this

would create “reasonable doubt” as to the accuracy of the receipt. Mr. Collins

could reasonably have determined such cross-examination would be pointless or

harmful if the jury thought he was contesting trivialities.

      Appellant next complains about Mr. Collins’ lack of inquiry into the clerk’s

knowledge of how many cartons were taken and the reliability of the ledger. Brief

for Appellant at 38. Frequently, however, “the decision to not cross-examine a

witness is the result of wisdom acquired by experience in the combat of trial.”

Coble v. State, 501 S.W.2d 344, 346 (Tex. Crim. App. 1973). Furthermore,


                                          35
“[c]omplete absence of cross-examination may be a legitimate strategy if a cross-

examination would only serve to reinforce the prosecution’s theory.” Carmona v.

State, 880 S.W.2d 227, 236 (Tex. App.—Austin 1994), vacated on other grounds,

941 S.W.2d 949 (Tex. Crim. App. 1997).

      In the instant case, Mr. Collins did generally inquire into the capacity of the

boxes:

      [Mr. Collins]: “So there’s 60 cartons inside the one box?”
      [Ms. Rodriguez]: “It varies.”
      ….

      [Mr. Collins]: “And that box, based on your inventory, you showed that
      there were 36 cart – cartons in that box?”

      [Ms. Rodriguez]: “Yes.”

III R.R. at 79-80; see also id. at 53 (inventories are checked once already when

shipped from the CVS warehouse), 54 (Ms. Rodriguez found the invoices reliable),

59 (outside the presence of the jury, Ms. Rodriguez explained a discrepancy in

numbers as an initial estimate she later revised upon checking her inventory). From

his perspective at trial, Mr. Collins could reasonably determine that any further

cross-examination of Ms. Rodriguez would only serve to reinforce the State’s case.

See Miniel v. State, 831 S.W.2d 310, 324 (Tex. Crim. App. 1992).




                                        36
E. Appellant Argues Outside the Record, and the Only Evidence in the Record
   Indicates Mr. Collins Was Not Ineffective for Failing to Investigate.

      In his final issue under point of error two, Appellant claims Mr. Collins

failed to investigate “the physicality of the evidence.” Brief for Appellant at 39. In

support of his claim, Appellant refers to evidence outside the record – specifically,

to evidence allegedly introduced in Frank Parramore’s trial. Id. at 40 n.12.

“Assertions in an appellate brief that are unsupported by the record will not be

accepted as fact.” Ex parte Preston, 833 S.W.2d 515, 519 (Tex. Crim. App. 1992).

“An appellate court may not consider factual assertions that are outside the

record.” Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004); see

also Brown v. State, 866 S.W.2d 675, 678 (Tex.App.-Houston [1st Dist.] 1993, pet.

ref’d) (refusing to consider material outside the record that was improperly

attached to party’s appellate brief).

      In Appellant’s case, there is no evidence in the record that Mr. Collins failed

to investigate. It is possible he did investigate and determined that unfavorable

answers (see, e.g., III R.R. at 79) would harm Appellant if introduced.

      “Judicial scrutiny of counsel’s performance must be highly deferential. It is

all too tempting for a defendant to second-guess counsel’s assistance after

conviction or adverse sentence, and it is all too easy for a court, examining

counsel’s defense after it has proved unsuccessful, to conclude that a particular act

or omission of counsel was unreasonable.” Robertson v. State, 187 S.W.3d 475,
                                         37
482 (Tex. Crim. App. 2006). Because the lack of a clear record precludes

meaningful review of counsel’s choices, Appellant cannot show his counsel’s

strategies were deficient. See Mata, 226 S.W.3d at 430. Appellant also fails to

show prejudice, or a reasonable probability that the result of the proceeding would

have been different. Strickland, 466 U.S. at 694. Indeed, four of Appellant’s five

claims essentially challenging the failure to try to show the value was less than

$1,500 are moot: assuming arguendo that fact could be proved at trial, Appellant

would have been convicted under Count II, which would have subjected him to the

exact same range of punishment (see I C.R. at 10). In any event, the evidence of

Appellant’s guilt was overwhelming, including video of the theft itself and

Appellant’s recorded confession to being a party to the theft, supra (at 3-5).




3. The Evidence Was Legally Sufficient to Establish That Appellant
   Was a Party to the Theft and to Establish Value.

      After the decision of the Court of Criminal Appeals in Brooks v. State, Texas

appellate courts review legal and factual sufficiency challenges in criminal cases

using the same legal sufficiency standard of review. Kiffe v. State, 361 S.W.3d 104,

107 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (citing Ervin v. State, 331

S.W.3d 49, 54 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d)). Evidence is only

insufficient if, when considering all the evidence in the light most favorable to the


                                         38
verdict, “no rational factfinder could have found each essential element of the

charged offense beyond a reasonable doubt.” Id. (citing Jackson v. Virginia, 443

U.S. 307, 319 (1979)). While viewing the evidence in the light most favorable to

the verdict, evidence can be insufficient in two circumstances: when the record

contains “no evidence, or merely a ‘modicum’ of evidence, probative of an

element of the offense” or when “the evidence conclusively establishes a

reasonable doubt.” Id. The evidence may also be insufficient when the acts alleged

do not constitute the offense charged. Id. at 108.

      Legal sufficiency review “gives full play to the responsibility of the trier of

fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.” Jackson v. Virginia, 443

U.S. at 319. Reviewing courts determine whether the necessary inferences are

reasonable based on the “combined and cumulative force of the evidence when

viewed in the light most favorable to the verdict.” Kiffe, 361 S.W.3d at 108.

      Courts will treat direct and circumstantial evidence equally. Id.

“Circumstantial evidence is as probative as direct evidence in establishing the guilt

of an actor, and circumstantial evidence alone can be sufficient to establish guilt.”

Id. Appellate courts will presume that the factfinder “resolved any conflicting

inferences in favor of the verdict” and defer to that resolution. Id. The reviewing

courts will also defer to “the factfinder’s evaluation of the credibility and the


                                         39
weight of the evidence.” Id. The factfinder is entitled to accept some testimony and

reject other testimony, in whole or in part. Margraves v. State, 34 S.W.3d 912, 919

(Tex. Crim. App. 2000), abrogated on other grounds by Laster v. State, 275

S.W.3d 512 (Tex. Crim. App. 2009). In reviewing the sufficiency of the evidence

related to party liability, courts will look to:

        “events occurring before, during and after the commission of the
       offense and may rely on actions of the defendant which show an
       understanding and common design to do the prohibited act.” Each fact
       need not point directly and independently to the guilt of the appellant,
       as long as the cumulative effect of all the incriminating facts are
       sufficient to support the conviction. Motive is a significant
       circumstance indicating guilt. Intent may also be inferred from
       circumstantial evidence such as acts, words, and the conduct of the
       appellant.

Guevara v. State, 152 S.W.3d 45, 49-50 (Tex. Crim. App. 2004) (internal citations

omitted).

       Appellant cites Roberson v. State, arguing that just as in that case, there are

insufficient factors linking him to the property. Brief for Appellant at 41. Roberson

is a drug possession case, not a theft case. 80 S.W.3d 730, 741 (Tex. App.—

Houston [1st Dist.] 2002, pet. ref’d). Felters v. State is more applicable to the

issues in Appellant’s case. See 147 S.W.3d 488, 490 (Tex. App.—Fort Worth

2004, pet. ref’d).




                                            40
       In Felters, the appellant was convicted of theft as a party. See id. She

challenged the sufficiency of the evidence to prove she was criminally responsible

for the theft, arguing that she “did not remove a single item of merchandise from

the store …. [or] place[] any item in [c]o-defendant’s shopping bag.” Id. Although

the court of appeals noted that mere presence at the scene was not enough, it

further observed that events before, during and after the actual offense can be

considered to determine whether the evidence was sufficient to show that an

accused was a party to an offense. Id.

       The court then focused on the specific facts of the case: the appellant and co-

defendant entered the store together, knew each other, spoke together, shopped

together, and stood together while the latter placed items – some of which the

appellant handed to her – in the co-defendant’s shopping bag. Id. When the co-

defendant went into the dressing room, the appellant remained nearby waiting for

her. Id. The two women left the store together. Id. at 491. The court concluded that

“[t]he evidence clearly reflects more than mere presence” and deferred to the jury’s

verdict. Id.

       Similar to the Felters appellant’s contention that she “did not remove a

single item” herself, Appellant asserts the evidence is insufficient to link him to the

stolen property. Brief for Appellant at 41. “A person is guilty as a party, however,

even if that person acts only intentionally or knowingly to promote or assist the


                                          41
commission of the offense by another by soliciting, encouraging, directing, aiding,

or attempting to aid the other person to commit the offense.” Felters, 147 S.W.3d

at 490. There are several facts in Appellant’s case which are similar to Felters:


    Appellant and Parramore entered the store together (III R.R. 45-46; V R.R.
     at 9; State’s Ex. 5, Part 1);

    Appellant and Parramore knew each other (State’s Ex. 11, Part 1 at
     15:10:20; State’s Ex. 5, Part 1; III R.R. at 111);

    Appellant and Parramore spoke together (State’s Ex. 5, Part 1); and

    Appellant and Parramore left close in time to one another (State’s Ex. 5, Part
     4).

See Felters, 147 S.W.3d at 490-91.

      Furthermore, whereas the appellant in Felters merely shopped with her co-

defendant, handed her a few items and stood with her as the co-defendant placed

items into her bag, in the instant case, Appellant confessed on video that he and

Parramore fenced stolen items (State’s Ex. 11, Part 4 at 15:29:20, 15:30:45). They

apparently stole merchandise with some regularity; Appellant mentioned several

stores (State’s Ex. 11, Part 3 at 15:15:45; Part 4 at 15:28:55; Part 5 at 15:31:30).

Appellant further admitted his role in distracting the clerk while Parramore stole

the merchandise (State’s Ex. 11, Part 3 at 15:14:35), though they originally

planned to steal razors (State’s Ex. 11, Part 1 at 15:10:00; Part 3 at 15:14:30). The

jury could observe the clerk walking toward Appellant as he performed exactly as

                                         42
described on video (State’s Ex. 5, Part 3), and the clerk testified that it seemed to

her that he was acting in concert with Parramore as a distraction (III R.R. at 83-

84). After Appellant followed Parramore and the clerk out of the store, he fled

when the clerk said she was calling the police (III R.R. at 75-76; State’s Ex. 11,

Part 4 at 15:17:22). In his haste, Appellant left his wallet and cell phone behind

(State’s Ex. 11, Part 4 at 15:17:20), which he did not attempt to recover prior to

trial (III R.R. at 103). Appellant said he was angry that Parramore did not give him

his ‘share’ of the profits from the theft (State’s Ex. 11, Part 1 at 15:10:30; Part 3 at

15:15:23). In sum, there was overwhelming evidence from which a reasonable jury

could conclude Appellant was a party to the offense. See Felters, 147 S.W.3d at

490-91.

      Appellant next attempts to challenge the sufficiency of the evidence to prove

the value of the merchandise. Brief for Appellant at 42. The evidence indicated that

the value of the stolen merchandise was $1,913.44 (V R.R. at 17; III R.R. at 66).

Although Appellant complains of the clerk’s reliance on the ledger, Ms. Rodriguez

– who had worked at that store for four years at the time of trial (III R.R. at 35) –

testified that the ledger was created prior to shipping at the warehouse (id. at 53),

and she recorded missing product close in time to the offense (id. at 67) after

checking invoices which she trusted to be accurate (id. at 54-55). Ms. Rodriguez

also testified the box was full (id. at 55), that she had not yet removed any cartons


                                          43
from it (id. at 52), and that it was placed behind a counter where the public did not

have access to it (id. at 75; State’s Ex. 5, Part 3). Detective Wahrmund likewise

testified that the receipt reflected the amount Parramore took (III R.R. at 121). See

Villani v. State, 116 S.W.3d 297, 307 (Tex. App.—Houston [14th Dist.] 2003, pet.

ref’d) (an investigator’s uncontroverted testimony of the value of computer

processors was legally sufficient evidence of value). Appellant stresses that the

“State even admitted the jury may not believe the quantity or value.” Brief for

Appellant at 42. However, the fact that the State prepared for contingencies before

trial is irrelevant; the jury found the testimony and evidence of value credible, and

the Court should defer to “the factfinder’s evaluation of the credibility and the

weight of the evidence.” See Kiffe, 361 S.W.3d at 108.

      Lastly, Appellant challenges the sufficiency of the evidence to show the

number of cartons allegedly contained in the box. First, to the extent Appellant

relies on alleged findings in Parramore’s case, as discussed supra (at 37-38), such

argument is outside the record. Second, the value of the theft must be proven; a

variance in the number (e.g., 32 instead of 36 cartons) would not be material unless

the corresponding lesser value results in a different offense.

      “A defect in a description of property under Art. 21.09, Tex. Code Crim.

Proc. Ann. (Vernon 1966), to constitute error, must be of such a degree as to

charge no offense against the law and be thereby void. Such is a jurisdictional


                                          44
defect which may be raised for the first time on appeal.” Sanders v. State, 675

S.W.2d 622, 623 (Tex. App.—Fort Worth 1984, no pet.). Otherwise, if not raised

by a motion to quash, any defect in the description may not be raised for the first

time on appeal. Id. at 624. As the Court of Criminal Appeals observed:

      once the defendant has been given proper notice that he must prepare
      to defend himself against a charge that he has stolen a certain
      “bundle” of property, there is no reason that he should be acquitted if
      the evidence shows him guilty of stealing enough of the “bundle” to
      make him guilty of the offense charged.... Likewise, the State should
      be allowed to plead all property which the evidence may ultimately
      prove stolen without thereby being required to prove theft of any
      larger quantum of property than the statute at issue requires.

Lehman v. State, 792 S.W.2d 82, 84–85 (Tex. Crim. App. 1990) (citation omitted)

(reviewing a theft case in which several items were alleged to have been stolen);

see also Byrd v. State, 336 S.W.3d 242, 257-58 (Tex. Crim. App. 2011) (“We

agree with the Bailey dissent that ‘[t]he word “variance” ought to be used to

describe instances in which there is a minor discrepancy between the facts alleged

and those proved, such as a difference in spelling, in numerical digits, or in some

other minor way.’” Cothern v. State, 02-13-00466-CR, 2015 WL 2169248, at *2

(Tex. App.—Fort Worth May 7, 2015, no. pet. h.) (not designated for publication)

(emphasis added); Tex. Code Crim. Proc. Ann. art. 21.09 (West, Westlaw through

2013 Sess.) (requiring indictment to include description of personal property, if

known).



                                        45
      In this case, Appellant states that “none of the video or picture evidence

admitted in trial indicated the number of cartons actually taken.” Brief for

Appellant at 42. Though Appellant again takes issue with reliance on the ledger, as

discussed supra, there was ample evidence and testimony from which a reasonable

jury could conclude the elements of the offense had been shown. Because – when

considering all the record evidence in the light most favorable to the verdict – it

cannot be said that “no rational factfinder could have found that each essential

element of the charged offense was proven beyond a reasonable doubt,” the Court

should defer to the jury’s determination and overrule Appellant’s final point of

error. See Kiffe, 361 S.W.3d at 107-08.




                                          46
                                     Prayer

      Wherefore, premises considered, Appellee respectfully prays that this

Honorable Court of Appeals affirm in all matters the judgment of the trial court in

this case.


                                                             JENNIFER THARP
                                                        Criminal District Attorney

                                                                                By

                                                             /s/ Joshua D. Presley
                                                               Joshua D. Presley
                                                                   SBN: 24088254
                                                       Assistant District Attorney
                                                 150 N. Seguin Avenue, Ste. #307
                                                     New Braunfels, Texas 78130
                                                          Phone: (830) 221-1300
                                                             Fax: (830) 608-2008
                                                   E-mail: preslj@co.comal.tx.us
                                                            Attorney for the State




                                        47
                              Certificate of Service

      I, Joshua D. Presley, Assistant District Attorney for the State of Texas,
Appellee, hereby certify that a true and correct copy of this Brief for the State has
been delivered to Appellant JERRYL ROBINSON’s attorney of record in this
matter:

      Marilee Hazel Brown
      SBN# 24046044
      marilee@hazelbrownlaw.com
      Hazel Brown Wright Reneau, PLLC
      391 Landa Street
      New Braunfels, TX 78130
      Tel: 830-629-6955
      Fax: 830-629-2559
      Attorney for Appellant on Appeal

By electronically sending it through efile.txcourts.gov to the above-listed email
address, this the 15th day of June, 2015.

                                                                /s/ Joshua D. Presley
                                                                  Joshua D. Presley




                                         48
                           Certificate of Compliance

       I hereby certify, pursuant to Rule 9.4(i)(2)(B) and Rule 9.4(i)(3) of the Texas
Rules of Appellate procedure that the instant brief is computer-generated using
Microsoft Word and said computer program has identified that there are 11,328
words within the portions of this brief required to be counted by Rule 9.4(i)(1) &
(2) of the Texas Rules of Appellate Procedure.
       The document was prepared in proportionally-spaced typeface using Times
New Roman 14 for text and Times New Roman 12 for footnotes.

                                                                /s/ Joshua D. Presley
                                                                  Joshua D. Presley




                                         49
