                                NUMBER 13-07-00675-CR

                                COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI – EDINBURG

DARRELL KENNETH WOODS JR., A/K/A
DARELL KENNETH WOODS, A/K/A
DARRYL KENNETH WOODS,                                                                 Appellant,

                                                 v.

THE STATE OF TEXAS,                                                                     Appellee.


                      On appeal from the 138th District Court
                           of Cameron County, Texas.


                            MEMORANDUM OPINION
                 Before Justices Yañez,1 Garza, and Benavides
                    Memorandum Opinion by Justice Garza
       A Cameron County jury convicted appellant, Darrell Kenneth Woods Jr., A/K/A

       1
          The Honorable Linda Reyna Yañez, former Justice of this Court, was a member of the panel at
the time this case was argued and submitted for decision, but did not participate in deciding the case
because her term of office expired on December 31, 2010. See TEX. R. APP. P. 41.1.
Darell Kenneth Woods, A/K/A Darryl Kenneth Woods of theft of property with a value of

$100,000 or more but less than $200,000, a second-degree felony.            See TEX. PENAL

CODE ANN. § 31.03(a), (e)(6) (West Supp. 2010). The trial court sentenced Woods to

five years‘ imprisonment, with the sentence suspended and community supervision

imposed for ten years. By ten issues, which we reorganize as six, Woods argues that:

(1) the sentence violates constitutional separation of powers; (2) the evidence was

legally and factually insufficient to support his conviction; (3) the trial court erred in

admitting evidence of an extraneous offense; (4) he is entitled to a new trial because the

reporter‘s trial record has ―effectively been lost‖; (5) there is a fatal variance between the

allegations in the indictment and the proof presented; and (6) the State impermissibly

―aggregate[d] proof without having pleaded a continuing course of conduct‖ in the

indictment. We reverse and render a judgment of acquittal.

                                      I. BACKGROUND

       The indictment filed on August 16, 2006 alleged that Woods,

       on or about the 22nd day of December, 2005, and anterior to the
       presentment of this indictment, in the County of Cameron and State of
       Texas, did then and there unlawfully appropriate, by acquiring or otherwise
       exercising control over, property, to-wit: United States Currency, of the
       value of $100,000.00 or more but less than $200,000.00, from Jim
       TIPTON, the owner thereof, with intent to deprive the owner of the
       property . . . .

       Trial testimony revealed that Woods reached an agreement in 2005 with Tipton

Motors (―Tipton‖), a company operating a Ford dealership in Brownsville, Texas, under

which Woods would purchase and sell cars on the wholesale market. Woods typically

purchased vehicles at auctions and other dealerships using Tipton‘s money; he would

then attempt to sell the cars at a higher price to other retail dealerships. Woods also


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would attempt to sell used vehicles that Tipton had acquired via customer trade-ins.

Tipton gave Woods the authority to write checks on its bank account in order to make

purchases at auctions.    If Woods was successful in selling the cars he acquired, he

would pay back the original purchase price to Tipton, and he and Tipton would then split

any remaining profit according to the terms of their agreement.

      Rodney Herring, Tipton‘s general manager, testified that in October 2005, Woods

approached Herring and Tipton‘s owner, Jim Tipton, about purchasing cars from Tipton‘s

inventory to sell to other retail dealerships in other parts of the state. According to

Herring, Tipton would reassign the titles to vehicles to Woods in exchange for ―sight

drafts,‖ which are bank drafts that are payable on demand.   See Temple-Eastex, Inc. v.

Addison Bank, 672 S.W.2d 793, 797 (Tex. 1984). The sight drafts had the words ―Call

For Check‖ written on them, indicating that Woods would pay by check once he obtained

the funds.   Herring explained further:

      Q. [Prosecutor]       Now at the time that this relationship changed, you
                            were giving [Woods] titles and he was giving you the
                            sight drafts, right?

      A. [Herring]          Right.

      Q.                    Okay. How many cars did he take from you in this
                            fashion?

      A.                    Probably, 25.   I would guess.

      Q.                    And with those first few cars, . . . were there any
                            problems with what was going on?

      A.                    No, sir.

      Q.                    Okay. When it said ―Called [sic] For Check,‖ on the
                            sight draft, what procedures did you all take to get
                            paid?


                                            3
A.          When we would get the title we would give it to Mr.
            Woods and we would ask for a check.

     ....

Q.          Then something else happened?

A.          Right.

Q.          What else happened?

A.          We quit getting paid.

Q.          Okay. Tell us how you first discovered that was
            happening?

A.          Kind of by accident. I was having lunch at Shoney‘s
            with a friend that works with me. And some folks
            from another dealership just approached me and
            asked me if I was doing business with a something
            Woods—or ―Wood.‖ And I said, ―No, I don‘t think so.‖
            And they described him physically to me. And I said,
            ―Well, maybe I am.‖ And they proceeded to tell me
            stories about the dealings that their store had had with
            him. And [they] just said, ―Look. You might want to
            look at your books, and just double check things.‖

     ....

            I went back to the store and started looking at our
            wholesaler receivable schedules, and basically—just
            making sure that I collected the money that was due.

Q.          Would you say from your end, your relationship with
            Mr. Woods changed at that point?

A.          Yes, sir.

Q.          In what way did it change?

A.          Well, I became a bill collector.

Q.          Okay. And summarizing the relationship you had
            with him through the ongoing ones, just in summary,
            what happened? Did you ever collect?


                             4
         A.                  Ah—we collected some, yes; we did not collect all.

The prosecutor asked Herring about nine specific vehicles that were allegedly resold by

Woods but for which Woods did not pay Tipton.         As to each of the vehicles, Herring

testified that either: (1) Tipton called Woods for the check representing the proceeds

from the sale of the vehicle, as instructed on the sight drafts, but Woods never produced

the check; or (2) Woods purchased the vehicle using a check drawn on Tipton‘s account,

but never paid back those amounts after having resold the vehicle.

         State‘s exhibit number sixteen, a demonstrative exhibit, detailed Herring‘s prior

testimony as to ―all of the transactions at the prices that [Tipton] sold them for.‖ Herring

agreed with the prosecutor that the figures on exhibit sixteen represented ―what [Tipton]

gave [the cars] to . . . Woods for.‖   Exhibit sixteen consisted entirely of the following

chart:

 2006    YEAR            DESCRIPTION                    STOCK#             AMOUNT
 DATE
  22-Dec    2002         EXCURSION                      EA85830                 21500.00
  20-Dec    2001         F-150                          NB02469A                 7500.00
  29-Dec    2002         F-150                          KC43985                 11500.00
  24-Jan    2001         EXPLORER                       UA39513                  5000.00
  24-Jan    2004         F-150                          KA10257                 21500.00
  27-Jan    2005         FREESTYLE                      GA32521                 19000.00
  24-Mar    1999         CONTOUR                        K190857                  2000.00
  19-Nov    2000         DODGE                          F149984                  5820.00
  19-Nov    1999         F350                           EE50736                 12020.00
   6-Jun                                                           7851         -2000.00
  11-Nov                                                          11748         -5900.00
                                                                            –––––––––––
                         TOTAL                                                  97940.00

According to Herring, the two negative numbers appearing at the bottom of the

―AMOUNT‖ column in exhibit sixteen represented sums that were received by Tipton

from ―Buggy‘s,‖ a used car dealership located in San Benito, Texas, for the 1999 Contour


                                             5
and 2000 Dodge vehicles.        Herring stated on cross-examination that Woods sold those

two cars to Buggy‘s but did not provide Buggy‘s with the title to the cars, which remained

with Tipton. Tipton did not deliver the titles to Buggy‘s until Buggy‘s paid the amounts

listed as negative figures on exhibit sixteen. The owner of Buggy‘s testified that he paid

twice for both the 1999 Contour and 2000 Dodge:         once to Woods for the car itself, and

once to Tipton for the title.   Herring emphasized that the two payments were made by

Buggy‘s and not by Woods and that, if the negative amounts were removed, the

―TOTAL‖ amount listed would exceed $100,000.

       Woods testified in his own defense.        Defense counsel presented documents to

Woods which Woods testified were ―control detail reports‖ and ―recap sheets‖ produced

by Tipton with respect to several of the vehicles.      According to Woods, a recap sheet

―recaps [the dealership‘s] profit or losses‖ with respect to a particular car. Woods stated

that the recap sheet for 2001 F-150 reflected that Tipton incurred a $1,000 loss on that

vehicle. Woods stated that this was because Tipton purchased the truck for $8,500 but

later sold it to Woods for only $7,500. Woods agreed with defense counsel that, ―had

[Woods] not paid for this vehicle,‖ Tipton‘s loss as reflected on the recap sheet should

have been the entire $8,500 that Tipton originally paid out. Woods further testified that

the recap sheets for the 2001 Explorer, 2004 F-150, 2005 Freestyle, 1999 Contour, and

2002 F-150 reflected that Tipton earned profits of $6,000, $1,000, $1,715.75, $1,050,

and $1,500 on those vehicles, respectively.       As to each of the vehicles, Woods testified

that, had he not paid Tipton as promised, the recap sheets would have reflected losses

instead of profits. Woods flatly denied that he owed any money to Tipton.

       The jury was instructed only as to the second-degree felony offense of theft of


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property with a value of $100,000 or more but less than $200,000.                        See TEX. PENAL

CODE ANN. § 31.03(a), (e)(6).                 The jury charge tracked the indictment.                     No

lesser-included offense was included in the jury charge, and neither the State nor the

defense objected to the charge. Woods was convicted and sentenced to five years‘

imprisonment with the sentence probated for ten years. This appeal followed.

                                             II. DISCUSSION

        By his second issue on appeal, Woods argues that the evidence was insufficient

to support his conviction.2 In determining whether evidence is sufficient to support each

element of a criminal offense that the State is required to prove beyond a reasonable

doubt, we apply only a legal-sufficiency standard.                Brooks v. State, 323 S.W.3d 893,

895 (Tex. Crim. App. 2010).           Under such a standard, we consider the evidence in the

light most favorable to the verdict to determine whether any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.                       Jackson v.

Virginia, 443 U.S. 307, 319 (1979); see Sanders v. State, 119 S.W.3d 818, 820 (Tex.

Crim. App. 2003). We give deference to ―the responsibility of the trier of fact to fairly

resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts.‖ Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.

2007) (citing Jackson, 443 U.S. at 318-19). When faced with conflicting evidence, we

presume that the trier of fact resolved any such conflict in favor of the prosecution, and

        2
           We note that Woods did not challenge the sufficiency of the evidence at the trial court by either a
motion for directed verdict, motion for judgment notwithstanding the verdict, or motion for new trial.
However, it is not necessary to preserve such challenges for appeal. See Rankin v. State, 46 S.W.3d 899,
901 (Tex. Crim. App. 2001) (―A claim regarding sufficiency of the evidence need not be preserved for review
at the trial level and is not waived by the failure to do so.‖) (citing Proctor v. State, 967 S.W.2d 840, 842
(Tex. Crim. App. 1998); Lemell v. State, 915 S.W.2d 486, 490 (Tex. Crim. App. 1995); 40 GEORGE E. DIX &
ROBERT O. DAWSON, TEXAS PRACTICE, CRIMINAL PRACTICE AND PROCEDURE § 3.65 (Supp. 2000)); see also
McFarland v. State, 930 S.W.2d 99, 100 (Tex. Crim. App. 1996) (―An appellate court must always address
challenges to the sufficiency of the evidence.‖).

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we defer to that resolution.   State v. Turro, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).

       Sufficiency of the evidence is measured by the elements of the offense as defined

by a hypothetically correct jury charge.   Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.

App. 1997).   Such a charge would be one that accurately sets out the law, is authorized

by the indictment, does not unnecessarily increase the State‘s burden of proof or

unnecessarily restrict the State‘s theories of liability, and adequately describes the

particular offense for which the defendant was tried.   Id.   Under a hypothetically correct

jury charge, Woods committed the indicted offense if he:        (1) unlawfully appropriated

United States currency; (2) with a value of $100,000 or more but less than $200,000; (3)

with intent to deprive Tipton of that property.   See TEX. PENAL CODE ANN. § 31.03(a).

Appropriation of property is unlawful if it is without the owner‘s effective consent.   Id. §

31.03(b)(1). ―A person acts intentionally, or with intent, with respect to the nature of his

conduct or to a result of his conduct when it is his conscious objective or desire to

engage in the conduct or cause the result.‖ Id. § 6.03(a) (West 2003).

       Penal code section 31.09 provides that, ―[w]hen amounts are obtained in violation

of this chapter pursuant to one scheme or continuing course of conduct, whether from

the same or several sources, the conduct may be considered as one offense and the

amounts aggregated in determining the grade of the offense.‖ TEX. PENAL CODE ANN. §

31.09 (West 2003). In Whitehead v. State, the court of criminal appeals stated:

       [E]verything that must be proved must be pleaded in the
       indictment. . . . Since the State may aggregate the values of particular
       items of property only if that property was taken during a continuing course
       of conduct, the State must allege that the property was so taken in the
       indictment. Thus, . . . the allegation that the values of the property taken
       were aggregated because that property was taken pursuant to a continuing
       course of conduct is an element of the offense and must be included in the
       indictment.

                                             8
              ....

       Moreover, since [penal code section 31.09] says that ―the conduct may be
       considered as one offense,‖ each separate theft need not be alleged.
       Rather, the offenses may be aggregated according to [section 31.09] as
       long as the offenses were committed pursuant to the same scheme or one
       continuous course of conduct, and the proper allegations are included in
       the charging instrument.

745 S.W.2d 374, 376-77 (Tex. Crim. App. 1988) (emphases in original) (citing Turner v.

State, 636 S.W.2d 189 (Tex. Crim. App. 1980)).

       In the instant case, the indictment does not allege that the total amount

appropriated—between $100,000 and $200,000—was obtained by aggregating the

values of property stolen pursuant to one ―continuing course of conduct‖ or scheme.

See id.   Moreover, the State did not allege or prove that any single item of property

appropriated by Woods had a value exceeding $100,000.

       As the court of criminal appeals held in Thomason v. State, ―[o]nly when an

indictment additionally alleges that the property was taken ‗pursuant to one scheme or

continuing course of conduct,‘ does the indictment charge an aggregated theft under

[section] 31.09.‖    892 S.W.2d 8, 11 (Tex. Crim. App. 1994).    Here, as in Thomason,

―the indictment charged an offense of theft under [section] 31.03 and the State was

committed to that theory of prosecution.‖   Id. at 12. Therefore, while the evidence may

have been sufficient to show that Woods stole various items of property, the aggregated

values of which exceeded $100,000, that was not the offense charged by the State.

The only offense charged was theft of a single item worth more than $100,000, which the

State did not even attempt to prove. The evidence was legally insufficient to support

Woods‘s conviction of that offense.     See Jackson, 443 U.S. at 319; Sanders, 119


                                            9
S.W.3d at 820.

      Woods‘s second issue is sustained. Because this issue is dispositive, we need

not address Woods‘s remaining issues.

                                   III. CONCLUSION

      We reverse the judgment of the trial court and render judgment of acquittal.




                                                      DORI CONTRERAS GARZA,
                                                      Justice

Do not publish.
TEX. R. APP. P.47.2(B)

Delivered and filed the
26th day of May, 2011.




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