   FF1 I{1 El). an(I 01)111101) hlud this 21’’ day of lvbruarv. 2013.




                                                in The
                                       Lnurti\ppi.at&i
                                                iii
                           ii1th OhUrirt rf cxai at a11ai
                                         o.   05—1 1—0063—CR

                         MICHAEL WI LLIAM BARTLOME, Appellant
                                          V.
                             TILE STATE OF TEXAS, Appellee

                        On Appeal from the Criminal District Court No. 4
                                        1)allas Count, Texas
                               Trial   Court Cause No. F11-50865-l(


                                              OPINION
                           l3efore Justices Filz(ierald, Fillmore, and Evans
                                     Opinion by Justice hilmore
           Michael WI! ham l3artlome was charged with theft of property in an amount less than

$1 500 having two prior misdemeanor theft convictions, which was a state jail felony, See TEX.

PlcAi, Coiw ANN.         31 .03(e)(4)(D) (West Supp. 2012).       The indictment also alleged in

enhancement paragraphs that l3artlome had two prior state jail felony convictions for

unauthorized use of a motor vehicle. See TEX. PENAl, CoDE ANN.          12.425(a) (West Supp. 2012)

(if on the trial of a state jail felony, it is shown defendant has previously been convicted of two

state jail felonies punishable under section 1 2.35(a), defendant shall be punished for third degree

felony).    The jury found Bartlome guilty of the theft offense, found the alleged enhancement

paragraphs to be true, and assessed punishment of eight years’ imprisonment and a $10,000 fine.

In one issue. Bartlome asserts a variance between the allegations in the indictment and the proof
 at trial renders the evidence   msufhcwnt   to support the conviction. We aftirm the trial court’s

judgment.

                                                Background

        I-larry Scoville has delivered packages for United Parcel Service on the same route for the

past ten years. Approximately sixty percent of the packages Scoville delivers are to residential

addresses and at least half of the residents are not home when Scoville delivers the package.

Scoville’s duties include ensuring the intended recipient receives the package addressed to him.

If a shipper has indicated a package can be left at a residence without someone signing tbr the

package, Scoville leaves the package out of sight from the street, if possible, due to a concern

that someone will steal the package.    Although packages were rarely stolen on Scoville’s mute.

around the time of the offense in this case, packages were being taken approximately three to

four times per week.

        On January 5. 2011, Scovifle delivered three packages to 6345 Richmond Street in

Dallas, Texas.    Scoville placed the packages inside the screen door.       After delivering the
packages, Scoville was “setting up” the next section of his truck in the order the packages would

be delivered when he saw Bartlome walking down the street Although Scoville initially was not

concerned about Bartlome. when Scoville got out of the truck, Bartlome “looked directly at

him.” At that point, Scoville knew “there was something going down.”

       Bartlome sat on the steps in front of a house. Scoville drove down the block and

delivered another package. When Scoville looked back, he saw Bartlome walking across the

street Scoville decided to drive around the block. When he did, he saw Bartlome with three

packages in his hands. After Scoville got out of the truck, Bartlome threw two of the packages at




                                                 2
 him and ‘tuok oil running.” Scoville caught Bartlome and held him (or the police. Scoville did

 not give Ban tome permission to take the packages.

        Christopher Byrd tcstittcd he lives at 6345 Richmond Avenue in Apartment Ii Byrd

ordered bicycle parts from two different companies and paid approximately sixty-three dollars

 for the parts. On January 5. 2011, the police called him and said someone attempted to take the

packages containing the bicycle parts from his porch. Byrd did not give anyone permission to

take the packages.

        Bartlome was indicted for theft. The indictment alleged Scoville was the owner of the

packages and had not given Bartlome permission to take them. The jury found Bartlome guilty

of the charged offense, found the enhancement paragraphs were true, and assessed punishment of

eight yeats’ imprisonment and a $10,000 fine.

                                            Analysis

        Bartelome argues the evidence is insufficient to support the conviction because there is a

material variance between the person the State alleged owned the property, Scoville, and the

actual owner of the property, Byrd.      We review the sufficiency of the evidence under the

standard set out in Jackson v. VIrginia, 443 U.S. 307 (1979). Adames v. State, 353 S.W.3d 854,

859 (Tn. Crim. App. 2011), caL denied, 132 S. Ct 1763 (2012). We examine all the evidence

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

have found the essential elements of the offense beyond a reasonable doubt Jackson, 443 U.S.

at 319; !vferrin v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). A variance occurs when

there is a discrepancy between the facts alleged in the charging instrument and the proof offered

at trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001). A variance in pleading

and proof can involve either the statutory language that defines the offense or a non-statutory




                                                3
 allegation that is descriptive of the offense in some way. Johnson v. Slate, 364 S.W.3d 292.294

 ([cx. (rim. App.).       ccii.   denied. 133 S. Ct. 536 (2012). Only a material variance between the

 charging instrument and the proof at trial will render the evidence insufficient to support the

 conviction. Grillihar, 46 S.W.3d at 257.

             A person   commits    theft if he unlawfully appropriates property with the intent to deprive

the owner of the property. Tex. LENa CODE ANN. §31.03(a); see also Byrd v. State, 336

S.W.3d 242. 250 (Tex. Crim. App. 2011) (“the gravamen of theft is in depriving the true owner

of the use, benefl6        ei/oyment    or value   of   his property, without his consent” (emphasis in
original )). Although the name of the owner is not a substantive element of the ofThnse, the code

of criminal procedure requires the State to allege the name of the owner of the property in its

charging instrument. Byrd, 336 S.W.3d at 251; see also TEX. CODE C1UM. PROC. ANN. arts.

21.08. 21.09 (West 2009). The State is required to prove, beyond a reasonable doubt, that the

person alleged in the indictment as the owner is the same person as shown by the evidence.

Byrd, 336 S.W.3d at 252.

             ‘Where one person owns the property, and another person has the possession of the same,

the ownership thereof may be alleged to be in eitheC TEx. CODE CLUM. PROC. ANti, art. 21.08;

see atco Garza v. State, 344 S.W.3d 409,412—13 (Ta. Crim. App. 2011) (“A ‘special owner’ is

an individual who is in custody or control of property belonging to another person.” (quoting

Ilarreil v. State, 852 S.W.2d 521, 523 (Tex. Crim. App. 1993)). An owner is a person who “has

title to the property, possession of the property, whether lawfiul or not or a greater right to

possession of the property than the actor[.]” Thc PENAL CODE ANN.                §   l.07(aX35XA) (West
Supp. 2012). “Possession” is the “actual care, custody, control, or management” of the property.

Id. at   §   I .07(a)(39); see also Garza, 344 S.W.3d at 413. “[T]o give ownership status to anyone




                                                        4
with a riional uunueuiioi) to the pr()prtv. ilie icslaIurc has ,ivcn ‘()wnr an expansive

inLafling              onc    ii   wing       possoi ‘        mid ist in        thd   pm opci tx   through titk.                 ssLsslon, v   hcthem

 hi\v liii or   iiot    or a rucater          nrlit to   possession ot         the property than the dck’nd;iiit. is a                     OWHCF     ol

the property:’ Gurza, 344 SW3d at 413: Freeman v, State, 707 SW2d 597, 603 (fex. Crim,

App I              ) (p1w ii tt op        I    ‘t    a/so   Ii   \    Pt   \I (       ii>!   \N\      I 07(      i)(        )( \ )      I ( hi... kL\ to

answering the question of which                          person      has the greater right to possession                        of   the property is

w ho    at   tin       tImc   of i1i      oniiilis    lOfl 0/    ih    0/IL   a %(    h id the nri.      mtL r   or    hi   to p        sion ot     thd

property: Freeman, 707 S.W.2d                         at   603 (emphasis in original).

          Bartlume argues the State alleged Scoville was the owner of the packages, but proved

Byrd was the actual owner. Although Byrd was to be the ultimate recipient of the property,

Scovi lie was responsible For delivering the packages to the intended recipient. In January 2() I I

packages that Scoville had delivered on his route were being stolen, Therefore, he attempted to

ensure the packages reached Byrd by placing them inside the screen door to shield them                                                           from


view from the street. Because Bartlome’s behavior after Scoville delivered the packages made

him suspicious that “something was going down,” Scoville drove around the block in an                                                        attempt


to ensure the packages he had left for I3yrd were safely delivered. Under these circumstances,

Scovilic, at the time of the commission of the offense, clearly had a greater right to possession of

the packages than Bartlome. See Freeman, 707 S.W.2d at 603;                                        see    e.g. flat/and v. State, 87 Tex.

Crim. 89. 92, 219 S.W. 458, 459 (1920) (op. on rch’g) (care, control, and management of

property, when lost or taken, was in mail carrier, and would remain in him until the same had

been delivered to the real owner or at his office, or there was evidence that right of possession of

mail carrier was interfered with or changed and, because last lawful possession of property was

in mail carrier, allegation of ownership should have been mail carrier).
       We conclude there is no variance between the facts alleged in the indictment and the facts

proved at trial. Further, there is legally sufficient evidence to support the jury’s finding that

Scoville was the owner of the packages. Accordingly, we resolve Bartlome’s sole issue against

him and affirm the trial court’s judgment.




                                                   ROBERT M. FILLMORE
                                                   JUSTICE

Do Not Publish
Tnx. R. Ai P.47

110683F.1J05




                                              6
                                           0
                               Qøiirt nf Anzt1
                       FiftI Ji,rdrict uf ixa tt 3a11as
                                           JUDGMENT

MICHAEL WiLLIAM I3ARTLOME,                            On Appeal from the Criminal District Court
Appellant                                             No. 4, Dallas County, Texas
                                                      Trial Court Cause No. FI1-50865-K.
No. 05-11 -00683-CR       V.                          Opinion delivered by Justice Fillmore.
                                                      Justices FitzGerald and Evans participating.
THE STATE OF TEXAS, Appellec

       Based on the Court’s   opinion   of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this l
                      2 day
                            of February, 2013.



                                                         7/
                                                               /




                                                     ROBERT M. FILLMORE
                                                     JUSTICE
