      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-00-00404-CR



                               Shawn Allen Richeson, Appellant

                                                v.

                                 The State of Texas, Appellee




     FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
           NO. 50,272, HONORABLE JOE CARROLL, JUDGE PRESIDING




               A jury found appellant Shawn Allen Richeson guilty of theft and assessed punishment

at incarceration in a state jail for six months and a $10,000 fine. See Tex. Penal Code Ann.

§ 31.03(a), (e)(4)(A) (West Supp. 2001). We will affirm.

               In April 1999, appellant, doing business as Web Services, ordered twenty-five

computer systems from Vision Computers in Tempe, Arizona. The purchase price was $15,375, with

payment to be cash on delivery. Vision shipped the computer systems the following month. Upon

receipt, appellant gave a check for the purchase price on the back of which he wrote a restrictive

endorsement prohibiting payment until June 30, six weeks later. Vision had not agreed to such a

condition. When the check was presented for payment, there were no funds in the account.

Appellant later tendered a check for $1375 to Vision, which represented payment for two of the

systems. This check was not negotiated. Appellant also returned ten of the computers to Vision,

although there is evidence that he removed memory cards and other components from them before
doing so. Vision’s efforts to collect payment for the other computer systems, or to recover their

possession, were unsuccessful.

               The indictment alleged that appellant “unlawfully appropriate[d] property, to wit: 25

computer systems, of the value of $1,500 or more but less than $20,000 with the intent to deprive

the owner, Anthony Stover, of said property.”1 The district court’s jury charge tracked the

indictment, requiring the jury to find beyond a reasonable doubt that appellant unlawfully

appropriated twenty-five computer systems in order to convict. Appellant contends that because he

tendered payment for two computers and returned several others, the evidence is legally insufficient

to sustain a conviction for theft of twenty-five computer systems as alleged in the indictment and

incorporated into the jury charge.2

               In essence, it is appellant’s contention that a fatal variance exists between the

allegations in the indictment and the proof at trial. The sufficiency of the evidence to sustain a

criminal conviction is measured by the elements of the offense as defined in a hypothetically correct

jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The court

of criminal appeals recently explained the application of Malik in cases of alleged variances between

the pleading and the proof:


        [W]e hold that when faced with a sufficiency of the evidence claim based upon a
        variance between the indictment and the proof, only a “material” variance will render

   1
       Stover was Vision Computer’s office manager.
   2
      Appellant’s point of error is stated as a challenge to the legal sufficiency of the evidence, but
he also asserts that the evidence is factually insufficient. Because appellant does not bring forward
any argument in support of this assertion, we do not reach it. See Martinets v. State, 884 S.W.2d
185, 188-89 (Tex. App.—Austin 1994, no pet.) (op. on reh’g).

                                                  2
       the evidence insufficient. Thus, the hypothetically correct charge will take into
       consideration the fatal variance doctrine formerly expressed by this Court and today
       reaffirmed. Allegations giving rise to immaterial variances may be disregarded in the
       hypothetically correct charge, but allegations giving rise to material variances must
       be included.


Gollihar v. State, 46 S.W.3d 243, 257 (Tex. Crim. App. 2001) (footnote omitted). The court added:


        A variance between the wording of an indictment and the evidence presented at trial
        is fatal only if “it is material and prejudices [the defendant’s] substantial rights.”
        When reviewing such a variance, we must determine whether the indictment, as
        written, informed the defendant of the charge against him sufficiently to allow him to
        prepare an adequate defense at trial, and whether prosecution under the deficiently
        drafted indictment would subject the defendant to the risk of being prosecuted later
        for the same crime.


Id. (quoting United States v. Sprick, 233 F.3d 845, 853 (5th Cir. 2000)).

                The indictment in this cause informed appellant that he was accused of stealing

computers having a value of at least $1500 but less than $20,000 from Anthony Stover. There is

nothing in the record to indicate that the precise number of computers at issue was crucial to the

defense. There is no danger that the alleged variance might give rise to another prosecution for the

same crime. We conclude that the alleged variance is immaterial and should be disregarded in

determining the sufficiency of the evidence under a hypothetically correct jury charge. Because

appellant’s challenge to the legal sufficiency of the evidence rests solely on this immaterial variance,

it is without merit.3 Point of error eight is overruled.




   3
     Because we conclude that the alleged variance is immaterial, we do not decide if the evidence
does or does not support a finding that appellant unlawfully appropriated all twenty-five computers.

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               Appellant’s first point of error is that the district court erred “when it denied

Appellant’s Motion in Limine to exclude reference to extraneous crimes or misconduct.” Appellant

filed a motion in limine asking that the State be prohibited from offering evidence of extraneous

matters without first obtaining a ruling from the court outside the jury’s presence on the admissibility

of the evidence. This motion was granted. During the testimony of the police officer who

investigated this case, the prosecutor approached the bench and told the court that he intended to

question the officer about certain extraneous offenses for the purpose of showing appellant’s motive,

intent, and design. See Tex. R. Evid. 404(b) (evidence of other crimes, wrongs, or acts). The court

stated, “I’m going to deny the . . . motion in limine . . . for the purpose of considering the evidence

. . . .” This is the ruling of which appellant now complains. The prosecutor then asked the officer

the questions he proposed to ask in front of the jury, after which defense counsel told the court,

“Your honor, if that’s the extent of his testimony . . . we have no objection.” The jury was returned

and the testimony was adduced without objection by appellant.

               A ruling on a motion in limine does not preserve error. Harnett v. State, 38 S.W.3d

650, 655 (Tex. App.—Austin 2000, pet. ref’d). Appellant voiced no objection to the officer’s

testimony. See Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a) (contemporaneous objection rule). In

his argument in support of this point of error, appellant does not refer us to any particular testimony

he contends was improperly admitted. Point of error one presents nothing for review and is

overruled.

               In points of error two and three, appellant contends the court erroneously permitted

two witnesses to testify to extraneous transactions in which they sold goods to appellant for which



                                                   4
he refused to pay after delivery. In point of error four, appellant contends the court erroneously

permitted the State to cross-examine him about other extraneous transactions. Appellant argues

under each point that the testimony was irrelevant, but he does not support these assertions with

pertinent argument. See Tex. R. App. P. 38.1(h) (appellant’s brief must contain argument for

contentions made). Appellant also urges that the extraneous transactions were too remote. See Tex.

Pen. Code Ann. § 31.03(c)(1) (West Supp. 2001) (evidence of recent similar transactions admissible

to show knowledge or intent). Appellant did not make this objection to the district court. See Tex.

R. App. P. 33.1(a)(1). Finally, appellant contends that one of the extraneous misconduct witnesses

was estopped from testifying under the terms of a settlement agreement he signed to conclude

litigation with appellant growing out of the transaction in question. Once again, this contention was

not presented to the district court. Points of error two, three, and four are overruled.

                Before the two extraneous misconduct witnesses testified, the district court instructed

the jury to consider their testimony only to determine appellant’s intent and motive. See Tex. R.

Evid. 105(a) (limiting instruction); see also Rankin v. State, 974 S.W.2d 707, 712 (Tex. Crim. App.

1996) (limiting instruction should be given at first opportunity). The court included a similar limiting

instruction in its charge to the jury. In points of error five and six, appellant contends the limiting

instructions were defective because they referred to “extraneous offenses” rather than to “extraneous

transactions,” and because they did not require that the extraneous transactions be “recent” and

“similar.” Appellant did not object to the limiting instructions given at the time the witnesses testified,

thereby waiving any error. See Tex. R. App. P. 33.1(a)(1). He also did not object to the limiting

instruction contained in the jury charge. See Posey v. State, 966 S.W.2d 57, 61 (Tex. Crim. App.



                                                    5
1998) (general rules of procedural default apply to jury charge error; ordinarily, defendant must

object to charge before he may complain on appeal). Even if we assume that the jury charge was

fundamentally erroneous, appellant does not suggest how he was egregiously harmed by the

instructions given. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on

reh’g) (reversal for fundamental error only if egregious harm results). Points of error five and six are

overruled.

                Appellant did make one objection to the jury charge, and it is the subject of his seventh

point of error. Appellant objected to the definition of “effective consent” insofar as it stated that

consent is not effective if “induced by deception or coercion.” Tex. Penal Code Ann. § 31.01(3)(A)

(West Supp. 2001). Appellant urges that there was no evidence that the complaining witness was

induced to ship the computers to appellant by a false impression of law or fact created by appellant.

See id. § 31.01(1) (defining “deception”). Appellant contends that the delivery of the computers

could not have been obtained by deception because the worthless check was given after they were

delivered.

                The evidence shows that before selling the computers to appellant, Vision asked

appellant for credit references. The information provided to Vision by appellant included a bank

account in which appellant kept substantial funds. When the computers were delivered, however,

appellant wrote the payment check on an account in another bank in which there were no funds. The

evidence also shows that appellant did not inform Vision that, as he acknowledged at trial, he

routinely placed restrictive endorsements on payment checks by which he sought to delay payment

and effectively force the seller to extend him credit. This evidence supports a finding that appellant



                                                   6
created a false impression of fact that was likely to affect Vision’s judgment in the transaction. No

error is shown. Point of error seven is overruled.

               The judgment of conviction is affirmed.




                                              __________________________________________

                                              Lee Yeakel, Justice

Before Chief Justice Aboussie, Justices Yeakel and Patterson

Affirmed

Filed: August 30, 2001

Do Not Publish




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