                                         In The
                                    Court of Appeals
                           Seventh District of Texas at Amarillo

                                          No. 07-16-00386-CR


                                    JANICE BATES, APPELLANT

                                                   V.

                                THE STATE OF TEXAS, APPELLEE

                                On Appeal from the 181st District Court
                                         Potter County, Texas
                     Trial Court No. 69,938-B, Honorable John B. Board, Presiding

                                           January 18, 2018

                                              OPINION
                          Before CAMPBELL and PIRTLE and PARKER, JJ.


         Appellant, Janice Bates, appeals her conviction for the offense of theft1 and

resulting sentence of sixteen years’ imprisonment in the Texas Department of Criminal

Justice, Institutional Division, and $2,500 fine. We will affirm the judgment of the trial

court.




         1   See TEX. PENAL CODE ANN. § 31.03 (West Supp. 2017).
                           Factual and Procedural Background


       On December 23, 2014, appellant and a male entered the JCPenney store in

Westgate Mall. Appellant and the male went to a fitting room, which the male entered.

Appellant then walked around the store selecting clothing items, including a stack of Levi’s

jeans that she picked up without looking at their sizes or prices. Appellant took the clothes

to the male in the fitting room and handed them to him. After gathering some more items

from the store and taking them to the male in the fitting room, appellant eventually entered

the fitting room with the male. After about ten minutes, the couple emerged from the

fitting room. Appellant was carrying two full JCPenney bags. Appellant walked past the

cash registers and exited the store. A JCPenney loss prevention officer stopped appellant

outside of the store. After police were called, it was determined that appellant had $882

in JCPenney merchandise in her possession.


       Appellant was indicted for the state jail felony offense of theft based on two prior

convictions for theft. See TEX. PENAL CODE ANN. § 31.03(e)(4)(D). The indictment alleged

that the offense occurred within Potter County. Immediately before trial was to begin, the

State moved to amend the indictment to specify that the offense was committed within

400 yards of Potter County. The trial court granted the motion but the indictment was not

physically altered to reflect the amendment.


       During the ensuing trial, two employees of JCPenney testified that JCPenney at

Westgate Mall is split down the middle by the Potter and Randall county line and that the

entirety of JCPenney is within 400 yards of the county line. An Amarillo police officer

testified that, because the county line splits Westgate Mall, there is an agreement



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between the two counties that persons arrested at the mall are taken to the Potter County

Jail. When the jury was charged, it was instructed that it could consider Potter County to

include the first 400 yards of Randall County. The jury returned a verdict finding appellant

guilty “as alleged in the [i]ndictment.”


       Just before the trial began, the State informed the trial court that it was seeking to

enhance appellant’s punishment by proof of two prior felony convictions. The State

informed the trial court that appellant was aware that the State was seeking

enhancement. Appellant did not object to this statement. After appellant was found guilty,

the State again addressed its intent to enhance appellant’s punishment. The State read

the enhancement allegations to the jury. In so doing, the State alleged that appellant had

“committed” one of the offenses and been convicted of the other.2 Appellant pled true to

the enhancement allegations. Based on appellant’s plea, the trial court instructed the jury

to return a punishment verdict finding the enhancement allegations to be true. The jury

returned a verdict sentencing appellant to sixteen years’ imprisonment and a $2,500 fine.


       By her appeal, appellant presents four issues. By her first issue, she contends

that the State’s verbal amendment of the indictment to allege that the theft offense

occurred within 400 yards of Potter County was error that caused appellant some harm

and counsel should be excused from objecting to this error. By her second issue,

appellant contends that the oral amendment of the indictment addressed in her first issue

was error that caused her egregious harm. By her third issue, appellant contends that

her sentence was illegal because the State did not properly plead its enhancement



       2   Certified copies of these convictions were admitted into evidence as impeachment evidence.

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allegations. By her fourth issue, appellant contends that her sentence was illegal because

the State alleged that she had only committed one of the prior felonies, rather than having

been convicted of it.


                                        Venue Issues


       By her first and second issues, appellant contends that the State’s verbal

amendment of the indictment altering the allegation that the theft offense occurred in

Potter County to allege that the offense occurred within 400 yards of Potter County was

reversible error whether counsel was excused from objecting to the jury charge or

whether assessed under the egregious harm standard.


       Both of appellant’s first two issues are addressed to the jury charge. We review a

claim of jury charge error using the procedure identified in Almanza v. State, 686 S.W.2d

157, 171 (Tex. Crim. App. 1985), overruled on other grounds, Rodriguez v. State, 758

S.W.2d 787 (Tex. Crim. App. 1988). See Barrios v. State, 283 S.W.3d 348, 350 (Tex.

Crim. App. 2009). Using that procedure, we must first determine whether the charge was

in error. Id.; Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If the charge is

not in error, no further inquiry need be made. If there is error but the appellant did not

object to the error, reversal is required if the error caused appellant egregious harm.

Almanza, 686 S.W.2d at 171. Egregious harm occurs when the error affects the very

basis of the case, deprives the defendant of a valuable right, vitally affects a defensive

theory, or makes the case for conviction clearly and significantly more persuasive. Taylor

v. State, 332 S.W.3d 483, 490 (Tex. Crim. App. 2011). However, if there was error and

the appellant did object to that error, reversal is required if the error is calculated to injure



                                               4
the rights of the defendant, i.e., if there is some harm. Barrios, 283 S.W.3d 350; Almanza,

686 S.W.2d at 171. In either case, the degree of harm is determined in light of the entire

jury charge, the state of the evidence, including the contested issues and the weight of

the probative evidence, the argument of counsel, and any other relevant information

revealed by the record of the trial as a whole. Almanza, 686 S.W.2d at 171.


       So, we must initially determine whether it was error for the trial court to charge the

jury that appellant should be found guilty if the jury determined that she committed the

offense of theft within 400 yards of Potter County when the indictment did not expressly

include such an allegation and when the State’s amendment of the indictment was not

reduced to writing on the indictment or a copy thereof. Texas Code of Criminal Procedure

article 13.04 provides that, “[a]n offense committed on the boundaries of two or more

counties, or within four hundred yards thereof, may be prosecuted and punished in any

one of such counties . . . .” TEX. CODE CRIM. PROC. ANN. art. 13.04 (West 2015). Further,

article 21.06 provides that, “[w]hen the offense may be prosecuted in either of two or more

counties, the indictment may allege the offense to have been committed in the county

where the same is prosecuted . . . .” Id. art. 21.06 (West 2009). An offense may be

alleged to have occurred in whichever county it is being prosecuted in so long as the

offense occurred within the county or within 400 yards of the county, and the indictment

does not need to specifically aver that the offense occurred within 400 yards of the county.

Rushing v. State, 546 S.W.2d 610, 611 (Tex. Crim. App. 1977). Consequently, the jury

charge’s instruction that venue extends to an offense committed within 400 yards of the

boundary of Potter County was a correct statement of the law governing the case. Thus,




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the jury charge was not in error. See Barrios, 283 S.W.3d at 350; Ngo, 175 S.W.3d at

743.


       We overrule appellant’s first two issues.


                                   Enhancement Issues


       Appellant’s third and fourth issues contend that the means utilized by the State to

seek enhancement of appellant’s punishment based on her prior felony convictions were

improper. Her third issue contends that the enhancement allegations were not properly

pled by the State.     Her fourth issue contends that the State’s oral reading of the

enhancement allegations alleged that appellant had only committed one of the offenses,

rather than having been convicted of the offense.


       As a prerequisite to presenting a complaint for appellate review, an appellant must

have raised the issue at the trial court level stating the specific grounds for objection and

received an adverse ruling. TEX. R. APP. P. 33.1(a). A defendant’s entitlement to a

pleading of the State’s intent to enhance the defendant’s punishment by proof of prior

felony convictions is a right that must be specifically invoked or else it is forfeited. See

Nelson v. State, No. 06-09-00184-CR, 2010 Tex. App. LEXIS 4908, at *14-15 (Tex.

App.—Texarkana June 29, 2010, no pet.) (mem. op., not designated for publication);

Harris v. State, 204 S.W.3d 19, 27 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d).


       In the present case, appellant did not object to the State’s announcement that it

was seeking to enhance appellant’s punishment due to two prior felony convictions. Prior

to the beginning of the trial, the State declared that it intended to enhance appellant’s

sentence based on prior felony convictions of which she had been notified. Appellant

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voiced no objection to this statement. At the beginning of punishment, the State again

indicated that it was seeking to enhance appellant’s punishment based on two prior felony

convictions, which it then read to the jury. In reading the enhancements, the State stated

that appellant had committed one of the offenses, rather than that she had been convicted

of the offense. At that time, not only did appellant not object but she actually pled true to

the enhancement allegations. Further, when she was sentenced to a term of confinement

that exceeded the range of punishment for the state jail felony for which she was

convicted and for a third-degree felony that would apply if she had only been previously

convicted of one prior felony, appellant raised no objection. Consequently, we conclude

that appellant did not preserve any error regarding the manner in which the State notified

appellant that it intended to use two prior felony convictions to enhance her punishment

to that of a second-degree felony.3 See Nelson, 2010 Tex. App. LEXIS 4908, at *14-15;

Harris, 204 S.W.3d at 27.


        Additionally, appellant pled true to the enhancement allegations and evinced no

surprise or objection when the enhancements were discussed by the State. See Nelson,

2010 Tex. App. LEXIS 4908, at *15. Nothing in the record reflects that appellant’s defense

was impaired by the State’s late indication that it was seeking to enhance appellant’s

punishment under the habitual offender statute. Mares v. State, No. 05-14-00454-CR,

2015 Tex. App. LEXIS 5514, at *6-7 (Tex. App.—Dallas May 29, 2015, no pet.) (mem.



        3  In addition to failing to object to the lack of enhancement pleading during the trial, appellant did
not file a motion for new trial raising the issue of the State having inadequately pled the enhancements or
using the “commission” of an offense for enhancement rather than a conviction. See Fairrow v. State, 112
S.W.3d 288, 293 (Tex. App.—Dallas 2003, no pet.) (reviewing claim that appellant did not receive written
notice of the State’s intent to enhance punishment under habitual offender statute even though appellant
did not object when the trial court notified him of the possibility that his sentence could be enhanced or
when he was actually sentenced because appellant timely filed a motion for new trial raising the issue).

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op., not designated for publication).    When a defendant offers no defense to the

enhancement allegations and does not request a continuance to prepare a defense,

notice given at the beginning of the punishment phase satisfies due process. Villescas

v. State, 189 S.W.3d 290, 294 (Tex. Crim. App. 2006).


                                        Conclusion


      Having determined that the trial court did not err in charging the jury regarding the

appropriate venue applicable to the case and concluding that appellant failed to preserve

her issues regarding the use of two properly sequenced prior felony convictions to

enhance her punishment, we affirm the judgment of the trial court.




                                                       Judy C. Parker
                                                          Justice


Publish.




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