                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-10-00056-CR
                               No. 10-10-00057-CR

JAMES EDWARD MOTT,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                         From the 40th District Court
                             Ellis County, Texas
                   Trial Court Nos. 33092CR and 33093CR


                         MEMORANDUM OPINION


      In Cause No. 10-10-00056-CR, the jury convicted James Edward Mott of burglary

of a habitation and assessed his punishment at 80 years in prison. TEX. PENAL CODE

ANN. 30.02(a) (Vernon 2003). In Cause No. 10-10-00057-CR, the jury convicted Mott of

tampering with a governmental record and assessed his punishment at 5 years in

prison. TEX. PENAL CODE ANN. 37.10(a) (Vernon Pamph. 2010). We affirm.

                            BURGLARY OF A HABITATION

      Mott asserts two issues on appeal for his conviction of burglary of a habitation.
Mott first argues that the evidence is legally and factually insufficient to support his

conviction. Mott argues in his second issue that he received ineffective assistance of

counsel.

Sufficiency of the Evidence

        Mott argues that the evidence is legally and factually insufficient to support his

conviction. The Court of Criminal Appeals has recently decided that the Jackson v.

Virginia legal sufficiency standard is the only standard that a reviewing court should

apply in determining whether the evidence is sufficient to support each element of a

criminal offense. Brooks v. State, No. PD-0210-09, 2010 WL 3894613 (Tex. Crim. App.

Oct. 6, 2010). Therefore, we will review Mott’s sufficiency argument under the standard

set out in Jackson v. Virginia, 443 U.S. 307 (1979).

        In reviewing the legal sufficiency of the evidence to support a conviction, we

view all of the evidence in the light most favorable to the prosecution in order 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. at 319; Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Furthermore, we must consider all the

evidence admitted at trial, even improperly admitted evidence, when performing a

legal sufficiency review. Clayton v. State, 235 S.W.3d at 778; Moff v. State, 131 S.W.3d

485, 489-90 (Tex. Crim. App. 2004). The standard of review is the same for direct and

circumstantial evidence cases; circumstantial evidence is as probative as direct evidence

in establishing an actor's guilt. Clayton v. State, 235 S.W.3d at 778; Hooper v. State, 214

S.W.3d 9, 13 (Tex. Crim. App. 2007).

Mott v. State                                                                         Page 2
         Richard and Kay Jones were out of town and their son, Kevin, went by their

house. Kevin noticed that the entry door of the house was open and that the glass pane

on the door was broken. Kevin called the Ellis County Sheriff’s office and his parents.

         Kay testified that when she and Richard returned home, they went through each

room of the house to determine missing items. The missing items included a laptop

computer, two cameras, jewelry, a pistol, and numerous personal documents. Richard

and Kay also testified that unique commemorative coins were taken and a gold

Krugerrand coin. The commemorative coins were from a Las Vegas casino.

         The Jones’s neighbor testified that on the day of the burglary, he saw a white

Chevrolet pickup at the Jones’s house. The neighbor saw a man who appeared to be

between the ages of twenty-five and thirty walking to the pickup from the Jones’s

house.

         The Desoto police recovered a white 2004 Chevrolet pickup that had been

reported stolen. Located inside the pickup were various documents belonging to the

Joneses including the birth and death certificates of Richard’s parents, a driver’s license

and military discharge papers for Richard’s father, and a wedding photograph of

Richard’s parents.

         Lieutenant Jason Westmoreland, with the Ellis County Sheriff’s office, testified

that he interviewed Macy Martin as part of his investigation of the burglary at the

Jones’s house. Lieutenant Westmoreland asked Macy if she had any information about

coins. Macy told Lieutenant Westmoreland that her mother, Christy, and Mott sold

some coins at the Dallas Gold and Silver Exchange.           Macy also told Lieutenant

Mott v. State                                                                        Page 3
Westmoreland that Mott was driving a white Chevrolet pickup.

        Lieutenant Westmoreland obtained surveillance video from the Dallas Gold and

Silver Exchange. He identified Mott and Christy in the video.      The day after the

burglary of the Jones’s house, Mott sold gaming coins and a gold Krugerrand to the

Dallas Gold and Silver Exchange.

        Lieutenant Westmoreland obtained a warrant for Mott’s arrest. He executed the

search warrant near a pawnshop where Mott was attempting to sell a four-wheeler

ATV. Mott was driving a black Ford pickup that had been reported stolen. Lieutenant

Westmoreland found various documents in the pickup including titles to various

vehicles. He also found an altered driver’s license. Lieutenant Westmoreland testified

that Mott had on his person a driver’s license with his picture, but another person’s

name. The State offered into evidence a picture of Mott’s driver’s license with the

picture cut out. The State also offered into evidence the driver’s license of another

person with Mott’s picture taped onto the license. Mott’s license had been suspended,

but the other license containing Mott’s picture was valid.

        Kay Jones testified that after hearing that an arrest had been made in the

burglary of her home, she asked to see a picture of the person arrested. Kay testified

that she recognized the person in the photograph shown to her. Kay stated that that

person had come to her house approximately a week before the burglary. The person

rang the doorbell, but Kay did not answer the door. Kay observed the person through a

window near the door.

        Mott argues that there is no physical evidence linking him to the burglary.

Mott v. State                                                                   Page 4
Circumstantial evidence is as probative as direct evidence in establishing an actor's

guilt. Clayton v. State, 235 S.W.3d at 778; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.

App. 2007). Items from the Jones’s home were located in a white Chevrolet pickup

linked to Mott. Mott sold various coins and a gold Krugerrand coin the day after the

burglary, and those items were taken from the Jones’s home.               Viewing all of the

evidence, we find that there is sufficient evidence to support Mott’s conviction for

burglary of a habitation. We overrule Mott’s first issue on appeal.

Ineffective Assistance of Counsel

        To determine if trial counsel rendered ineffective assistance, we must first

determine whether Mott has shown that counsel's representation fell below an objective

standard of reasonableness and, if so, then determine whether there is a reasonable

probability that the result would have been different but for counsel's errors. Strickland

v. Washington, 466 U.S. 668 (1984).        We must indulge a strong presumption that

counsel's conduct fell within the wide range of reasonable professional assistance, and

Mott must overcome the presumption that, under the circumstances, the challenged

action might be considered sound trial strategy. Stafford v. State, 813 S.W.2d 503, 508-09

(Tex. Crim. App. 1991). An allegation of ineffective assistance must be firmly founded

in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.

Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).

        Mott specifically argues that his trial counsel was ineffective in failing to object to

evidence of extraneous offenses and in failing to move to suppress the suggestive pre-

trial identification of Mott.

Mott v. State                                                                            Page 5
        Mott contends that his trial counsel was deficient in failing to object to testimony

about stolen items other than those belonging to the Joneses recovered in the white

Chevrolet pickup, testimony about items in the black Ford pickup at the time of Mott’s

arrest, testimony that the black Ford pickup was reported stolen, and testimony of

illegal drug use.

        Mott has not established that some of the complained of evidence was

inadmissible.    Mott was on trial for tampering with a governmental record and,

therefore, some of the complained of documents are not clearly inadmissible. See TEX.

R. EVID. 404(b). Trial counsel elicited testimony to discredit the evidence identifying

Mott as the person who committed the burglary. Trial counsel questioned Macy about

her drug use and her motive to implicate Mott in the burglary of the Jones’s home.

Mott has not shown that his trial counsel’s decisions were not based upon sound trial

strategy. See Scott v. State, 57 S.W.3d 476, 484 (Tex. App.—Waco 2001).

        Kay Jones testified that she asked to see a picture of the person arrested for the

burglary of her home. Kay was not shown a photo lineup for identification purposes.

Kay was not a witness to the burglary. Trial counsel thoroughly cross-examined Kay

about her recollection of the person at the door. Trial counsel asked if the person had

any tattoos, and Kay stated that he did not. Trial counsel introduced evidence that Mott

has a tattoo under his eye. Mott has not shown that he received ineffective assistance of

counsel. We overrule Mott’s second issue on appeal.

                          TAMPERING WITH A GOVERNMENTAL RECORD

        Mott brings three issues on appeal challenging his conviction for tampering with

Mott v. State                                                                         Page 6
a governmental record.      Mott argues that the evidence is legally and factually

insufficient to support his conviction and that the trial court erred in denying his

request for an instruction on a lesser-included offense.

Sufficiency of the Evidence

        We will review Mott’s sufficiency argument under the standard set out in Jackson

v. Virginia, 443 U.S. 307 (1979). A person commits the offense of tampering with a

governmental record if he knowingly makes a false entry in, or false alteration of, a

governmental record.     TEX. PENAL CODE ANN. § 37.10(a)(1) (Vernon Pamph. 2010).

Committing the offense with intent to defraud or harm another increases the penalty

range for the offense. TEX. PENAL CODE ANN. § 37.10(c) (Vernon Pamph. 2010). The

indictment alleged that Mott “did then and there, with intent to defraud or harm

another, namely, the State of Texas, knowingly make a false alteration of a

governmental record.”

        Mott argues there is no evidence indicating his intent to use or present the

altered driver’s license in an effort to defraud anyone. Mott argues that the State was

required to show he used the license in order to prove intent to defraud or harm

another.

        The State can establish intent to defraud or harm by circumstantial evidence.

Burks v. State, 693 S.W.2d 932, 936 (Tex. Crim. App. 1985); Wingo v. State, 143 S.W.3d

178, 187 (Tex. App.—San Antonio 2004), affirmed, 189 S.W.3d 270 (Tex. Crim. App.

2006). Mott was in possession of an altered driver’s license. Mott cut out his picture

from his suspended driver’s license and attached it to another person’s valid license.

Mott v. State                                                                     Page 7
Such an act shows an intent to defraud the State of Texas as to Mott’s identity and as to

his possession of a valid driver’s license. The evidence is sufficient to support Mott’s

conviction.

        Mott also challenges the sufficiency of the evidence arguing that there is a

material variance between the pleading and proof. A variance occurs when there is a

discrepancy between the allegations in the charging instrument and the proof at trial.

Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001). We treat variance claims as

a problem with the sufficiency of the evidence. Id. A variance that is not prejudicial to

a defendant's substantial rights is immaterial. Gollihar v. State, 46 S.W.3d at 248. In

determining whether a defendant's substantial rights have been prejudiced we consider

whether (1) the indictment, as written, informed the defendant of the charge against

him sufficiently to allow him to prepare an adequate defense at trial, and (2) whether

prosecution under the indictment as drafted would subject the defendant to the risk of

being prosecuted later for the same crime. Id.

        When an intent to defraud is an element of an offense, it is sufficient to allege an

intent to defraud without naming the particular person intended to be defrauded. TEX.

CODE CRIM. PRO. ANN. 21.05 (Vernon 2009). The State was not required to allege in the

indictment that Mott acted with intent to defraud the State of Texas. Mott contends that

there is no proof that the State of Texas was harmed or defrauded as alleged in the

indictment resulting in a material variance.

        Mott’s driver’s license was suspended by the State of Texas. Mott altered a

driver’s license to portray a license valid in the State of Texas. The indictment stated

Mott v. State                                                                         Page 8
that Mott made a false alteration of a governmental record by placing his photograph

on the driver’s license of another individual. Although the State was not required to

allege that Mott intended to defraud the State of Texas, the indictment informed Mott

of the charge against him sufficiently to allow him to prepare an adequate defense at

trial. We overrule Mott’s first and second issues.

Lesser-Included Offense

        Mott requested a jury instruction on the lesser offense of tampering with a

governmental record without intent to harm or defraud another.           Committing the

offense with the intent to defraud or harm another increases the penalty range of the

offense. A defendant is entitled to a charge on a lesser offense only if the elements of

the lesser offense are included within the proof necessary to establish the offense

charged and only if there is some evidence that would permit the jury rationally to find

that, if the defendant is guilty, he is guilty only of the lesser offense. See Rousseau v.

State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993).

        The parties agree that the only question before us is whether there is some

evidence Mott is guilty only of the lesser offense. There is no evidence Mott altered the

driver’s license for any purpose other than to portray that he possessed a valid license.

The trial court did not err in denying the requested instruction.

                                       CONCLUSION

        We affirm the trial court’s judgments.


                                          TOM GRAY
                                          Chief Justice

Mott v. State                                                                       Page 9
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed December 15, 2010
[CRPM]
Do not publish




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