                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-14-00056-CR



               GARY MOORE, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 296th District Court
                  Collin County, Texas
            Trial Court No. 296-81210-2013




      Before Morriss, C.J., Moseley and Burgess, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                     MEMORANDUM OPINION
         A Walmart employee in Collin County watched suspiciously one evening as Gary Moore

loaded five DVD players into his shopping cart without checking prices, but while repeatedly

looking over his shoulder.            The employee continued to watch, and a surveillance video

confirmed, Moore pushing the loaded cart past closed cash registers in the then closed garden

center and exiting onto the store’s outside patio, which had separate emergency exits directly to

the parking lot. The employee’s testimony and the surveillance video show Moore stopping

when he noticed a police vehicle just outside in the parking lot, abandoning the cart of

merchandise, and returning inside the store to leave through the store’s main exit without

purchasing anything. Moore was arrested.

         A Collin County1 jury found Moore guilty of shoplifting merchandise and, thus, of theft

of property with a value of less than $1,500.00, with two previous convictions of theft. See TEX.

PENAL CODE ANN. § 31.03(e)(4)(D) (West Supp. 2014). After the jury’s verdict of guilt, Moore

entered into a negotiated plea agreement under which he pled “true” to the State’s enhancement

allegations—that Moore had been convicted of five other additional felony offenses 2—and the

State recommended a sentence of five years’ confinement. Moore was sentenced accordingly.

1
 Originally appealed to the Fifth Court of Appeals in Dallas, this case was transferred to this Court by the Texas
Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We
follow the precedent of the Fifth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.
2
 Before trial, the State filed a notice of enhancement which alleged that Moore was previously convicted (1) on
April 28, 1983, of the felony offense of burglary of a motor vehicle with intent to commit theft in the District Court
of Harris County, Texas, in cause number 375859; (2) on January 21, 1985, of the felony offense of vehicle theft in
the 337th Judicial District Court of Harris County, Texas, in cause number 411372; (3) on March 29, 1988, of the
felony offense of burglary in the 168th Judicial District Court of El Paso County, Texas, in cause number 52166;
(4) on August 10, 1994, of the felony offense of possession of a controlled substance in the 364th Judicial District
Court of El Paso County, Texas, in cause number 74612-346; and (5) on April 6, 2006, of the felony offense of

                                                          2
        On appeal, Moore argues (a) that the evidence is legally insufficient to support the jury’s

finding that he had the requisite mens rea to commit the offense, (b) that the trial court erred in

allowing the State to amend its indictment on the day of trial to reflect the proper name of the

court in which he was previously convicted of one of the jurisdictional theft offenses, (c) that the

trial court erred in admitting evidence of the jurisdictional theft offenses at trial, (d) that the trial

court erred in requiring the jury to find beyond a reasonable doubt that Moore had committed the

jurisdictional theft offenses, (e) that the evidence is legally insufficient to support the jury’s

finding beyond a reasonable doubt that Moore committed the jurisdictional theft offenses,

because there was a material variance between the indictment’s allegation of those offenses and

the proof adduced at trial, and (f) that discrepancies in the plea paperwork may render the plea

agreement ineffectual.

        We find that (1) the evidence is sufficient to support the finding of guilt, (2) the

indictment was never amended, (3) Moore failed to preserve his complaints involving admission

of the jurisdictional theft offenses, (4) there was no error in the jury charge, (5) there was no

material variance between the indictment’s allegations of the jurisdictional theft offenses and the

proof adduced at trial, and (6) Moore is precluded from challenging his punishment.

Accordingly, we affirm the trial court’s judgment.




manufacture or delivery of a controlled substance in an amount of four grams or more but less than 200 grams in the
291st Judicial District Court of Dallas County, Texas, in cause number F-0551876.
                                                        3
(1)     The Evidence Is Sufficient to Support the Finding of Guilt

        Moore argues that the evidence is legally insufficient to prove that he intentionally or

knowingly stole the merchandise.

        In evaluating legal sufficiency, we review all the evidence in the light most favorable to

the jury’s verdict to determine whether any rational jury could have found theft in the requisite

amount beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App.

2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Brown v. State, 333 S.W.3d 606,

608 (Tex. App.—Dallas 2009, no pet.). We examine legal sufficiency under the direction of the

Brooks opinion, while giving deference to the responsibility of the jury “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).

        Legal 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). The hypothetically correct jury charge “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.




                                                4
        In this case, Moore committed theft “if he unlawfully appropriate[d] property with [the]

intent to deprive the owner of property.” 3 TEX. PENAL CODE ANN. § 31.03(a) (West Supp.

2014). Moore challenges the proof of the mens rea required for the offense. Also, theft is

typically classified as a misdemeanor offense. TEX. PENAL CODE ANN. § 31.03(e)(1)–(3) (West

Supp. 2014). However, an offense of theft is punishable as a state jail felony if “the value of the

property stolen is less than $1,500 and the defendant has been previously convicted two or more

times of any grade of theft.”           TEX. PENAL CODE ANN. § 31.03(e)(4)(D).                   “Previous theft

convictions that elevate[] misdemeanors to felonies are jurisdictional elements of the offense

alleged.” Moore v. State, 916 S.W.2d 537, 539 (Tex. App.—Dallas 1995, no pet.). Thus, the

State was also required to prove that Moore committed the two previous jurisdictional offenses

as alleged in the indictment.

        At trial, Tyler Aroche, a Walmart loss prevention officer, testified that he became

suspicious of Moore when he saw Moore place five portable DVD players into a shopping cart

without looking at the prices of the products. Aroche, who was pretending to be a Walmart

shopper, followed Moore closely and continued to watch as Moore browsed the electronics

department of the store. He noticed that Moore “kept looking over his shoulder” to ensure that

he remained hidden from Walmart employees. After 9:15 p.m., Moore finished loading his cart

and walked toward the store’s garden center, which had closed at 8:00 p.m. Aroche testified that

people often try to use the closed garden center’s separate exit to get away with stolen



3
 In defining the various theft offenses, the word “appropriate” means “to acquire or otherwise exercise control over
property other than real property.” TEX. PENAL CODE ANN. § 31.01(4)(B) (West Supp. 2014).
                                                         5
merchandise. Because he believed that Moore was attempting to steal the merchandise in his

cart, Aroche called the police.

         Surveillance video demonstrated that Moore walked past the closed cash registers and

exited onto the store’s outside patio without paying for either the DVD players or the other

merchandise. Aroche explained that the garden center’s outside patio has emergency exits that

open directly to the parking lot. He testified that Moore stepped onto the outside patio and

headed for the emergency exit, but paused when he spotted a marked patrol vehicle that was

waiting for him. According to Aroche, Moore then abandoned the cart full of merchandise on

the outside patio, walked back into the store, and left the store through the main entrance, all the

while appearing nervous and looking over his shoulder. 4 Surveillance footage showed Moore

pushing the full cart to the outside patio, abruptly abandoning the merchandise, and retreating

back into the store.

         Kyle Norton, an officer with the Plano Police Department, testified that, even though

Moore had abandoned the property, Moore was arrested because he had exited all points of sale

and would have escaped through the emergency exit doors if he had not spotted the marked

police vehicle. Norton testified that, in his belief, Moore had no intention of paying for the items

in the cart. The value of the property in Moore’s cart totaled $608.11. According to Norton,

Moore claimed that he had just come from Oklahoma from a gambling trip and was stopping at



4
 “To show theft under Texas law, it is not necessary to establish that the property was removed or carried away from
the premises.” Nautilus Ins. Co. v. Steinberg, 316 S.W.3d 752, 755–56 (Tex. App.—Dallas 2010, pet. denied)
(citing Hill v. State, 633 S.W.2d 520, 521 (Tex. Crim. App. 1981)). “Any removal of the property, no matter how
slight, from its customary location is sufficient to show control over the property for purposes of theft.” Id. at 756
(citing Baker v. State, 511 S.W.2d 272 (Tex. Crim. App. 1974)).
                                                          6
the store to shop. Norton believed the story odd since Moore had just abandoned a full cart and

had not purchased any merchandise as he was exiting the store.

        After hearing this evidence, the jury convicted Moore of theft. On appeal, Moore’s

challenge regarding the conviction itself focuses only on the proof of the mens rea element of the

offense. Specifically, Moore argues (1) that there was no evidence of any act of concealment,

and (2) that the surveillance videos of Moore inside the store suggested that Aroche’s testimony

that Moore was constantly looking over his shoulder was exaggerated. Moore contends that he

was merely shopping for Christmas gifts in December, as demonstrated by the wrapping paper

that was also in his cart.

        “Intent to deprive must be determined from the words and acts of the accused.” Griffin v.

State, 614 S.W.2d 155, 159 (Tex. Crim. App. [Panel Op.] 1981); Banks v. State, 471 S.W.2d

811, 812 (Tex. Crim. App. 1971). Aroche admitted that there was no evidence that Moore was

attempting to conceal items from the view of Walmart employees. However, he testified that, as

a loss prevention officer, he (1) targeted Moore when he placed five portable DVD players into

his cart without looking at the prices, (2) became suspicious when Moore’s body language

indicated that he was nervous, and (3) became concerned when Moore’s maneuvers indicated

that he was purposefully trying to avoid catching the attention of Walmart employees.

        Moore’s entire trip to Walmart was not memorialized in the surveillance footage.

Because his appearance inside the store was captured for only a few seconds in unclear

segments, Moore argues that the video does not support Aroche’s testimony that Moore was

nervous and constantly looking over his shoulder. Yet, as the sole triers of fact, the jury was free

                                                 7
to believe Aroche’s testimony since Aroche was following Moore closely throughout the store

and was able to witness Moore’s expressions and mannerisms. Moreover, the jury heard that

Moore attempted to exit the store through the closed garden center—a path commonly used by

shoplifters seeking to avoid detection. Video surveillance showed Moore exiting past all points

of sale and abruptly abandoning his cart on the outdoor patio. When approached by Norton,

Moore, who had just exited the store without merchandise, claimed to Norton that he was

coming to the store to shop.

       Based on the video surveillance and Aroche’s and Norton’s testimony, the jury could

determine that Moore’s actions demonstrated his intent to deprive Walmart of the merchandise in

the cart. Therefore, we conclude that the evidence was sufficient for the jury to find that Moore

unlawfully appropriated the property with the requisite intent.

(2)    The Indictment Was Never Amended

       In its indictment, the State alleged that Moore was previously convicted of (1) theft of

property valued at more than $20.00 but less than $200.00 on March 30, 1994, in the County

Court at Law #7 of El Paso County, Texas, in cause number 940C03986 (the 1994 offense) and

(2) theft of property valued at more than $50.00 but less than $500.00 on July 14, 2004, in the

County Criminal Court #3 of Tarrant County, Texas, in cause number 0878309001. These two

prior offenses were necessary to raise the level of the current theft offense from a misdemeanor

to a state jail felony. See TEX. PENAL CODE ANN. § 31.03(e)(4)(D).

       On the day of trial, but before the jury was impaneled and sworn, the State moved to

amend the indictment regarding Moore’s 1994 conviction by changing language regarding the

                                                 8
name of the convicting court from County Court at Law #7 to County Court at Law #4. The trial

court overruled Moore’s objection to the State’s trial amendment and stated that it would “allow

the amendment [to correct] a clerical error, not a substantive error.” Moore argues that the trial

court erred in granting the State’s motion to amend the indictment.

       “A charging instrument may not be modified on the day of trial before the trial on the

merits commences.” Dukes v. State, 239 S.W.3d 444, 446 (Tex. App.—Dallas 2007, pet. ref’d)

(citing State v. Murk, 815 S.W.2d 556, 558 (Tex. Crim. App. 1991)); see TEX. CODE CRIM.

PROC. ANN. art. 28.10(b) (West 2006). The State argues, however, that, while it might have been

error for the State to have been given permission to amend the indictment that late, the

indictment was never actually amended. We agree.

       “Neither the [State’s] motion [to amend the indictment] nor the trial judge’s granting

thereof is an amendment; rather the two comprise the authorization for the eventual amendment

of the charging instrument pursuant to Article 28.10.” Riney v. State, 28 S.W.3d 561, 566 (Tex.

Crim. App. 2000) (quoting Ward v. State, 829 S.W.2d 787, 793 (Tex. Crim. App. 1992),

overruled in part on other grounds by Riney, 28 S.W.3d at 566). “[A] written amendment must

be submitted to the trial court and included in the record to be valid.” Tata v. State, 446 S.W.3d

456, 461 (Tex. App.—Houston [1st Dist.] 2014, pet. filed) (citing Riney, 28 S.W.3d at 565–66;

Head v. State, 299 S.W.3d 414, 437 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d)).

       Here, there is no document in the record showing any actual amendment to the

indictment. While the trial court stated that it would “allow the amendment,” it made no

statement that the amendment had been made. Although the reporter’s record reflects that the

                                                9
indictment was read to Moore before he pled true to the 1994 offense, it omits the substance of

the wording from the transcription. Additionally, Moore’s plea of true to the 1994 offense

cannot constitute an amendment to the indictment. See Puente v. State, 320 S.W.3d 352, 358

(Tex. Crim. App. 2010) (“[A] judicial confession of a guilty plea, even when it is reduced to

writing, is decidedly not a charging instrument.”).

       Because the indictment was never actually amended, the original indictment remained

effective. Consequently, we overrule this point of error. See Tata, 446 S.W.3d 456.

(3)    Moore Failed to Preserve His Complaints Involving Admission of the Jurisdictional Theft
       Offenses

       Although Moore pled true to the two prior jurisdictional theft offenses, the State

introduced evidence of the offenses during the guilt/innocence phase of the jury trial, without

objection. If a defendant stipulates to prior offenses used as jurisdictional enhancements, a trial

court should not permit the admission of evidence of the prior convictions during the

guilt/innocence phase because the danger of unfair prejudice from introduction of such evidence

substantially outweighs its probative value. Hernandez v. State, 109 S.W.3d 491, 494 (Tex.

Crim. App. 2003). Moore argues that the trial court erred in allowing the State to introduce

evidence of the prior offenses.

       “As a prerequisite to presenting a complaint for appellate review, the record must show

that: (1) the complaint was made to the trial court by a timely request, objection, or motion. . . .”

TEX. R. APP. P. 33.1(a)(1). Moore did not raise any timely objection to the introduction of

evidence of his previous theft convictions. Therefore, we find that Moore has failed to preserve

this issue for our review.
                                                 10
(4)    There Was No Error in the Jury Charge

       Moore also argues that the trial court erred in including the following reference to the

prior jurisdictional offenses in the jury charge:

               A theft under $1500 becomes a felony if the defendant was previously
       convicted two times of the offense of theft. The State has alleged that GARY
       MOORE has been previously convicted two times of the offense of theft, to wit:
       on the 14th day of July, A.D. 2004, in the County Criminal Court # 3 of Tarrant
       County, Texas, in cause number 0878309001, on the docket of said court, the said
       Defendant, under the name of Gary Moore, was duly and legally convicted in the
       said last named court of the offense of Theft of Property more than fifty dollars
       ($50.00) but less than five hundred dollars ($500.00) on an information then
       legally pending in said last named court of which said court had jurisdiction; and
       on the 30th day of March, A.D., 1994, in the County Court at Law #4 of El Paso
       County, Texas, in cause number 940C03986, on the docket of said court, the said
       defendant, under the name of Gary Celestine, was duly and legally convicted in
       the said last named court of the offense of Theft>=$20 <$200 on an information
       then legally pending in said last named court of which said court had jurisdiction.
       The Defendant has stipulated that these allegations are true, and you are instructed
       to find them true. You may not consider the existence of these prior convictions
       for any purpose other than establishing the jurisdictional element of two prior
       convictions. You are further instructed that evidence of these prior convictions
       cannot be considered as evidence that the Defendant committed theft on the 12th
       day of December, 2012.

       Our review of alleged jury charge error involves a two-step process. Abdnor v. State, 871

S.W.2d 726, 731 (Tex. Crim. App. 1994); see Sakil v. State, 287 S.W.3d 23, 25–26 (Tex. Crim.

App. 2009); Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). Initially, we determine

whether an error occurred and then “determine whether sufficient harm resulted from the error to

require reversal.” Abdnor, 871 S.W.2d at 731–32; Almanza v. State, 686 S.W.2d 157, 171 (Tex.

Crim. App. 1984) (op. on reh’g), reaff’d by Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim.

App. 2003).


                                                    11
        “A jury charge must distinctly set forth the law applicable to the case and set out all of

the essential elements of the offense.” Martin v. State, 200 S.W.3d 635, 639 (Tex. Crim. App.

2006). This requirement includes previous offenses that are used as jurisdictional elements. Id.

Thus, “the jury should be instructed about the existence and effect of a defendant’s stipulation to

the two jurisdictional prior [] convictions.” Id. at 637.

        As the Texas Court of Criminal Appeals clarified,

        the trial court can instruct the jury about the stipulated prior convictions in any of
        several different ways. One way is to include the specific indictment allegations
        of the two prior DWI convictions in the application paragraph with a separate
        paragraph stating that the defendant has stipulated to the existence of those two
        prior convictions, thus that jurisdictional element has been established. This
        separate paragraph would also instruct the jury to find that the jurisdictional prior
        convictions may not be used for any other purpose in determining the guilt of the
        defendant on the charged occasion.

Id. at 639. The trial court’s instruction fell squarely within the parameters of Martin. Therefore,

because the trial court’s charge was proper, we overrule this point of error.

(5)     There Was No Material Variance Between the Indictment’s Allegations of the
        Jurisdictional Theft Offenses and the Proof Adduced at Trial

        Moore pled true to the two prior jurisdictional theft offenses. The State also introduced

the judgments of conviction for each of the theft offenses. Moore argues that the State’s

indictment was never actually amended to reflect the correct court of conviction for the 1994

offense, and, therefore, there is a material variance between the pleading and proof with respect

to this prior offense.

        Allegations of prior jurisdictional offenses need not have the same particularity that is

required in charging a primary offense. Human v. State, 749 S.W.2d 832, 835–37 (Tex. Crim.

                                                 12
App. 1988) (op. on reh’g); Valenti v. State, 49 S.W.3d 594, 598 (Tex. App.—Fort Worth 2001,

no pet.); see Freda v. State, 704 S.W.2d 41, 42 (Tex. Crim. App. 1986); see also Rooks v. State,

576 S.W.2d 615, 617 (Tex. Crim. App. [Panel Op.] 1978) (acknowledging “the trend in the law

regarding allegations of prior convictions has generally been toward a relaxation of the rigid

rules of the past”). “The accused is entitled to a description of the judgment of former conviction

that will enable him to find the record and make preparation for a trial of the question of whether

he is the named convict therein.” Villescas v. State, 189 S.W.3d 290, 293 (Tex. Crim. App.

2006). Variances between an allegation of a prior conviction and the proof in regard to cause

numbers, courts, and dates of conviction have all been held to be immaterial. Arce v. State, 552

S.W.2d 163, 164 (Tex. Crim. App. 1977) (finding State’s allegation of prior offense sufficient

even though it omitted court of conviction because cause number, county, and date of conviction

were sufficient notice to enable accused to locate prior felony conviction); Human, 749 S.W.2d

at 837; Freda, 704 S.W.2d at 42–43.

       Moreover, a variance between the allegations and the proof will not render the evidence

insufficient if the defendant was not surprised or prejudiced by the variance. See Rojas v. State,

986 S.W.2d 241, 246 (Tex. Crim. App. 1998); Human, 749 S.W.2d at 836; see also TEX. R. APP.

P. 44.2(b). Moore had no objection to the State’s introduction of the 1994 offense. He pled true

to both prior theft convictions. His counsel candidly admitted that he and Moore were “already

aware of two prior convictions for theft.” The record demonstrates that Moore was neither

surprised by the variance in the date of the 1994 offense nor mislead to his prejudice in preparing




                                                13
his defense.      Therefore, the variance was immaterial, and Moore’s pleas of true and the

judgments of conviction were legally sufficient to establish the jurisdictional theft offenses.

        Because the evidence was legally sufficient to support Moore’s conviction, we overrule

this point of error.

(6)     Moore Is Precluded from Challenging His Punishment

        The trial court’s certification of Moore’s right to appeal states that, with respect to

punishment, this is a plea bargain case and Moore has no right of appeal. See TEX. R. APP.

P. 25.2(a)(2). The record supports the trial court’s certification. See Dears v. State, 154 S.W.3d

610, 615 (Tex. Crim. App. 2005). A defendant in a noncapital felony case may waive the right

to appeal. Monreal v. State, 99 S.W.3d 615, 617 (Tex. Crim. App. 2003) (citing TEX. CODE

CRIM. PROC. ANN. art. 1.14(a) (West 2005)). Moore does not argue that his waiver was not

voluntary, knowing, and intelligent and has raised no complaint that would otherwise lead this

Court to conclude that the sentence is illegal or otherwise void. 5

        Moore acknowledges that he waived his right to appeal as part of the plea agreement.

Because Moore was aware of the consequences of his waiver of the right to appeal the issue of

punishment, he must live with those consequences. See Blanco v. State, 18 S.W.3d 218, 219–20

(Tex. Crim. App. 2000). Because we have no jurisdiction over this portion of Moore’s appeal,

we dismiss this point of error. See Edwards v. State, No. 05-12-00998-CR, 2013 WL 1449907,

at *1 (Tex. App.—Dallas Apr. 9, 2013, no pet.) (mem. op., not designated for publication).

5
 Moore argued that the same convictions used to elevate the current offense to a state jail felony could not also be
used as enhancement allegations for the purposes of punishment. The State’s notice of intent to enhance Moore’s
punishment relied on five previous felony offenses which were separate and apart from the two alleged jurisdictional
theft offenses.
                                                        14
      We affirm the trial court’s judgment.



                                              Josh R. Morriss, III
                                              Chief Justice

Date Submitted:      February 6, 2015
Date Decided:        February 25, 2015

Do Not Publish




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