                               Fourth Court of Appeals
                                      San Antonio, Texas

                                  MEMORANDUM OPINION
                                         No. 04-13-00475-CR

                                         Jacqulin JOHNSON,
                                              Appellant

                                                 v.
                                            The STATE of
                                         The STATE of Texas,
                                               Appellee

                         From the 272nd District Court, Brazos County, Texas
                                 Trial Court No. 12-00820-CRF-272
                            Honorable Travis B. Bryan III, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: November 6, 2013

AFFIRMED

           Jacqulin Johnson was convicted by a jury of theft of property under the value of $1,500.00.

On appeal, Johnson contends: (1) the trial court erred by permitting the State to amend her

indictment on the date trial commenced; (2) the evidence is insufficient to support the jury’s

verdict; and (3) the trial court abused its discretion in admitting evidence of an extraneous offense.

We overrule Johnson’s issues and affirm the trial court’s judgment.
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                                       AMENDMENT TO INDICTMENT

        Johnson’s indictment contained allegations of two prior convictions that elevated her

offense from a Class C misdemeanor to a state jail felony for jurisdictional purposes. 1 At the

conclusion of voir dire, the trial court permitted the State to amend the date on which one of the

prior convictions occurred. Defense counsel objected to the amendment. On appeal, Johnson

contends the trial court committed reversible error in allowing the amendment.

        Article 28.10 of the Texas Code of Criminal Procedure prohibits any amendment to an

indictment after the trial commences if the defendant objects. TEX. CODE CRIM. PROC. ANN. art.

28.10 (West 1989). Because the trial court permitted the State to amend the indictment after trial

commenced over defense counsel’s objection, we must evaluate the record to determine what

harm, if any, the error caused. Because this is a nonconstitutional error, we disregard the error

unless it affected Johnson’s substantial rights. McIntosh v. State, 307 S.W.3d 360, 365 (Tex.

App.—San Antonio 2009, pet. ref’d); Flores, 139 S.W.3d at 66; Valenti v. State, 49 S.W.3d 594,

598 (Tex. App.—Fort Worth 2001, no pet.).

        “The untimely amendment of a charging instrument affects a defendant’s substantial rights

if the instrument did not inform the defendant of the charge against him sufficiently to allow him

to prepare his defense, or if prosecution under the erroneous charging instrument would subject

the defendant to the risk of being prosecuted later for the same crime.” McIntosh, 907 S.W.3d at

365-66; see also Flores, 139 S.W.3d at 66 (quoting Gollihar v. State, 46 S.W.3d 243, 248 (Tex.

Crim. App. 2001)). Johnson does not contend in her brief that the erroneous amendment would

subject her to the risk of being prosecuted later for the same crime; instead, Johnson argues “but


1
  “Prior convictions used for jurisdictional enhancements, unlike prior convictions used merely for punishment
enhancements, must be pled in the indictment.” Flores v. State, 139 S.W.3d 61, 65 (Tex. App.—Texarkana 2004, pet.
ref’d) (emphasis in original); see also Ex parte Reinke, 370 S.W.3d 387, 389 n.3 (Tex. Crim. App. 2012) (noting prior
offenses that must be alleged for offense of felony theft are jurisdictional elements of the offense itself).

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for the unlawful amendment, Johnson could have successfully urged a variance between the

indictment and proof with regard to one of the prior theft convictions.”

       In response to this argument, we first note that Johnson’s ability to urge a variance is not

the test for determining harm. Instead, the test is whether Johnson had adequate notice to prepare

a defense. See McIntosh, 307 S.W.3d at 366; Flores, 139 S.W.3d at 66. Moreover, even if the

inability to assert a variance were the test, “[a] variance between the indictment and the evidence

is fatal to a conviction only if the variance results in actual surprise or prejudices the rights of the

accused.” Flores, 307 S.W.3d at 66. If the record establishes that Johnson had adequate notice to

prepare a defense, then it also shows the absence of surprise.

       In pertinent part, Johnson’s indictment alleged that Johnson had previously been convicted

of theft “in that on the 19th day of April, 1998, in the County Court at Law No. One of Brazos

County, Texas, in Cause No. 599-98, the defendant was convicted of Theft.” The amendment only

changed the date of the conviction from April 19th to April 9th. “The indictment alleged the prior

conviction with sufficient specificity by including the correct county, court, offense, cause number,

month and year, to put [Johnson] on notice to prepare for proof of the conviction.” Valenti, 49

S.W.3d at 599. Accordingly, under these circumstances, we hold that amending the typographical

error in the date of the prior conviction did not affect Johnson’s substantial rights and was

harmless. See id.

                                  SUFFICIENCY OF THE EVIDENCE

       In her second issue, Johnson contends the evidence is insufficient to prove the value of the

wine she was alleged to have stolen. The evidence at trial established that Johnson took one bottle

from a four-pack of wine from the shelf of a grocery store, drank half the bottle, and placed the

half-empty bottle on another shelf. Johnson contends the evidence at trial established only the

value of the four-pack of wine, not the value of the single bottle.
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       “When reviewing the sufficiency of the evidence, we consider all of the evidence in the

light most favorable to the verdict to determine whether, based on that evidence and the reasonable

inferences therefrom, a jury was rationally justified in finding guilt beyond a reasonable doubt.”

Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012) (citing Jackson v. Virginia, 443

U.S. 307, 318-19 (1979)). “The jury is the sole judge of credibility and weight to be attached to

the testimony of witnesses.” Id. Juries are also permitted “to draw multiple reasonable inferences

as long as each inference is supported by the evidence presented at trial.” Hooper v. State, 214

S.W.3d 9, 15 (Tex. Crim. App. 2007). A reviewing court determines if a jury’s inferences are

reasonable “based upon the combined and cumulative force of all the evidence when viewed in the

light most favorable to the verdict.” Id. at 17.

       With regard to the value of the stolen property, one of the grocery store’s loss prevention

officers, Jonathon Carrizales, testified that the grocery store was not able to re-package the other

three bottles in the four-pack and sell them. Instead, the grocery store is required to take a loss on

the entire four-pack. Carrizales stated that a receipt showing the price of the four-pack was given

to the officer who arrived to arrest Johnson. The receipt was introduced into evidence, establishing

that the value of the four-pack was $6.50.

       Because the grocery store was required to take a loss on the entire four-pack, the evidence

is legally sufficient to establish that the value of the property stolen by Johnson was $6.50. Even

if Carrizales had not testified regarding the grocery store’s inability to re-package and sell the

remaining three bottles in the four-pack, however, the jury could infer from the evidence that the

value of the single bottle was one-fourth of $6.50, or $1.62. Therefore, the evidence is legally

sufficient to support Johnson’s conviction.




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                                                      RULE 403

           In her final issue, Johnson contends the trial court erred in admitting evidence that she had

engaged in a previous theft because the evidence was overly prejudicial under Rule 403.

           Rule 403 provides, “Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading

the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.”

TEX. R. EVID. 403. We review a trial court’s ruling admitting evidence over a Rule 403 objection

under an abuse of discretion standard. See De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim.

App. 2009); McCallum v. State, 311 S.W.3d 9, 14-15 (Tex. App.—San Antonio 2010, no pet.).

“As long as the trial court’s ruling is within the ‘zone of reasonable disagreement,’ there is no

abuse of discretion, and the trial court’s ruling will be upheld.” De La Paz, 279 S.W.3d at 343-

44. “‘Rule 403 favors the admission of relevant evidence and carries a presumption that relevant

evidence will be more probative than prejudicial.’” McCallum, 311 S.W.3d at 15 (quoting

Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006)).

           “[A] proper Rule 403 analysis by either the trial court or a reviewing court includes, but is

not limited to, the following factors: (1) the probative value of the evidence; (2) the potential to

impress the jury in some irrational, yet indelible, way; (3) the time needed to develop the evidence;

(4) the proponent’s need for the evidence.” Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App.

2004). In this case, the extraneous offense related to Johnson’s previous theft of a bottle of wine

that an employee observed and reported to Carrizales. 2 The testimony regarding the prior theft

was probative to rebut Johnson’s testimony that Carrizales lied in testifying that she stole the wine.

The trial court gave a limiting instruction regarding the jury’s consideration of extraneous offenses



2
    Carrizales was unable to apprehend Johnson on that occasion because he did not observe the theft.

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in the charge which “likely eliminated any potential that the extraneous offense evidence would

impress the jury in some irrational, indelible way.” Render v. State, 347 S.W.3d 905, 921 (Tex.

App.—Eastland 2011, pet. ref’d). The testimony regarding the extraneous offense spans only

about ten to fifteen pages of the reporter’s record, so the time needed to develop the evidence was

not significant. Finally, because the jury would be required to weigh the credibility of the

witnesses, the State needed the evidence to assist in establishing that Carrizales was the more

credible witness. See Young v. State, 242 S.W.3d 192, 201 (Tex. App.—Tyler 2007, no pet.)

(balancing Rule 403 factors and noting State’s need for evidence was significant in order to answer

attack on witness’s credibility); Sarabia v. State, 227 S.W.3d 320, 324 (Tex. App.—Fort Worth

2007, pet. ref’d) (same). After reviewing the balancing factors, we hold the trial court did not

abuse its discretion in admitting the evidence of the other theft.

                                           CONCLUSION

       The trial court’s judgment is affirmed.

                                                  Catherine Stone, Chief Justice

DO NOT PUBLISH




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