                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-14-00407-CR


THE STATE OF TEXAS                                                         STATE

                                        V.

FRANK EMPEY                                                            APPELLEE


                                     ----------

           FROM THE 271ST DISTRICT COURT OF WISE COUNTY
                      TRIAL COURT NO. CR17613

                                     ----------

                                   OPINION

                                     ----------

      The State of Texas brings this pretrial appeal challenging the trial court’s

order that dismissed the grand jury’s indictment for theft of aluminum, bronze,

copper, or brass with a value of less than $20,000. In one issue, the State

argues that the trial court erred by granting appellee Frank Empey’s motion to

dismiss the indictment because despite the trial court’s finding otherwise, section

31.03(e)(4)(F) of the penal code is constitutional.    We conclude that section
31.03(e)(4)(F) is not facially unconstitutional, and we therefore reverse the trial

court’s order dismissing the indictment against appellee.

                               Background Facts

      A grand jury indicted appellee for theft. The indictment charged him with a

state jail felony because it alleged that he had stolen “aluminum or bronze or

copper or brass, of the value of less than $20,000.” See Tex. Penal Code Ann.

§ 31.03(e)(4)(F) (West Supp. 2015).

      Appellee filed a pretrial motion to dismiss the indictment. He argued that

the indictment was flawed because it was based on section 31.03(e)(4)(F), which

he contended to be overbroad and vague because it allows for selective

prosecution. Specifically, appellee argued,

      [Section 31.03(e)(4)(F)] makes it a state jail felony to steal any
      amount of aluminum or bronze or copper or brass. This means a
      person could be charged with stealing a roll of copper pennies and
      be charged with a State Jail Felony or [the person] could be charged
      with a Class C Misdemeanor. A person could be charged with
      stealing a brass ring worth one dollar and be charged either as a
      State Jail Felony or a Class C Misdemeanor. In this case the
      defendant is charged with stealing four aluminum bats with a stated
      value of forty dollars and he is being charged with a State Jail
      Felony. It is obvious that the statute as it is being applied to him is
      void for vagueness . . . . The statute as it is being used against
      [appellee] allows the prosecution and police too much discretion to
      either charge him with a felony or a misdemeanor which is clearly
      impermissible. [Emphases added.]

      The State responded to appellee’s motion to dismiss. In the response, the

State argued that the trial court should deny the motion because section

31.03(e)(4)(F) clearly defined appellee’s prohibited behavior and was therefore



                                        2
not vague. Also, the State contended that the statute was not infirm merely

because it allowed appellee’s theft to be prosecuted under different parts of

section 31.03 that related either to the value of the allegedly stolen materials or

the materials’ substance. The State argued that its ability to exercise discretion

in charging appellee with a state jail felony under section 31.03(e)(4)(F) rather

than with a lesser theft offense based on the value of the items at issue did not

render section 31.03(e)(4)(F) unconstitutional.1 In part, the State asserted,

      The choice of what statute to apply falls to the discretion of the
      prosecutor.      [Appellee] could be charged with a Class C
      Misdemeanor under [a value provision of section 31.03], or with a
      State Jail Felony under [section] 31.03(e)(4)(F) for theft of aluminum
      valued less than $20,000.          Both statutes clearly explain the
      prohibited behavior in a way that gives fair notice to a person of
      ordinary intelligence as to what conduct [the person] may not
      partake in. This fair notice allows the statutes to stand up to
      constitutional muster. As the Supreme Court makes clear, allowing
      discretion in choosing how to charge a defendant is not
      unconstitutional if the statutes individually are constitutional. In this
      case, because the statutes are not vague in the conduct they
      prohibit, they are both valid aspects of the criminal penal code in
      Texas[,] and allowing for prosecutorial discretion in charging . . . in
      no way renders the statutes void for vagueness.

      Without conducting a hearing, the trial court granted appellee’s motion to

dismiss. The State asked the trial court to file findings of fact and conclusions of

law, and the court did so. The court’s findings and conclusions state:




      1
       In the response, the State alleged that appellee had stolen four aluminum
baseball bats, three cast iron skillets, and a heavy duty chain from a scrap yard
at which he had been employed. The indictment does not include these details.


                                         3
      Findings of Fact:

             [Appellee] was charged and indicted under Texas [Penal Code
      Section] 31.03(e)(4)(F). That Statute makes theft of any amount of
      aluminum, copper, brass[,] or bronze a State Jail Felony. The State
      alleges that on April 24, 2013, a theft was reported from the scrap
      yard of Bridgeport Iron and Metal. There was a surveillance video
      showing [appellee], an employee of the company, gathering up four
      aluminum baseball bats, three cast iron skillets, and a heavy-duty
      chain out of a company vehicle and into his personal vehicle, and
      leaving the property without paying for them. . . . [Appellee], through
      his attorney, filed a Motion to Dismiss arguing that the Statute is
      overly broad and void for vagueness, as it allows the police too
      much discretion in charging someone with either a Class C
      Misdemeanor or a State Jail Felony. The State filed its opposition to
      the Motion. Under the State’s theory, the theft of a copper penny
      from the top of someone’s desk would be a felony; an ounce of
      gold[,] a misdemeanor; an empty aluminum Coors Light can, a
      felony.

      Conclusions of Law:

           The Court considered [appellee’s] Motion and the State’s
      Opposition and decided that the Statute is overly broad and void for
      vagueness as it is being applied to [appellee] . . . .

            The Legislative intent of [section] 31.03(e)(4)(F) did not
      envision its application in this alleged circumstance. [Emphases
      added.]

      To the findings of fact and conclusions of law, the trial court attached

documents from another case before the court.         Those documents included

arguments related to a motion to quash an indictment filed by another defendant

who had also contested the constitutionality of section 31.03(e)(4)(F).         The

attachments also included an affidavit from the attorney in that case, who stated

that she had called State Senator Royce West’s office concerning the legislation

that led to the enactment of current section 31.03(e)(4)(F), and an e-mail from


                                        4
Senator West’s legislative aide concerning the purposes of the statute and of

recent amendments to it.2 The State brought this appeal from the trial court’s

order dismissing the indictment against appellee.

                The Constitutionality of Section 31.03(e)(4)(F)

      The State contends that the trial court erred by granting appellee’s motion

to dismiss, which both parties on appeal characterize as a motion to quash the

indictment. When a trial court’s ruling on a defendant’s motion to quash an

indictment concerns a matter unrelated to the credibility or demeanor of

witnesses, such as the constitutionality of a statute, we review the ruling de novo

and therefore give no deference to the ruling. Lawrence v. State, 240 S.W.3d

912, 915 (Tex. Crim. App. 2007), cert. denied, 553 U.S. 1007 (2008); State v.

Richardson, 439 S.W.3d 403, 404 (Tex. App.—Fort Worth 2014, pet. ref’d)

(mem. op.).

      When a defendant challenges the constitutionality of a statute, “we usually

begin with the presumption that the statute is valid and that the legislature has

not acted unreasonably or arbitrarily. The burden normally rests upon the person

challenging the statute to establish its unconstitutionality.”   Ex parte Lo, 424

S.W.3d 10, 15 (Tex. Crim. App. 2013) (footnote omitted); see State v. Rosseau,

      2
        Based on our analysis below, we need not detail the contents of the
affidavit and e-mail. We note that the Texas Supreme Court has stated that
courts should give “little weight to post-enactment statements by legislators.
Explanations produced, after the fact, by individual legislators are not statutory
history, and can provide little guidance as to what the legislature collectively
intended.” In re Doe, 19 S.W.3d 346, 352 (Tex. 2000).


                                        5
396 S.W.3d 550, 557 (Tex. Crim. App. 2013). A pretrial motion to quash an

indictment may be used only for a facial challenge to the constitutionality of a

statute. Jimenez v. State, 419 S.W.3d 706, 714 (Tex. App.—Houston [1st Dist.]

2013, pet. ref’d); see State ex rel. Lykos v. Fine, 330 S.W.3d 904, 910 (Tex.

Crim. App. 2011) (orig. proceeding) (stating that because a contention that a

statute is unconstitutional as applied requires a recourse to evidence, it cannot

be properly raised by a pretrial motion to quash the charging instrument);

Gillenwaters v. State, 205 S.W.3d 534, 536 n.4 (Tex. Crim. App. 2006).3

      A facial challenge is an attack on a statute itself as opposed to a particular

application. Peraza v. State, 467 S.W.3d 508, 514 (Tex. Crim. App. 2015), cert.

denied, 136 S. Ct. 1188 (2016). To prevail on a facial challenge, a party must

establish that the statute always operates unconstitutionally.      Rosseau, 396

S.W.3d at 558 (“Because appellee has failed to show that it is unconstitutional in

every possible respect, the statute is not facially unconstitutional.”); see Salinas

v. State, 464 S.W.3d 363, 367 (Tex. Crim. App. 2015); Peraza, 467 S.W.3d at

514. Thus, in considering a facial challenge to a statute, we must determine


      3
        We note that both appellee’s motion to dismiss and the trial court’s
conclusion of law supporting dismissal, which we have quoted above, rely on as-
applied language concerning the constitutionality of section 31.03(e)(4)(F).
Neither party relies on an as-applied challenge in briefing, however, and they
both address the merits of a facial challenge without explicitly discussing whether
such a challenge was preserved. In the interest of justice and because
appellee’s overall vagueness complaint in the trial court comports with his
vagueness complaint on appeal, we address the parties’ arguments concerning a
facial challenge to the statute.


                                         6
whether there are potential constitutional applications. See Peraza, 467 S.W.3d

at 515; see also Fine, 330 S.W.3d at 908 (“If Mr. Green is mounting

a facial challenge to the Texas death-penalty scheme, then he must prove that

the system can never be constitutionally applied to any Texas defendant charged

with capital murder, no matter what the individual facts and circumstances of the

particular case.”). A facial challenge to a statute is the most difficult challenge to

mount successfully. Salinas, 464 S.W.3d at 367.

      Section 31.03(e)(4)(F) makes theft of certain metals a state jail felony

when the theft might otherwise constitute a less serious offense when measured

by the value of the metals. See Tex. Penal Code Ann. § 31.03(e)(4)(F). On

appeal, the parties contest whether section 31.03(e)(4)(F) is unconstitutionally

vague.4 Appellee does not argue that this section is vague in the sense that he

cannot understand what it prohibits. He also does not explicitly raise a complaint

about substantive due process. Rather, he contends that the section is vague,

and violates his due process rights, because it fails to “provide minimal

guidelines necessary to prevent arbitrary or discriminatory enforcement.”

Specifically, he argues that section 31.03(e)(4)(F) is infirm because it “delegates

to law enforcement unfettered discretion to prosecute a defendant for either a




      4
       The trial court concluded that the statute is “overly broad and void for
vagueness.” The parties’ briefs do not focus on overbreadth. Therefore, we do
not discuss overbreadth here.


                                          7
Class C misdemeanor offense punishable by only a $500 fine,[5] or for a State

Jail felony offense punishable by two years[’] confinement, for a theft of any

measurable amount of aluminum, bronze, copper[,] or brass.”             The State

acknowledges that the decisive question we must answer is whether the

legislature failed to establish minimal guidelines to cover prosecutorial discretion

in applying section 31.03(e)(4)(F).

      A statute may be unconstitutionally vague when it defines an offense in

such a way that it encourages arbitrary and discriminatory enforcement.

Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 1858 (1983); State v.

Holcombe, 187 S.W.3d 496, 499 (Tex. Crim. App.), cert. denied, 549 U.S. 824

(2006); see also State v. Edmond, 933 S.W.2d 120, 125 (Tex. Crim. App. 1996)

(“[T]he rationale for the vagueness doctrine extends beyond fair warning.         A

second rationale descends from the notion that a legislature must provide

minimal guidelines to govern law enforcement.”). The trial court’s findings of fact

manifest the court’s concern that section 31.03 could be enforced arbitrarily; the

court noted that “theft of a copper penny . . . [c]ould be a felony; an ounce of

gold[,] a misdemeanor; [and] an empty aluminum . . . can, a felony.”

Nonetheless, we conclude that federal and state precedents foreclose appellee’s




      5
       See Tex. Penal Code Ann. § 31.03(e)(1); see also Tex. Penal Code Ann.
§ 12.23 (West 2011) (“An individual adjudged guilty of a Class C misdemeanor
shall be punished by a fine not to exceed $500.”).


                                         8
argument that section 31.03(e)(4)(F) is infirm because it delegates to prosecutors

unfettered discretion to charge a defendant with either a misdemeanor or felony.6

      The Supreme Court considered a circumstance analogous to the one at

issue in United States v. Batchelder, 442 U.S. 114, 99 S. Ct. 2198 (1979).

There, two federal statutes each prohibited convicted felons from committing the

same act—receiving firearms—but the statutes had different maximum penalties.

Id. at 116, 99 S. Ct. at 2200. Batchelder was charged and convicted under the

      6
     This is undoubtedly the focus of appellee’s argument.                 Appellee
summarizes his argument by stating,

             Section 31.03(e)(4)(F) . . . vests unfettered discretion in local
      prosecutors to decide whether the theft [of a certain metal] should be
      prosecuted as a Class C misdemeanor, or as a State Jail felony.
      The vagueness doctrine of the Fourteenth Amendment imposed a
      constitutional duty on the Texas Legislature . . . to establish
      “minimum guidelines” to govern prosecutorial discretion and thereby
      prevent any “real possibility” that Section 31.03(e)(4)(F) could be
      enforced by local prosecutors in such an arbitrary fashion.

In the argument portion of appellee’s brief, he contends,

      [T]he question presented on this appeal is whether, when enacting
      Section 31.03(e)(4)(F), the Texas Legislature failed to “[establish]
      minimal guidelines” to govern prosecutorial discretion in a way that
      “authorizes or even encourages arbitrary and discriminatory
      enforcement.” . . . [T]his, and only this, is the question.

            ....

             . . .    [Section 31.03(e)(4)(F) confers] totally unfettered
      discretion upon a prosecutor to decide whether a defendant should
      be charged with a Class C misdemeanor punishable by a relatively
      small fine, or whether the defendant should be charged with a felony
      offense punishable by two years[’] confinement in a State Jail facility,
      for the identical conduct. . . . It “authorizes . . . arbitrary and
      discriminatory enforcement.”


                                         9
statute that authorized the greater penalty, but a federal court of appeals

reversed his sentence on the basis, in part, that a prosecutor’s authority to select

one of two statutes that were identical except for their penalty provisions

implicated important constitutional protections. Id. at 116–17, 99 S. Ct. at 2200–

01.   The court of appeals suggested that the statutes might “(1) be void for

vagueness, (2) implicate ‘due process and equal protection interest[s] in avoiding

excessive prosecutorial discretion and in obtaining equal justice,’ and

(3) constitute an impermissible delegation of congressional authority.”           Id. at

122–23, 99 S. Ct. 2203.

      The Supreme Court reversed the court of appeals’s decision and held that

the prosecutor’s choice between two statutes that proscribed the same conduct

but carried different penalties did not violate due process. Id. at 123–26, 99 S.

Ct. at 2203–05. The unanimous Court explained,

              It is a fundamental tenet of due process that “[n]o one may be
      required at peril of life, liberty or property to speculate as to the
      meaning of penal statutes.” A criminal statute is therefore invalid if it
      “fails to give a person of ordinary intelligence fair notice that his
      contemplated conduct is forbidden.” So too, vague sentencing
      provisions may pose constitutional questions if they do not state with
      sufficient clarity the consequences of violating a given criminal
      statute.

            The provisions in issue here, however, unambiguously specify
      the activity proscribed and the penalties available upon conviction.
      That this particular conduct may violate both Titles does not detract
      from the notice afforded by each. Although the statutes create
      uncertainty as to which crime may be charged and therefore what
      penalties may be imposed, they do so to no greater extent than
      would a single statute authorizing various alternative punishments.
      So long as overlapping criminal provisions clearly define the conduct


                                         10
      prohibited and the punishment authorized, the notice requirements
      of the Due Process Clause are satisfied.

            This Court has long recognized that when an act violates more
      than one criminal statute, the Government may prosecute[] under
      either so long as it does not discriminate against any class of
      defendants. Whether to prosecute and what charge to file or bring
      before a grand jury are decisions that generally rest in the
      prosecutor’s discretion.

             ....

             . . . [T]here is no appreciable difference between the
      discretion a prosecutor exercises when deciding whether to charge
      under one of two statutes with different elements and the discretion
      he exercises when choosing one of two statutes with identical
      elements. In the former situation, once he determines that the proof
      will support conviction under either statute, his decision is
      indistinguishable from the one he faces in the latter context. The
      prosecutor may be influenced by the penalties available upon
      conviction, but this fact, standing alone, does not give rise to a
      violation of the Equal Protection or Due Process Clause. Just as a
      defendant has no constitutional right to elect which of two applicable
      federal statutes shall be the basis of his indictment and prosecution
      neither is he entitled to choose the penalty scheme under which he
      will be sentenced.

              Approaching the problem of prosecutorial discretion from a
      slightly different perspective, the Court of Appeals postulated that
      the statutes might impermissibly delegate to the Executive Branch
      the Legislature’s responsibility to fix criminal penalties. We do not
      agree. The provisions at issue plainly demarcate the range of
      penalties that prosecutors and judges may seek and impose. In light
      of that specificity, the power that Congress has delegated to those
      officials is no broader than the authority they routinely exercise in
      enforcing the criminal laws.           Having informed the courts,
      prosecutors, and defendants of the permissible punishment
      alternatives available under each Title, Congress has fulfilled its
      duty.

Id. (emphases added) (citations omitted); see also Mannix v. Phillips, 619 F.3d

187, 200 (2d Cir.) (“[N]o clearly established constitutional prohibition of statutory


                                         11
vagueness is violated when two statutes proscribe the same conduct and a

defendant is charged under the one subjecting him to greater punishment.”), cert.

denied, 562 U.S. 1049 (2010); State v. Rourke, 773 N.W.2d 913, 917 (Minn.

2009) (citing Batchelder and stating that the “sentencing uncertainty caused by

two statutes that prohibit the same conduct, but prescribe different penalties,

does not render the statutes unconstitutionally vague as long as each statute

unambiguously specifies the activity proscribed and the penalty available on

conviction”).

      Like the Supreme Court in Batchelder, the Texas Court of Criminal

Appeals has held that a prosecutor’s choice between penalty provisions related

to the same conduct by the defendant does not violate the defendant’s

constitutional rights. Earls v. State, 707 S.W.2d 82, 86–87 (Tex. Crim. App.

1986). In Earls, the defendant was convicted of theft “from a person,” which

enhanced the penalty from an ordinary theft charge.     Id. at 82, 84. On appeal,

he argued that the State’s ability to charge him under multiple parts of the theft

statute for the same act rendered the statute arbitrary and void for vagueness.

Id. at 86. The court of criminal appeals disagreed, reasoning,

            A statute is void for vagueness if it fails to give a person of
      ordinary intelligence fair notice that his contemplated conduct is
      forbidden by statute. . . . The fact that a defendant might not know
      which of several penalty provisions he will actually be charged with
      does not render the provisions vague.

            . . . [T]heft from a person requires certain specific conduct—a
      taking from the person or from their immediate possession. The
      availability of alternative jurisdictional or penalty elements does not


                                        12
      render the statute vague so long as those elements are sufficiently
      described. . . .

             Nor does the fact that the jurisdictional element which
      determines the basis of punishment . . . may be charged under
      several provisions render the statute arbitrary. The State has limited
      discretion within the guidelines of the statute to charge an offense
      under one part of a statute or another or even as to charge one
      particular offense as opposed to another offense when a person’s
      conduct meets the requirements. The fact that a person’s conduct
      violates two parts of a statute or even two different statutes does not
      make the statute vague as long as the proscribed conduct is
      described so as to give a person fair notice that it violates the
      statute.

Id. at 86–87 (emphases added); see also Porter v. State, 806 S.W.2d 316, 320–

21 (Tex. App.—San Antonio 1991, no pet.) (citing Earls for the proposition that a

“statute is not unconstitutionally vague simply because the defendant might not

know in advance within what range of penalties he will actually be charged as

long as the statute sufficiently describes the offense, giving a person of ordinary

intelligence fair notice that the contemplated conduct is forbidden”).

      Finally, echoing the holdings in Batchelder and Earls, we have concluded

that the “fact that different consequences are authorized by more than one

applicable statute does not reduce the notice given to the defendant of the

consequences provided for in each.” Tex. Dep’t of Pub. Safety v. Chavez, 981

S.W.2d 449, 452–53 (Tex. App.—Fort Worth 1998, no pet.); see also Ex parte

Luster, 846 S.W.2d 928, 930 (Tex. App.—Fort Worth 1993, pet. ref’d) (“[T]he fact

that a defendant’s conduct violates more than one statute does not make the

statute vague so long as the proscribed conduct is described in a manner that



                                         13
gives fair notice of what is forbidden.        Similarly, the fact that different

punishments are authorized by more than one applicable statute does not detract

from a defendant’s notice of the punishment under each.” (citation omitted)).

        We conclude that these cases, which we are bound to follow, foreclose

appellee’s position that section 31.03 violates due process and encourages

arbitrary and discriminatory enforcement merely because a prosecutor may

choose between pursuing alternative but clearly defined penalties that may apply

to the same act of theft. See Batchelder, 442 U.S. at 122–26, 99 S. Ct. at 2203–

05; Earls, 707 S.W.2d at 86–87; Luster, 846 S.W.2d at 930.

        The dissenting opinion does not address or attempt to distinguish these

precedential and controlling decisions from the United States Supreme Court, the

court of criminal appeals, and this court. Instead, the dissenting opinion bases a

large part of its analysis on chapter 1956 of the occupations code, which neither

party cited.   But chapter 1956 explicitly provides prosecutors with the very

discretion that the dissenting opinion decries. Section 1956.040(e) states, “If

conduct that constitutes an offense under this section also constitutes an offense

under any other law, the actor may be prosecuted under this section or the other

law.”   Tex. Occ. Code Ann. § 1956.040(e) (West Supp. 2015).          We cannot

disregard this clearly expressed intent to authorize a prosecution under either

section 31.03 of the penal code or section 1956.040 of the occupations code.

See Jones v. State, 396 S.W.3d 558, 563 (Tex. Crim. App. 2013) (upholding the

legislature’s clear intent to allow for prosecutorial choice in charging either


                                       14
fraudulent use of identifying information or failure to identify, which are contained

in different sections of the penal code and carry different penalties).

      The dissenting opinion does raise thoughtful questions about how and

whether section 31.03(e)(4)(F) applies when one of the metals listed in the

section is a secondary or insignificant component of a stolen object.7           But

appellee’s contention on appeal is not that he cannot understand what section

31.03(e)(4)(F) prohibits but that the State has too much discretion to charge theft

under that section or other provisions within section 31.03. And the dissenting

opinion’s fact-driven concerns are out of place in this facial constitutional

challenge, in which we must uphold section 31.03(e)(4)(F) if it could ever be

applied constitutionally. See Peraza, 467 S.W.3d at 515; Rosseau, 396 S.W.3d

at 558.

      Finally, the dissenting opinion raises a constitutional issue concerning the

specificity of the notice provided by appellee’s indictment. But this issue is not

the subject of this appeal, and neither party has discussed it. We should not

address it sua sponte. See Pena v. State, 191 S.W.3d 133, 138 (Tex. Crim. App.

2006) (holding that an appellate court erred by deciding an unbriefed

constitutional issue).




      7
       These metals do not appear to be secondary or insignificant components
of an aluminum baseball bat, a cast iron skillet, or a chain, all of which appear to
be associated with appellee’s theft charge.


                                         15
      We hold that section 31.03(e)(4)(F) may operate constitutionally under

some circumstances and therefore is not facially void for vagueness.8 Thus, we

sustain the State’s sole issue.

                                    Conclusion

      Having sustained the State’s issue, we reverse the trial court’s order

granting appellee’s motion to dismiss the indictment against him for theft under

section 31.03(e)(4)(F), and we remand this case to the trial court for further

proceedings.

                                                    /s/ Terrie Livingston
                                                    TERRIE LIVINGSTON
                                                    CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and SUDDERTH, JJ.

DAUPHINOT, J., filed a dissenting opinion.

SUDDERTH, J., filed a concurring opinion.

PUBLISH

DELIVERED: August 4, 2016
      8
       We express no opinion concerning whether there are some circumstances
in which the statute may operate unconstitutionally. Appellee concedes that any
as-applied challenge to the statute at this stage is not cognizable. Thus, we do
not reach the trial court’s as-applied conclusion, which it supported by its
attachments to its findings of fact and conclusions of law, that the Legislature “did
not envision [the application of section 31.03(e)(4)(F)] in this alleged
circumstance.” [Emphasis added.]

       We also decline to opine about whether section 31.03(e)(4)(F) must trump
other parts of the theft statute under the in pari materia rule—an issue that
appellee discusses in a postsubmission letter brief—because that issue is not
necessary to the disposition of this appeal. See Tex. R. App. P. 47.1; Little v.
State, 376 S.W.3d 217, 221 (Tex. App.—Fort Worth 2012, pet. ref’d).


                                         16
