AFFIRM; and Opinion Filed November 5, 2018.




                                               In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                        No. 05-17-01325-CR

                           DEANN ROCHELLE FLOYD, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                       On Appeal from the 265th Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. F-1710870-R

                              MEMORANDUM OPINION
                             Before Justices Myers, Evans, and Brown
                                    Opinion by Justice Brown
       Following a jury trial, Deann Rochelle Floyd appeals a conviction for theft of property

valued at less than $2500, with two prior theft convictions. In a single issue, appellant contends

the evidence is insufficient to prove the prior theft convictions. We affirm.

       A person commits theft if she unlawfully appropriates property with the intent to deprive

the owner of the property. TEX. PENAL CODE ANN. § 31.03(a). The offense is a state jail felony if

the value of the property stolen is less than $2500 and the defendant has been previously convicted

two or more times of any grade of theft. Id. § 31.03(e)(4)(D). When a misdemeanor theft is

elevated to a felony theft, the State must prove both the underlying theft and at least two prior theft

convictions. Barnes v. State, 103 S.W.3d 494, 49 (Tex. App.—San Antonio 2003, no pet.) (citing
Gant v. State, 606 S.W.2d 867, 871 (Tex. Crim. App. [Panel Op.] 1980)). The prior theft

convictions become jurisdictional elements of the theft charge. Id.

       Appellant was indicted for an August 2017 theft from a Walmart in Dallas County. The

indictment alleged she had two prior theft convictions, one out of Nueces County in 2009 and one

out of Hidalgo County in 2004. The State later filed a motion to amend the indictment. The State

sought to amend the paragraphs involving the prior theft convictions. Instead of the Hidalgo

County conviction, the State sought to allege a 2013 theft conviction out of Dallas County. In

addition, the State sought to modify the cause number for the Nueces County theft conviction from

CR09001714C to 09-CR-1714-C. At a hearing on the State’s motion a few days before trial,

appellant affirmatively stated she had no objection to the amendments and waived her right to a

continuance to respond to them. The trial court signed an order granting the State’s motion.

       When the case went to trial, appellant pleaded not guilty. Her signed written stipulation

that she had two prior theft convictions was admitted into evidence. The theft convictions specified

in the stipulation of evidence matched the allegations in the State’s motion to amend.         After

hearing from the State’s witnesses regarding the events at Walmart, the jury found appellant guilty

and assessed her punishment at seven years’ confinement.

       In this appeal, appellant contends the evidence is legally insufficient to support her

conviction because the State did not prove up the two prior theft convictions alleged in the original

indictment. According to appellant, the State’s attempt to amend the indictment was ineffective

because the amendments were not interlineated into the original indictment, nor did the trial court’s

order contain the amendments.

       In 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 factfinder was rationally justified in finding guilt beyond a reasonable

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doubt. Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013); see Jackson v. Virginia,

443 U.S. 307, 318–19 (1979). We measure the evidence by the elements of the offense as defined

by a hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex.

Crim. App. 1997). A hypothetically correct jury charge is one that “accurately 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.” Zuniga v. State, 551 S.W.3d 729, 733 (Tex. Crim.

App. 2018) (quoting Malik, 953 S.W.2d at 240).

       For purposes of this appeal, we need not decide whether the indictment was properly

amended and express no opinion on that issue. Appellant has not directly raised an issue

complaining about the amendments and only does so indirectly by her sufficiency challenge.

Appellant waived any error in the amendment of the indictment by failing to object in the trial

court. See TEX. CODE CRIM. PROC. ANN. art. 1.14(b) (if defendant does not object to defect, error,

or irregularity of form or substance in indictment before date on which trial on merits commences,

she waives and forfeits right to object and may not raise objection on appeal); Adams v. State, 179

S.W.3d 161, 163 (Tex. App.—Amarillo 2005, no pet.). When a defendant fails to preserve error

related to amendment of an indictment, we review her challenge to the sufficiency of the evidence

based on the amended indictment, not the original indictment. See Trevino v. State, 470 S.W.3d

660, 663 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d); cf. Curry v. State, 30 S.W.3d 394,

404 (Tex. Crim. App. 2000) (where defendant preserved meritorious issue about erroneous

amendment of indictment, sufficiency is measured against original indictment).           Thus the

hypothetically correct charge for this case contains the prior theft convictions alleged in the

amended indictment. Appellant stipulated that she was convicted of those two prior thefts. The




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evidence is legally sufficient to support her 2017 conviction. See Crawford v. State, 496 S.W.3d

334, 342 (Tex. App.—Fort Worth 2016, pet. ref’d). We overrule appellant’s sole issue.



       We affirm the trial court’s judgment.




                                                 /Ada Brown/
                                                 ADA BROWN
                                                 JUSTICE


Do Not Publish
TEX. R. APP. P. 47.2(b).

171325F.U05




                                               –4–
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

 DEANN ROCHELLE FLOYD, Appellant                   On Appeal from the 265th Judicial District
                                                   Court, Dallas County, Texas
 No. 05-17-01325-CR        V.                      Trial Court Cause No. F-1710870-R.
                                                   Opinion delivered by Justice Brown,
 THE STATE OF TEXAS, Appellee                      Justices Myers and Evans participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 5th day of November, 2018.




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