                                                                                     ACCEPTED
                                                                                06-14-00056-CR
                                                                      SIXTH COURT OF APPEALS
                                                                           TEXARKANA, TEXAS
                                                                          1/16/2015 11:06:27 AM
                                                                                DEBBIE AUTREY
                                                                                         CLERK

                                 In the
                       Court of Appeals for the
                 Sixth District of Texas at Texarkana          FILED IN
                                                        6th COURT OF APPEALS
                                                          TEXARKANA, TEXAS
 Gary Moore,                      §                     1/16/2015 11:06:27 AM
     Appellant                    §                          DEBBIE AUTREY
                                                                 Clerk
                                  §
           v.                     §         No. 06-14-00056-CR
                                  §
 The State of Texas,              §
     Appellee                     §

                Trial Number 296-81210-2013 in the
                296th District Court of Collin County
          The Honorable John R. Roach, Jr., Judge Presiding

                          STATE’S BRIEF

                                      Greg Willis
                                      Criminal District Attorney
                                      Collin County, Texas

                                      John R. Rolater, Jr.
                                      Asst. Criminal District Attorney
                                      Chief of the Appellate Division

Oral argument is not requested        Emily Johnson-Liu
unless Appellant requests             Asst. Criminal District Attorney
argument                              2100 Bloomdale Rd., Suite 200

                                      McKinney, TX 75071
                                      (972) 548-4323
                                      FAX (214) 491-4860
                                      State Bar No. 24032600
                                      ejohnson-liu@co.collin.tx.us

                                      Haley Hendrix & Wes Wynne
                                      Asst. Criminal District Attorneys
                                    Table of Contents

Index of Authorities ..................................................................................iv

Statement Regarding Oral Argument ...................................................... 1

Statement of the Case ...............................................................................1

Statement of Facts..................................................................................... 1

Summary of the State’s Arguments .......................................................... 6

Argument & Authorities ...........................................................................8

Issue One (Sufficiency of the Theft Offense) ..........................................8

                The evidence is sufficient to establish that
                Appellant intended to deprive Wal-Mart of the
                property he abandoned just inside the exit
                door. Appellant made a deliberate path toward
                a deserted exit with several high-end items,
                repeatedly looked over his shoulder as he went,
                and abandoned his advance toward the exit
                only when startled by the sudden appearance of
                a police car outside the exit gate.

I. Standard of review ...............................................................................8

II. The circumstantial evidence was sufficient to establish
    Appellant intended to deprive Wal-Mart of its property .................... 9

Issues Two and Three (Alleged indictment amendment &
Sufficiency of a jurisdictional prior) ........................................................ 16

                Because no actual amendment to the
                indictment took place, there was no error
                stemming from the trial court’s decision to
                permit an amendment over the defense
                objection on the day trial began. Even though


                                                                                                     i
                 the indictment was not actually amended, this
                 did not result in a material variance between
                 pleading and proof as the prosecutor was
                 merely trying to alter the name of the
                 convicting court for one of the jurisdictional
                 prior convictions alleged in the indictment.

I. Additional relevant facts ................................................................... 16

II. State’s motion to amend .................................................................... 18

    A. The indictment was never amended, so there was no
       reversible error in granting the State’s motion to amend........... 18

    B. Even if the amendment was effective, any error in
       permitting the amendment was harmless .................................. 22

III. Sufficiency of the jurisdictional prior in light of the variance
    between pleading and proof ............................................................... 23

Issue Four (Sufficiency to prove punishment enhancement
paragraphs).............................................................................................. 27

                 This Court should not reach Appellant’s
                 complaint concerning the sufficiency of the
                 State’s proof of prior convictions alleged for
                 punishment enhancement because Appellant
                 waived his right to appeal punishment issues
                 in exchange for an agreed 5-year sentence. In
                 any case, there was sufficient proof of two
                 sequential non-theft felony convictions to
                 support enhancement to a second-degree
                 felony.

I. Appellant knowingly waived his right to appeal sentencing
   issues .................................................................................................. 27

II. Sufficient evidence supports enhancement to a second-degree
    felony .................................................................................................. 31



                                                                                                          ii
Issue Five (Details of Appellant’s prior theft convictions) ................... 35

                 It was not error to inform the jury of the details
                 of Appellant’s prior theft convictions either
                 through the State’s evidence of those prior
                 convictions or in the jury charge. Appellant
                 pleaded true to the prior theft convictions,
                 which had the effect of removing that element
                 from the jury’s consideration. But because
                 Appellant did not ask the State to forgo
                 admitting its evidence of his priors in exchange
                 for his plea of true, he forfeited any complaint
                 about the admission of that evidence. Any error
                 in including the details of the prior offense in
                 the charge was harmless since the jury
                 properly heard the same facts when the State
                 read the indictment.

I. The law involving jurisdictional priors ............................................. 35

II. Admission of other evidence of jurisdictional priors ......................... 37

III. Details of prior thefts in the jury charge........................................... 40

Prayer ...................................................................................................... 46

Certificate of Service ............................................................................... 47

Certificate of Compliance ........................................................................ 47




                                                                                                          iii
                             Index of Authorities

Cases

Almanza v. State,
 686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh'g) ..................... 44

Arce v. State,
 552 S.W.2d 163 (Tex. Crim. App. 1977) ........................................... 24

Baker v. State,
 511 S.W.2d 272 (Tex. Crim. App. 1974) ....................................... 9, 10

Barnes v. State,
 513 S.W.2d 850 (Tex. Crim. App. 1974) ........................................... 10

Blanco v. State,
 18 S.W.3d 218 (Tex. Crim. App. 2000) ....................................... 28, 29

Brooks v. State,
 323 S.W.3d 893 (Tex. Crim. App. 2010) ....................................... 8, 13

Brown v. State,
 No. 06-11-00127-CR, 2012 WL 899225 (Tex. App.—Texarkana
 Mar. 16, 2012, pet. ref'd) (not designated for publication) ............... 25

Bryant v. State,
 187 S.W.3d 397 (Tex. Crim. App. 2005) ........................................... 42

Butler v. State,
 No. 01-10-00725-CR, 2012 WL 1379628 (Tex. App.—Houston [1st
 Dist.] Apr. 19, 2012, no pet.) (not designated for publication) ......... 10

C.L.A. v. State,
 478 So.2d 872 (Fla. Dist. Ct. App. 1985) .......................................... 13

Chambers v. State,
 736 S.W.2d 192 (Tex. App.—Dallas 1987, no pet.) ........................... 32

Chandler v. State,
 21 S.W.3d 922 (Tex. App.—Houston [14th Dist.] 2000, no pet.) ...... 42


                                                                                     iv
Dukes v. State,
 239 S.W.3d 444 (Tex. App.—Dallas 2007, pet. ref'd) ....................... 22

Duncan v. State,
 850 S.W.2d 813 (Tex. App.—Houston [14th Dist.] 1993, no pet.) .... 21

Dunn v. State,
 08-02-00516-CR, 2004 WL 1858352 (Tex. App.—El Paso Aug. 19,
 2004, pet. ref'd) (not designated for publication) ............................. 39

Ex parte Garza,
 192 S.W.3d 658 (Tex. App.—Corpus Christi 2006, no pet.) ............. 29

Ex parte Huskins,
 176 S.W.3d 818 (Tex. Crim. App. 2005) ........................................... 26

Ex parte Tabor,
 565 S.W.2d 945 (Tex. Crim. App. 1978) ........................................... 28

Faris v. State,
 No. 06-12-00019-CR, 2012 WL 4459598 (Tex. App.—Texarkana
 Sept. 26, 2012, pet. ref'd) (not designated for publication) .............. 29

Faulkner v. State,
 402 S.W.3d 507 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd) 28

Foster v. State,
 603 S.W.2d 879 (Tex. Crim. App. 1980) ..................................... 32, 34

Freda v. State,
 704 S.W.2d 41 (Tex. Crim. App. 1986) ............................................. 24

Freeman v. State,
 413 S.W.3d 198(Tex. App.—Houston [14th Dist.] 2013, pet. ref'd) . 43

Fuller v. State,
 253 S.W.3d 220 (Tex. Crim. App. 2008) ........................................... 37

Geesa v. State,
 820 S.W.2d 154 (Tex. Crim. App. 1991), overruled on other grounds
 by Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000) ............ 15


                                                                                    v
Gonzalez v. State,
 No. 13-05-115-CR, 2006 WL 488681 (Tex. App.—Corpus Christi
 Mar. 2, 2006, no pet.) (not designated for publication) .................... 42

Guevara v. State,
 152 S.W.3d 45 (Tex. Crim. App. 2004) ............................................... 9

Harvey v. State,
 611 S.W.2d 108 (Tex. Crim. App. 1981) ........................................... 41

Hawkins v. State,
 214 S.W.3d 668 (Tex. App.—Waco 2007, no pet.) ............................ 10

Hollen v. State,
 117 S.W.3d 798 (Tex. Crim. App. 2003) ........................................... 40

Hollins v. State,
 571 S.W.2d 873 (Tex. Crim. App. 1978) ........................................... 24

Illinois v. Wardlow,
  528 U.S. 119 (2000) ........................................................................... 14

Jackson v. Virginia,
 443 U.S. 307 (1979) ............................................................................. 8

James v. State,
 425 S.W.3d 492 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d) ... 22

Lackey v. State,
 881 S.W.2d 418 (Tex. App.—Dallas 1994, pet. ref'd) ....................... 33

Marbella v. State,
 No. 646-00, 2003 WL 1845140 (Tex. Crim. App. Apr. 9, 2003) (not
 designated for publication) ............................................................... 36

Martin v. State,
 200 S.W.3d 635 (Tex. Crim. App. 2006) ..................................... 36, 44

McFarland v. State,
 834 S.W.2d 481 (Tex. App.—Corpus Christi 1992, no pet.) ............. 22



                                                                                                 vi
Minnamon v. State,
 988 S.W.2d 408 (Tex. App.—Houston [1st Dist.] 1999, no pet.) ...... 36

Monreal v. State,
 99 S.W.3d 615 (Tex. Crim. App. 2003) ............................................. 28

Nall v. State,
 No. 14-06-00345-CR, 2007 WL 2481171 (Tex. App.—Houston [14th
 Dist.] Sept. 4, 2007, no pet.) (not designated for publication) ......... 39

Old Chief v. United States,
 519 U.S. 172 (1997) ........................................................................... 35

Perez v. State,
 429 S.W.3d 639 (Tex. Crim. App. 2014) ..................................... 19, 20

Perez v. State,
 885 S.W.2d 568 (Tex. App.—El Paso 1994, no pet.) ......................... 28

Puente v. State,
 320 S.W.3d 352 (Tex. Crim. App. 2010) ........................................... 21

Rawlings v. State,
 602 S.W.2d 268 (Tex. Crim. App. 1980) ........................................... 31

Riney v. State,
 28 S.W.3d 561 (Tex. Crim. App. 2000) ....................................... 19, 20

Robles v. State,
 85 S.W.3d 211 (Tex. Crim. App. 2002) ....................................... 38, 39

Rowland v. State,
 744 S.W.2d 610 (Tex. Crim. App. 1988) ............................................. 9

Serna v. State,
 69 S.W.3d 377 (Tex. App.—El Paso 2002, no pet.) ........................... 21

Smallwood v. State,
 827 S.W.2d 34(Tex. App.—Houston [1st Dist.] 1992, pet. ref'd ....... 32

Sodipo v. State,
 815 S.W.2d 551 (Tex. Crim. App. 1991) ........................................... 18

                                                                                                vii
State v. Deaton,
 438 So.2d 1218 (La. Ct. App. 1983) .................................................. 12

State v. Murk,
 815 S.W.2d 556 (Tex. Crim. App. 1991) ........................................... 18

Tamez v. State,
 11 S.W.3d 198 (Tex. Crim. App. 2000) ............................................. 36

Tata v. State,
 446 S.W.3d 456 (Tex. App.—Houston [1st Dist.] 2014, pet. filed) ... 21

Taylor v. State,
 332 S.W.3d 483 (Tex. Crim. App. 2011) ........................................... 44

Urbano v. State,
 808 S.W.2d 519 (Tex. App.—Houston [14th Dist.] 1991, no pet.) .... 42

Valenti v. State,
 49 S.W.3d 594 (Tex. App.—Fort Worth 2001, no pet.) ..................... 25

Villescas v. State,
 189 S.W.3d 290 (Tex. Crim. App. 2006) ........................................... 24

Ward v. State,
 829 S.W.2d 787(Tex. Crim. App. 1992), overruled in part by
 Riney v. State, 28 S.W.3d 561 (Tex. Crim. App. 2000) ............... 19, 20

Webb v. State,
 No. 05-00-02104-CR, 2002 WL 851730 (Tex. App.—Dallas May 6,
 2002, no pet.) (not designated for publication) ................................. 42

Wilson v. State,
 520 S.W.2d 377 (Tex. Crim. App. 1975) ........................................... 21

Woods v. State,
 398 S.W.3d 396 (Tex. App.—Texarkana 2013, pet. ref'd) ................ 42

Wright v. State,
 28 S.W.3d 526 (Tex. Crim. App. 2000) ............................................. 22



                                                                                     viii
Statutes

Tex. Code Crim. Proc. art. 1.14(a) ....................................................... 27

Tex. Code Crim. Proc. art. 28.10 ................................................... 18, 20

Tex. Code Crim. Proc. art. 28.11 ............................................. 18, 19, 21

Tex. Code Crim. Proc. art. 37.071 ....................................................... 22

Tex. Penal Code § 12.425(b) ............................................................ 1, 31

Tex. Penal Code § 30.04 ...................................................................... 33

Tex. Penal Code § 31.03 ........................................................................ 9

Tex. Penal Code § 31.03(a) .................................................................. 33

Tex. Penal Code § 31.03(e)(4)(D) ............................................... 1, 31, 34



Rules

Tex. R. App. P. 33.1(a) ......................................................................... 37

Tex. R. App. P. 44.2(b) ................................................................... 22, 23



Other Authorities

Evidence Law-Boundaries, Balancing, and Prior Felony Convictions:
 Federal Rule of Evidence Rule 403 After United States v. Old Chief,
 28 N.M.L. Rev. 583 (1998) ................................................................ 38




                                                                                                 ix
                    Statement Regarding Oral Argument

        The State does not believe oral argument will assist the Court

in resolving the issues in this case. However, if oral argument is

granted to Appellant, the State requests the opportunity to respond.


                                 Statement of the Case

Charge.... Third-offender Theft (Theft under $1500 with 2 prior thefts)
                                       Tex. Penal Code § 31.03(e)(4)(D)
                                                                CR 11

                                      Further enhanced by two non-theft felonies
                                                    Tex. Penal Code § 12.425(b)
                                                                      CR 56-58

Plea to the Theft Offense ........................................................ Not Guilty
                                                                                    4 RR 130

Plea to the Two Prior Thefts Alleged for Jurisdiction .................... True
                                                                    4 RR 131

Verdict (Jury)................................................................................. Guilty
                                                                                             5 RR 33

Agreed Punishment ................................................ 5 years’ confinement
                                                                                5 RR 44

                                   Statement of Facts

        Loss Prevention Officer (LPO) Tyler Aroche was watching real-

time surveillance at Wal-Mart on December 12, 2012, looking for

shoplifters. 4 RR 136-37. Around 9:30 p.m., he noticed Appellant grab


                                                                                                    1
several portable DVD players off the shelf, “one after another,

without looking at the price.” 4 RR 137-38. Aroche had been trained

to look for certain behaviors typical of shoplifters, and this was one

such behavior: quickly selecting items in multiples without first

pausing to verify the price. 4 RR 137, 156, 162. LPOs were also

trained to look for customers selecting “high dollar” items. 4 RR 137.

     As Aroche continued his remote observation, he saw Appellant

continually looking around. 4 RR 137. In Aroche’s experience, people

who are shoplifting look around to see if they are being watched, and

he believed this was what Appellant was doing. 4 RR 137, 157.

Aroche noticed that Appellant would leave the DVD players behind in

the shopping cart while he walked around the electronics department,

“constantly looking around.” 4 RR 138-40. Instead of looking at

merchandise, Appellant was repeatedly looking over his shoulder. 4

RR 140. It appeared to Aroche that he was looking to see if anyone

was watching him. 4 RR 140. This behavior was not consistent with

that of the typical shopper that Aroche observed on a daily basis. 4

RR 148. The usual shopper does not leave their cart to walk around

nervously as Appellant did. 4 RR 148.



                                                                         2
     Because he believed there was a theft in progress, Aroche (who

was dressed in plain clothes) left the LPO office to observe Appellant

in person and called 911. 4 RR 139. Appellant, meanwhile, returned

to his shopping cart and began walking toward the garden center. 4

RR 140. That part of the store was already closed for the night, and

no employees were present to ring up purchases. 4 RR 140-41, 155.

     In Aroche’s experience, the garden center was a common place

for shoplifters to try to leave the store with merchandise, particularly

since few people could be found in that part of the store at night. 4 RR

141. That night was no exception; the garden center was “pretty

deserted.” 4 RR 159.

     Aroche saw Appellant “walking with some purpose” through the

garden center, pushing the shopping cart past the last cash register

inside the store building and then outdoors onto the partly covered

outdoor garden center area. 4 RR 141-42, 151-52, 159. He did not stop

to look at any merchandise in the garden center but was looking

behind him as he went. 4 RR 141, 145; SX 1 (Part 6) at 9:17:20.

     Just as he was reaching the darkened portion of the patio

outside, car lights appeared through the gate in front of him, and



                                                                      3
Appellant stopped, turned his head, and looked outside. 4 RR 142; SX

1 (Part 6) at 9:17:21. Aroche saw at that moment that a police cruiser

had “just arrived” and was visible from inside the garden center. 4 RR

141-42, 168. Appellant took his hands off the cart, left the cart

behind, and walked back into the main part of the store and out the

front exit, continuing to look over his shoulder nervously. 4 RR 142.

     After Aroche had called 911, Plano Police Officer Kyle Norton,

and several other police units responded to the Wal-Mart, and Officer

Norton met Appellant at the front exit. 4 RR 166, 168. Aroche told

Officer Norton that he had seen Appellant approach the garden

center exit with items he had not purchased and that Appellant had

looked out and was “startled.” 4 RR 169. As to what may have

startled Appellant, Aroche told Officer Norton he believed Appellant

had seen the officer positioned at the garden center exit. 4 RR 169.

Officer Norton also found it significant that Appellant had gone out

“completely opposite doors from where he was at, and there was a

door right there that he could have used.” 4 RR 172.

     When Officer Norton asked Appellant about what had

happened, the only thing Appellant said was that he had stopped to



                                                                        4
shop at the Wal-Mart on his way home after a gambling trip to

Oklahoma. 4 RR 169.

      The merchandise Appellant left behind in the shopping cart

near the garden center exit included five portable DVD players, two

rolls of wrapping paper, and two decorative pillows, totaling $561.76.

4 RR 149; SX 2. Officer Norton arrested Appellant, and he was later

indicted for theft under $1,500 with two prior theft convictions. 4 RR

170; CR 11.




                                                                    5
                Summary of the State’s Arguments

State’s Reply to Issue One:

     The evidence is sufficient to establish that Appellant intended

to deprive Wal-Mart of the property he abandoned just inside the exit

door. Appellant made a deliberate path toward a deserted exit with

several high-end items, repeatedly looked over his shoulder as he

went, and abandoned his advance toward the exit only when startled

by the sudden appearance of a police car outside the exit gate.

State’s Reply to Issues Two & Three:

     Because no actual amendment to the indictment took place,

there was no error stemming from the trial court’s decision to permit

an amendment over the defense objection on the day trial began.

Even though the indictment was not actually amended, this did not

result in a material variance between pleading and proof as the

prosecutor was merely trying to alter the name of the convicting court

for one of the jurisdictional prior convictions alleged in the

indictment.




                                                                     6
State’s Reply to Issue Four:

      This Court should not reach Appellant’s complaint concerning

the sufficiency of the State’s proof of prior convictions alleged for

punishment enhancement because Appellant waived his right to

appeal punishment issues in exchange for an agreed 5-year sentence.

In any case, there was sufficient proof of two sequential non-theft

felony convictions to support enhancement to a second-degree felony.

State’s Reply to Issue Five:

      It was not error to inform the jury of Appellant’s specific prior

theft convictions either through the State’s evidence of those prior

convictions or in the jury charge. Case law does not prohibit the jury

charge from specifying the details of a defendant’s prior convictions.

And since he did not object to the admission of evidence, Appellant

forfeited any error in the admission of the State’s exhibits. Although

Appellant pleaded true to the prior theft convictions, he forfeited any

complaint about the admission of the details of those convictions by

failing to proffer a written stipulation in lieu of the State’s evidence of

his priors.




                                                                         7
                       Argument & Authorities

                             Issue One
                  (Sufficiency of the Theft Offense)

        The evidence is sufficient to establish that Appellant
        intended to deprive Wal-Mart of the property he
        abandoned just inside the exit door. Appellant made
        a deliberate path toward a deserted exit with several
        high-end items, repeatedly looked over his shoulder
        as he went, and abandoned his advance toward the
        exit only when startled by the sudden appearance of
        a police car outside the exit gate.

I. Standard of review

     In determining whether the evidence is sufficient, a reviewing

court views all the evidence in the light most favorable to the State

and determines whether any rational trier of fact could have found

the essential elements of the offense beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 318 (1979); Brooks v. State, 323

S.W.3d 893, 895 (Tex. Crim. App. 2010). This standard ensures that it

remains the jury’s responsibility to fairly resolve conflicts in the

testimony, weigh the evidence, and to draw reasonable inferences

from basic to ultimate facts. Jackson, 443 U.S. at 319.




                                                                    8
II. The circumstantial evidence was sufficient to establish
    Appellant intended to deprive Wal-Mart of its property

     A person commits the offense of theft if he unlawfully

appropriates property with the intent to deprive the owner of the

property. Tex. Penal Code § 31.03. Intent to deprive may be

established by showing the defendant actually deprived the owner of

his property. Rowland v. State, 744 S.W.2d 610, 612 (Tex. Crim. App.

1988). But actual deprivation is not an element of theft, and intent to

deprive may be established by other evidence. Id. Intent may be

inferred from circumstantial evidence such as acts, words, and the

conduct of the defendant. Guevara v. State, 152 S.W.3d 45, 50 (Tex.

Crim. App. 2004).

     Appellant complains that the evidence in the instant case did

not show he intended to deprive Wal-Mart of property since he did

not attempt to conceal any merchandise and did not actually remove

it from the premises. App. Brief at 11. But neither fact is required for

theft. As early as 1974, the Court of Criminal Appeals held that

removal of the property from the premises was not required to

establish the offense theft. Baker v. State, 511 S.W.2d 272, 272 (Tex.

Crim. App. 1974). In Baker, the defendant scaled the fence of a


                                                                      9
company, moved a 200-pound valve two or three feet from its original

position with the help of his accomplice, and was apprehend as he

climbed back over the fence. Id. The Court found this evidence

sufficient for theft. Id. In yet another case, the Court upheld a

conviction for vehicle theft when the defendant got into a car that had

its key still in the ignition, started the motor, and had only put his

hands on the steering wheel when several off-duty police officers (who

were in charge of the car) arrested him. Barnes v. State, 513 S.W.2d

850, 850 (Tex. Crim. App. 1974). The Barnes Court held that the

taking was complete although the defendant was interrupted before

he had time to abscond with the property. Id. at 851.

     More recently, the Waco Court of Appeals reaffirmed the same

proposition—that property need not be removed to constitute theft.

Hawkins v. State, 214 S.W.3d 668, 670 (Tex. App.—Waco 2007, no

pet.). In Hawkins, the defendant picked up a roll of barbed wire from

a store at night, dropped it when he was startled by an employee, and

fled. Id. The court rejected the notion that the State had to prove

actual removal of the property before there could be a completed

theft. Id.; see also Butler v. State, No. 01-10-00725-CR, 2012 WL



                                                                    10
1379628 (Tex. App.—Houston [1st Dist.] Apr. 19, 2012, no pet.) (not

designated for publication) (finding defendant’s conduct sufficient to

establish intent for theft from Best Buy despite his re-shelving the

cell phone he had put in his pants when the front doors failed to open

when he tried to leave the store).

     The evidence in the instant case is likewise sufficient primarily

because it shows that Appellant all but removed the property from

the unstaffed exit and only failed to remove the property from the

premises because he did not want to be caught by a police officer

waiting outside the exit.

     But Appellant’s intent to steal may be inferred from the entirety

of his conduct. First, he put multiple expensive items in his cart

without pausing to look at the price. This was a small indication of

theft because for someone who was not going to be paying for the

DVD players, the price would be immaterial. The inference that

Appellant was committing a theft became still stronger when he left

his shopping cart and looked up and down the aisles, paying attention

to what people might be around, instead of the merchandise. To the




                                                                    11
trained loss prevention officer, this was not normal shopping

behavior.

     Appellant’s suspicious behavior took on nefarious intent when

he pushed the cart “with some purpose” into a deserted area of the

store, looking behind him as he went. 4 RR 137-140, 148, 157.

Contrary to Appellant’s assertions in the brief, the surveillance

footage captures Appellant repeatedly looking over his shoulder as he

walked through the garden center and toward the darkened exit:




SX 1 (Part 6) at 9:17:20. Other courts have found a defendant’s

conduct of repeatedly checking over his shoulder to be a factor

indicative of theft. See, e.g., State v. Deaton, 438 So.2d 1218, 1220 (La.

Ct. App. 1983) (finding evidence sufficient to establish required intent

for theft when defendant hid items in trash can in shopping cart,

repeatedly checked over her shoulder to make sure no one was


                                                                       12
watching, and attempted to exit store with goods at unattended

checkout aisle); C.L.A. v. State, 478 So.2d 872 (Fla. Dist. Ct. App.

1985) (sufficient evidence of theft as a party when juvenile distracted

store clerk and looked over shoulder for persons who might be

watching while his companion pried open jewelry case).

     Added to this conduct is the coincidence of Appellant’s decision

to abandon the cart on the threshold of the deserted exit at the very

moment a police car appeared outside. Aroche testified that when

Appellant abandoned the cart, a police cruiser had “just arrived” and

was visible from inside the garden center. 4 RR 141-42, 168. And at

the time, Aroche described Appellant as having been “startled.” 4 RR

169. Given the jury’s guilty verdict, they must have found Aroche’s

account of the timing of events credible, a fact finding that is entitled

to deference on appeal. See Brooks, 323 S.W.3d at 899 (“in the light

most favorable to the verdict” means the reviewing court must defer

to the jury’s credibility determinations).

     Furthermore,     the   surveillance     footage   corroborates   the

appearance of a car right as Appellant was at the threshold of the

darkened patio in front of the gate. SX 1 (Part 6) at 9:17:21. It also



                                                                       13
shows that the car caught Appellant’s attention, because Appellant

stopped the cart, turned his head, and looked outside before

abandoning the cart and walking in the opposite direction. Id. at

9:17:21. From this evidence, it was a reasonable deduction for the

jury to believe that but for the sudden appearance of the police car,

Appellant would have exited the store with the unpaid-for

merchandise.

      One final indicator of Appellant’s nefarious intent came from

Officer Norton, who testified that Appellant went out of his way to

avoid exiting near the police car and instead left through an exit that

was in an entirely different part of the store. 4 RR 172. This evidence

of flight, even at a slow speed, furthers the inference that Appellant

was intending to deprive Wal-Mart of its property until the police

showed up and he risked being caught. Headlong flight—wherever it

occurs—is the consummate act of evasion: It is not necessarily

indicative of wrongdoing, but it is certainly suggestive of such. Illinois

v. Wardlow, 528 U.S. 119, 124 (2000).

     Appellant’s intent to steal is apparent in the sum of all his

actions: how he selected the merchandise, kept watch over who might



                                                                       14
be observing him, took a deliberate path toward an unstaffed exit,

abandoned the merchandise on the sudden appearance of the police,

and adopted a circuitous route out of the store when the most direct

way out would take him past an officer. From this evidence, the jury

was not irrational in believing Appellant was intending to steal.

     Appellant points out that he was not concealing anything and

did not say anything to indicate his intent was to deprive Wal-Mart of

its property. Appellant suggests that it is equally plausible that

Appellant was innocently shopping and decided not to make his

purchases when he could not find everything he needed. App. Brief at

11, 13-14. But the State no longer has to exclude every other

reasonable hypothesis except that the defendant is guilty. Geesa v.

State, 820 S.W.2d 154, 160-61 (Tex. Crim. App. 1991), overruled on

other grounds by Paulson v. State, 28 S.W.3d 570, 572-73 (Tex. Crim.

App. 2000). Because the evidence when considered in the light most

favorable to the jury’s verdict supports the conclusion that Appellant

was intending to steal, this issue should be overruled.




                                                                    15
                      Issues Two and Three
(Alleged indictment amendment & Sufficiency of a jurisdictional prior)

        Because no actual amendment to the indictment took
        place, there was no error stemming from the trial
        court’s decision to permit an amendment over the
        defense objection on the day trial began. Even
        though the indictment was not actually amended,
        this did not result in a material variance between
        pleading and proof as the prosecutor was merely
        trying to alter the name of the convicting court for
        one of the jurisdictional prior convictions alleged in
        the indictment.

I. Additional relevant facts

     Before voir dire began on the day of trial, the State asked to

amend    the   indictment   allegation   regarding   Appellant’s   1994

jurisdictional prior theft conviction. 4 RR 5. More specifically, the

State sought to change the convicting court from “County Court at

Law #7,” to “County Court at Law #4.” Id. The following exchange

then took place:

     THE COURT: Okay. Any objection by the Defense?


     MS. NAHAS: Yes, Your Honor, I will object.

     THE COURT: Your objection is overruled. The Court is
       going to allow the amendment as a clerical error, not a
       substantive error.



                                                                     16
4 RR 6. No physical interlineation of the indictment took place, and

the State has been unable to find in the trial court’s file any other

document purporting to be an amended indictment. There was no

discussion on the record of how the amendment would be carried out.

Later that same day, the jury was impaneled and sworn. 4 RR 120.

     After the trial court stated it would allow the amendment,

Appellant was arraigned outside the jury’s presence and indicated he

would enter a plea of not true to the jurisdictional priors. 4 RR 9.

Then before the jury, the defense changed course and pleaded true to

Appellant’s two jurisdictional priors: the one from 2004 (paragraph 2)

and the one from 1994 (paragraph 3) that had allegedly been

amended. 4 RR 9, 129, 131. Then at trial, the State introduced the

judgment and sentence (J & S) from both convictions. 4 RR 134; SX 3

& 4. The J & S for the 1994 conviction reflected that Appellant’s theft

conviction had indeed occurred in the El Paso County Court at Law

#4, not #7, as alleged. SX 3.




                                                                     17
II. State’s motion to amend

A. The indictment was never amended, so there was no
   reversible error in granting the State’s motion to amend

     By statute, the State may amend the indictment before the day

on which trial begins, but once trial commences, the State may not

amend the indictment over the defense objection. Tex. Code Crim.

Proc. art. 28.10; State v. Murk, 815 S.W.2d 556, 558 (Tex. Crim. App.

1991). Case law governs the window of time in the middle, i.e.,

amendments on the day of, but before, trial actually begins. Sodipo v.

State, 815 S.W.2d 551, 555 (Tex. Crim. App. 1991) (op. on reh’g). As

with amendments after trial begins, amendments earlier in the day

(like before voir dire, but on the same day that the jury was later

impaneled and the first witness testified) are prohibited over a

defense objection. Sodipo, 815 S.W.2d at 556.

     While the trial court in the instant case may have been wrong to

grant the State’s motion to amend on the day trial began, no error

occurred in the instant case because the indictment was not actually

amended. The Code of Criminal Procedure provides that “[a]ll

amendments of an indictment . . . shall be made with the leave of the

court and under its direction.” Tex. Code Crim. Proc. art. 28.11


                                                                   18
(emphasis added). Because of Article 28.11, when the State wishes to

amend a pleading, it must first get the trial court’s permission. Perez

v. State, 429 S.W.3d 639, 642 (Tex. Crim. App. 2014). The motion is

not the amendment, but only a request. Id. Further, the ruling on the

motion is only the court’s leave to amend, and is not itself the

amendment. Id. Here, the trial court gave its leave to amend, but no

actual amendment took place.

     The rules of what is necessary to amend an indictment have

relaxed in recent years. Formerly, the only way to amend the

indictment was physical interlineation on the face of the indictment.

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

in part by Riney v. State, 28 S.W.3d 561, 566 (Tex. Crim. App. 2000).

Now other methods are possible, such as having the trial court read

the changes into the record and incorporate an amended photocopy of

the indictment into the clerk’s file, as was done in Riney. Riney, 28

S.W.3d at 563. In Perez, the State filed a written motion to amend

and attached an exhibit that set out the amended language. Perez,

429 S.W.3d at 640-41. The parties and the judge then agreed on the

record that the exhibit (which became part of the appellate record)



                                                                    19
would replace the substantive parts of the indictment, without the

need for pasting these changes over the original indictment. Id. This,

too, was held sufficient. Id.

     Despite the liberalization of the requirements for amendment,

the Court of Criminal Appeals has never abandoned the concept that

“[n]either the motion [to amend] itself 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, 28 S.W.3d at 565 (quoting Ward v. State, 829

S.W.2d at 793). Consequently, something more must be done beyond

the granting of the trial court’s permission to amend.

     Here, the trial court stated that it would allow the amendment,

but there is no evidence of any second step—that the indictment was

interlineated or that any written document intended to be treated as

the amended indictment was created and filed in the records of the

case. Unlike in Riney and Perez, there was no discussion on the record

of the mechanics of how the amendment would be effectuated. See

Riney, 28 S.W.3d at 566; Perez, 429 S.W.3d at 641. The trial court in

the instant case never “directed” how the amendment would take



                                                                   20
place, as required by Article 28.11. And there was nothing in writing

other than the original indictment to constitute the live pleading in

the case. See Puente v. State, 320 S.W.3d 352, 358 (Tex. Crim. App.

2010) (finding that an alteration to a judicial confession, even when it

is reduced to writing, is decidedly not a charging instrument, and

thus could not constitute amendment of the indictment); see also

Wilson v. State, 520 S.W.2d 377, 379 (Tex. Crim. App. 1975)

(explaining that “[i]t is, of course, not sufficient to say that the

accused knew with what offense he was charged, but the inquiry

must be whether the charge in writing furnished that information in

plain and intelligible language”); Serna v. State, 69 S.W.3d 377, 380

(Tex. App.—El Paso 2002, no pet.) (requiring more than that the

amendment be memorialized in writing somewhere within the record

to constitute a live pleading).

     Because the indictment was never effectively amended, no

reversible error exists from the granting of the State’s motion to

amend the indictment. See Tata v. State, 446 S.W.3d 456, 462 (Tex.

App.—Houston [1st Dist.] 2014), petitions for discretionary review

filed by both State and defense in PD-1195-14); Duncan v. State, 850



                                                                     21
S.W.2d 813, 815 (Tex. App.—Houston [14th Dist.] 1993, no pet.);

McFarland v. State, 834 S.W.2d 481, 484 (Tex. App.—Corpus Christi

1992, no pet.).

B. Even if the amendment was effective, any error in
   permitting the amendment was harmless

     As numerous courts (including the Dallas Court of Appeals)

have recognized, error in permitting an untimely amendment of the

indictment over a defense objection can be harmless error. See Wright

v. State, 28 S.W.3d 526, 532 (Tex. Crim. App. 2000) (holding that

attempted amendment of offense date in indictment could not have

harmed defendant when “on or about” language already put

defendant on notice of approximate date), superseded on other

grounds by Code Crim. Proc. art. 37.071; James v. State, 425 S.W.3d

492, 500 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d) (finding

harmless    the   error   in   allowing   amendment    of   punishment

enhancement); Dukes v. State, 239 S.W.3d 444, 447-78 (Tex. App.—

Dallas 2007, pet. ref’d) (holding that improper amendment regarding

victim’s address on day of trial was harmless error). Under Rule of

Appellate Procedure 44.2(b), any statutory “error, defect, irregularity,




                                                                     22
or variance that does not affect substantial rights must be

disregarded.” Tex. R. App. P. 44.2(b).

     Here, even if the amendment was effective, it did not affect

Appellant’s substantial rights to permit the late amendment. As is

shown in the next section, Appellant was not entitled to an acquittal,

had the indictment been left uncorrected. And Appellant would have

been able to identify the prior conviction regardless of whether it was

alleged as County Court Number 4 or Number 7. After all, the

indictment correctly alleged several descriptors for Appellant’s 1994

prior conviction, including the date of conviction, the name Appellant

was convicted under, the title of the offense, and the county of

conviction. Compare CR 11 with SX 3. And all of these allegations

conformed to the State’s proof admitted at trial. SX 3. Appellant has

never argued that he was surprised by the amendment or that he was

unable to mount a defense because of the late amendment.

Consequently, any error was harmless.

III. Sufficiency of the jurisdictional prior in light of the
     variance between pleading and proof

     When it comes to punishment enhancements, prior convictions

are not required to be alleged with the same particularity that must


                                                                    23
be used in charging on the primary offense. Freda v. State, 704

S.W.2d 41, 42 (Tex. Crim. App. 1986). The accused is entitled to a

description of the judgment of former conviction that will enable him

to find the record and prepare for a trial on the question of whether

he is the convictee named in the judgment. Villescas v. State, 189

S.W.3d 290, 293 (Tex. Crim. App. 2006) (citing Hollins v. State, 571

S.W.2d 873, 875 (Tex. Crim. App. 1978)). Where a variance is shown

in the enhancing portion of an indictment, it does not automatically

render the evidence insufficient; the accused is instead required to

show that the variance resulted in surprise, to his or her prejudice.

Freda, 704 S.W.2d at 43. Variances between an enhancement

allegation and the proof in regard to cause numbers, courts, and dates

of conviction have all been held to be immaterial. Id. at 42–43; Arce v.

State, 552 S.W.2d 163, 164 (Tex. Crim. App. 1977) (finding

enhancement paragraph provided adequate notice to enable the

accused to locate the prior felony convictions alleged where the State

alleged the cause number, county, and date of conviction, but omitted

the designation of the court in which Arce was convicted).




                                                                     24
     The law concerning punishment enhancements has been

extended to jurisdictional priors as well. In Valenti v. State, the Fort

Worth Court of Appeals held that a variance between the indictment

and proof concerning the date of conviction for a jurisdictional prior

alleged for felony DWI was not material where the defendant was

neither surprised by the variance nor misled to his prejudice. Valenti

v. State, 49 S.W.3d 594, 599 (Tex. App.—Fort Worth 2001, no pet.).

This Court reached a similar result in an unpublished decision.

Brown v. State, No. 06-11-00127-CR, 2012 WL 899225, at *2 (Tex.

App.—Texarkana Mar. 16, 2012, pet. ref’d) (not designated for

publication) (finding no material variance when one of the prior theft

conviction allegations alleged the wrong court of conviction).

     Here, there is no indication of any harm from the variance.

Regardless of which county court at law had convicted him, Appellant

was still conceding the larger point that he had two prior convictions.

As argued above, there were sufficient other descriptors of

Appellant’s 1994 conviction in the indictment to enable him to discern

whether he was the person named in the judgment.




                                                                     25
      Appellant has not complained that he was surprised or

prejudiced by the discrepancy between the original indictment

allegations and the proof at trial. Indeed, at trial, he had no objection

when the State admitted evidence of the two priors.1 4 RR 131, 134;

SX 3 & 4. And in closing argument, the defense again conceded that

he had two prior convictions for theft, arguing that one of the difficult

issues for the jury was that they were “already aware of two prior

convictions for theft.” 5 RR 17. Without a showing of any prejudice,

the variance is immaterial, and these two issues should be overruled.




  Appellant suggests his plea of true to the amended indictment is insufficient to
1

support the element of two prior theft convictions. See App. Brief at 21. But even
if his plea did not make it clear which allegation he was admitting (the amended
or unamended indictment allegation), the State still introduced proof of the two
prior convictions in the form of a judgment and sentence for each conviction, and
this evidence is sufficient proof along with his admission to two prior thefts to
support the prior convictions element. See SX 3 & 4. To the extent he uses the
judgment in the instant case as evidence that he did not plead true to both prior
theft convictions, that argument must fail as the oral pronouncement controls
over the written judgment. Ex parte Huskins, 176 S.W.3d 818, 820 (Tex. Crim.
App. 2005).




                                                                               26
                             Issue Four
     (Sufficiency to prove punishment enhancement paragraphs)

        This Court should not reach Appellant’s complaint
        concerning the sufficiency of the State’s proof of prior
        convictions alleged for punishment enhancement
        because Appellant waived his right to appeal
        punishment issues in exchange for an agreed 5-year
        sentence. In any case, there was sufficient proof of
        two sequential non-theft felony convictions to
        support enhancement to a second-degree felony.

I. Appellant knowingly waived his right to appeal sentencing
   issues

     After the jury verdict of guilty, the parties entered an

agreement, which the trial court followed, that Appellant receive a 5-

year sentence, and among the many rights Appellant was giving up

as part of his agreement was a waiver of the right to appeal. SX 9; CR

75. Specifically, that waiver meant that Appellant “will not have the

right to appeal anything about the punishment phase.” 5 RR 37-38.

During the plea proceeding, both Appellant and the prosecutor agreed

on the record that the trial court’s explanation of the waiver of the

right to appeal punishment issues was correct. 5 RR 38.

     A defendant may waive any rights secured him by law. Tex.

Code Crim. Proc. art. 1.14(a). A valid waiver of the right to appeal,

whether negotiated or non-negotiated, will prevent a defendant from


                                                                   27
appealing without the consent of the trial court. See Monreal v. State,

99 S.W.3d 615, 622 (Tex. Crim. App. 2003); Faulkner v. State, 402

S.W.3d 507, 509 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd)

(finding post-guilt-phase waiver of entire appeal was effective,

depriving court of appeals of jurisdiction). When a defendant waives

his right to appeal after conviction but before sentencing in exchange

for the prosecutor’s promise to recommend a particular sentence that

he then receives, it is not unfair to expect him to live with the

consequences of his waiver. Blanco v. State, 18 S.W.3d 218, 219-20

(Tex. Crim. App. 2000). Appellate courts will not entertain an attack

on the waiver of the right to appeal in the absence of any allegations

or proof that the waiver of the right of appeal was coerced or

involuntary and where there is nothing in the record suggesting

coercion or involuntariness. Ex parte Tabor, 565 S.W.2d 945, 946

(Tex. Crim. App. 1978); Perez v. State, 885 S.W.2d 568, 570 (Tex.

App.—El Paso 1994, no pet.).

     Here, Appellant acknowledges that he waived his right to

appeal any punishment issues and does not contend that his waiver

was in any way ineffective. App. Brief at 22-24. Moreover, he did not



                                                                    28
get the trial court’s permission to appeal this issue, as evidenced by

the trial court’s certification of the defendant’s right to appeal, which

states he has the right of appeal, “except for punishment.” CR 77.

Because Appellant, like the defendant in Blanco, was fully aware of

the likely consequences when he waived his right to appeal, he should

not be able to renege on his waiver of punishment issues. See 18

S.W.3d at 220. Consequently, this Court should not address this

issue. See Faris v. State, No. 06-12-00019-CR, 2012 WL 4459598, at

*3 (Tex. App.—Texarkana Sept. 26, 2012, pet. ref'd) (not designated

for publication) (declining to consider guilt-phase issues on record

that defendant knowingly and willingly waived his right to appeal

guilty verdict after consideration given by the State).

     Although Appellant has made repeated reference in this issue to

the words “sentence” and “illegal,” he fails to cite any authority that a

waiver of the right to appeal will be disregarded if the defendant

contends his sentence is illegal. There is some indication that even a

complaint about an illegal sentence is not appropriate for an

appellate court to reach when appeal has been waived. See Ex parte

Garza, 192 S.W.3d 658, 661 (Tex. App.—Corpus Christi 2006, no pet.)



                                                                      29
(stating in case involving potentially illegal sentence from alleged

improper cumulation order that because of waiver of right to appeal,

defendant had no opportunity to seek relief on direct appeal).

      In any case, Appellant does not go as far as to contend his

sentence was illegal; he only suggests that “if” his sentence is illegal,

then it is unauthorized and should be reversed.2 App. Brief at 22, 24.

Instead of complaining of an illegal sentence, Appellant’s issue is

that, perhaps, the State failed to sufficiently prove the non-theft

priors alleged for punishment enhancement. See App. Brief at 24

(stating “it is not clear from the record whether . . . [the non-theft

prior convictions alleged for punishment enhancement] were properly

presented, pleaded or proved.”). Because Appellant waived his right

to appeal this issue in exchange for his 5-year sentence, this Court

should not address this point of error.




2 Appellant’s sentence is not illegal since he bargained for a 5-year sentence on an
enhanced state-jail felony theft. CR 73-74. Even if Appellant was not expressly
asked to enter a plea of true to the punishment enhancement allegations and the
plea paperwork referenced Appellant’s plea of true to enhancements in the
“charging instrument” rather than the notice of enhancement (CR 75), the
punishment proceeding was uncontested. 5 RR 35-43. And Appellant reaped the
benefit of the State’s agreement to the 5-year sentence.

                                                                                 30
II. Sufficient evidence supports enhancement to a second-
    degree felony

       Even if the Court were to reach this issue, sufficient evidence

supports the enhancement of the offense to a second-degree felony. A

theft offense is a state-jail felony if the value of the property stolen is

less than $1,500 and the defendant has two prior theft convictions.

Tex. Penal Code § 31.03(e)(4)(D). But while a state-jail felony may

ordinarily be enhanced to a second-degree felony (under the habitual

offender statutes in § 12.425(b)) if the defendant has two prior

sequential felony convictions, a defendant’s prior theft convictions—

regardless of their number or degree—cannot serve to enhance the

punishment for a subsequent theft under $1500 beyond that of a

state-jail felony. Rawlings v. State, 602 S.W.2d 268, 269-70 (Tex.

Crim. App. 1980) (holding that in predecessor to § 31.03(e)(4)(D), the

special theft enhancement provision for “any grade of theft” controls

over    the   general   enhancement      provisions   in   Chapter    12).

Consequently, the punishment for state-jail-felony theft of property

less than $1500 may be further enhanced under Chapter 12 only if

the prior felony convictions used for that purpose are for an offense

other than theft. Id.


                                                                        31
     In Foster, which was decided the same day as Rawlings, the

Court of Criminal Appeals implicitly held that burglary is a non-theft

felony that can be used to further enhance a felony theft under

Chapter 12. Foster v. State, 603 S.W.2d 879, 880 (Tex. Crim. App.

1980). The Dallas Court of Appeals has since explicitly held that

burglary is a non-theft felony, reasoning that burglary requires only

an intent to commit theft and that theft requires an actual, completed

unlawful appropriation of property. Chambers v. State, 736 S.W.2d

192, 196 (Tex. App.—Dallas 1987, no pet.); see also Smallwood v.

State, 827 S.W.2d 34, 37 (Tex. App.—Houston [1st Dist.] 1992, pet.

ref'd) (finding burglary of a building is a non-theft offense).

     Here, the evidence in the plea hearing at punishment was

sufficient to establish that Appellant had two prior sequential non-

theft felonies. That evidence consisted of Appellant’s admission to two

prior convictions in particular and the State’s evidence of the

judgment and sentence for those two convictions. In particular,

Appellant agreed under oath that he had convictions for:

      a 2004 delivery of a controlled substance;
      a 1983 burglary of a motor vehicle with intent to
       commit theft, for which he received a 4-year
       sentence.

                                                                     32
5 RR 41-43. And the trial court admitted the judgment and sentence

of Appellant’s convictions for:

      an April 6, 2006 Dallas County conviction for
       second-degree felony delivery of a controlled
       substance, committed in 2004 (SX 5 at 6 RR 14); and
      a 1983 Harris County conviction for burglary of a
       motor vehicle with intent to commit theft, for which
       he received a 4-year sentence (SX 7 at 6 RR 33).

These convictions corresponded to the State’s first and fifth numbered

enhancement allegations in its Notice of Intent to Sentence

Defendant Under the Habitual Offender Provision. CR 56, 58.

     Although Appellant argues that burglary of a motor vehicle

with intent to commit theft is “tantamount to a ‘theft’ conviction,”

(App. Brief at 23), both offenses have elements that are not contained

in the other. As with burglary, burglary of a motor vehicle with intent

to commit theft requires no completed theft or appropriation of

property. Tex. Penal Code § 30.04. And theft requires no entry into a

vehicle. Tex. Penal Code § 31.03(a). Consequently, burglary of a

motor vehicle is a non-theft offense that can be used to enhance a

state-jail felony theft to a second-degree offense. Lackey v. State, 881

S.W.2d 418, 419 (Tex. App.—Dallas 1994, pet. ref'd) (suggesting in




                                                                     33
dicta that burglary of a motor vehicle is a non-theft conviction,

though defendant had not alleged it was not).

     Even if burglary of a motor vehicle constitutes a theft-conviction

for purposes of § 31.03(e)(4)(D), there were other judgments and

sentences admitted in the hearing that would qualify as non-theft

felony convictions that were final before Appellant committed the

2004 delivery of a controlled substance. State’s Exhibit 6 shows

Appellant was convicted of second-degree possession of cocaine in

1994 and of burglary in 1988. SX 6 at 6 RR 25, 27. Both of these

offenses were in the State’s notice of enhancement, and either could

have been used along with the 2004 delivery of a controlled substance

prior to enhance Appellant to a second-degree felony. See Foster, 603

S.W.2d at 880.

     Either because the evidence supported the enhancement of the

state-jail felony theft to a second-degree offense or because Appellant

waived consideration of this issue on appeal, this issue should be

overruled.




                                                                    34
                              Issue Five
            (Details of Appellant’s prior theft convictions)

        It was not error to inform the jury of the details of
        Appellant’s prior theft convictions either through the
        State’s evidence of those prior convictions or in the
        jury charge. Appellant pleaded true to the prior theft
        convictions, which had the effect of removing that
        element from the jury’s consideration. But because
        Appellant did not ask the State to forgo admitting its
        evidence of his priors in exchange for his plea of true,
        he forfeited any complaint about the admission of
        that evidence. Any error in including the details of
        the prior offense in the charge was harmless since
        the jury properly heard the same facts when the
        State read the indictment.

I. The law involving jurisdictional priors

     Article 36.01(a)(1) of the Code of Criminal Procedure indicates

that the State may read indictment allegations of prior convictions

alleged for jurisdiction at the guilt phase of trial. Tex. Code Crim.

Proc. art. 36.01(a)(1). Following the Supreme Court’s decision in Old

Chief v. United States, the Court of Criminal Appeals held that while

the State may read the minimum number of prior conviction

allegations in the indictment, if a defendant offers to stipulate to the

two prior DWI convictions, the State may not offer proof of the prior

convictions beyond the stipulation. Old Chief v. United States, 519



                                                                     35
U.S. 172, 192 (1997); Tamez v. State, 11 S.W.3d 198, 202 (Tex. Crim.

App. 2000). The offer to stipulate is one that the State may not refuse.

Martin v. State, 200 S.W.3d 635, 638 (Tex. Crim. App. 2006). This

principle has been applied to cases involving multiple theft

convictions. See Marbella v. State, No. 646-00, 2003 WL 1845140, at

*1 (Tex. Crim. App. Apr. 9, 2003) (not designated for publication); but

see Minnamon v. State, 988 S.W.2d 408, 410 (Tex. App.—Houston [1st

Dist.] 1999, no pet.) (finding Old Chief did not apply to third-offender

theft).

      In this single issue, Appellant complains about the admission of

the details of his prior theft convictions—both in the evidence the

State admitted (SX 3 & 4) and the mention in the jury charge of the

date, court, county of conviction, cause number, and the like

regarding his prior convictions. Because Appellant pleaded true3 to

the prior theft convictions alleged in the indictment, the jurisdictional

element was no longer in contention. But as is explained below,


3 The trial court asked Appellant how he pled to the jurisdictional paragraphs in
the indictment, and Appellant stated in open court before the jury, “1994 is true,
2004 is true.” 4 RR 131. The cases following Tamez appear to involve the
situation of a general plea of not guilty to the offense, rather than a plea of true
to an element at the guilt phase. As a result, the judicial admission in the Tamez
line of cases came in the form of a written stipulation of evidence.

                                                                                 36
Appellant did not take the steps necessary to prevent the State from

admitting evidence of his priors.

     The State will address Appellant’s evidentiary issue first and

then his jury charge issue.

II. Admission of other evidence of jurisdictional priors

     Appellant forfeited his complaint about the admission of

evidence of the jurisdictional prior convictions by failing to object and

by failing to condition his plea of true on the State forgoing any other

evidence of his prior theft convictions.

     To preserve error for appellate review, a party must object at

trial and obtain an adverse ruling. Tex. R. App. P. 33.1(a). The Court

of Criminal Appeals has consistently held that the failure to object in

a timely and specific manner during trial forfeits complaints about

the admissibility of evidence. Fuller v. State, 253 S.W.3d 220, 232

(Tex. Crim. App. 2008).

     Here, Appellant stated he had no objection when the State

offered into evidence the public records showing his two prior

convictions (SX 3 & 4). 4 RR 134. By failing to object to their




                                                                      37
admission, Appellant forfeited his complaint that the judgments of

convictions should not have been admitted.

     While Appellant cites Tamez and its progeny in support of his

argument that the details of his prior convictions should not have

been admitted into evidence in light of his plea, those cases are

inapplicable without the defense actually proposing or offering to

trade a stipulation for the State’s other evidence of jurisdictional

priors. “[I]n order to benefit from Old Chief, a defendant with a prior

felony conviction first must remember to offer to stipulate to the fact

of his prior conviction at trial.” Amina Quargnali-Linsley, Evidence

Law-Boundaries, Balancing, and Prior Felony Convictions: Federal

Rule of Evidence Rule 403 After United States v. Old Chief, 28 N.M.L.

Rev. 583, 604 (1998) (emphasis added). It is when the accused “offers

to stipulate” to the jurisdictional prior convictions that the probative

value of evidence of those convictions is substantially outweighed by

the danger of unfair prejudice. See Robles v. State, 85 S.W.3d 211, 213

(Tex. Crim. App. 2002). In the absence of a stipulation to evidence,

judgments from prior convictions are relevant to show the existence

of those prior convictions. Id. at 212. It is thus incumbent on



                                                                     38
Appellant to extend an offer—to make it clear that any concession to

the jurisdictional element is contingent—in order to preclude

admission of judgments from prior convictions. See id. As the

Fourteenth Court of Appeals explained in an unpublished decision:

     Before the rule in Tamez will foreclose the prosecution
     from introducing evidence of a defendant’s prior DWI
     convictions, the defendant must actually offer to stipulate
     to the relevant prior convictions.

Nall v. State, 14-06-00345-CR, 2007 WL 2481171, at *4 (Tex. App.—

Houston [14th Dist.] Sept. 4, 2007, no pet.) (not designated for

publication) (holding that defendant’s failure to stipulate to the

jurisdictional prior convictions takes the defendant’s case out of the

rule in Tamez); see also Dunn v. State, 08-02-00516-CR, 2004 WL

1858352, at *6 (Tex. App.—El Paso Aug. 19, 2004, pet. ref'd) (not

designated for publication) (finding defendant’s failure to object to

admission of evidence of priors waived error despite contemplation

and then withdrawal of stipulation by the defense).

     In the instant case, Appellant pleaded true to the two

jurisdictional prior offenses, but there is no discussion in the record of

any offer to enter this plea in exchange for the State forgoing any

other evidence of his prior convictions. From all indications,


                                                                       39
Appellant’s plea of true was one-sided and not conditioned on the

State giving up any of its proof. 4 RR 129-30.

     Moreover, the stipulation of evidence contemplated in Tamez

and its progeny is one in written form that the State could introduce

into evidence. Hollen v. State, 117 S.W.3d 798, 802 (Tex. Crim. App.

2003). There is no indication in the record of any written stipulation

that the State would have been able to introduce in lieu of its own

evidence of Appellant’s prior convictions.

     Because Appellant never conditioned his plea of true on the

State withholding its own evidence of his prior theft convictions and

because he never objected when the State offered that other evidence,

he has forfeited his complaint that the State’s exhibits informed the

jury of some of the particulars of his prior theft convictions.

III. Details of prior thefts in the jury charge

     Like Appellant’s evidentiary issue, Appellant’s complaint about

the jury charge is also without merit. Because the jury charge tracked

the language of the indictment, at most the charge informed the jury

of the same details about his prior convictions that they already




                                                                    40
heard during the reading of the indictment. The jury charge

instructed the jury:

     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)
     upon 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 upon 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.

CR 81-82. Although both the jury charge and the prosecutor in closing

argument used the term “stipulated,” it was used in the sense that

Appellant was agreeing or conceding the truth of the prior




                                                                        41
convictions. Again, no evidence in the record indicates Appellant’s

plea of true was conditional.

     While Appellant did not seek to prevent the State from

introducing other evidence of his priors, his plea of true nevertheless

had a legal effect: it withdrew the jurisdictional element from

contention. Ordinarily, the State has the burden of proving a prior

conviction alleged for enhancement, but where a defendant pleads

true to the prior conviction, he removes this burden from the State.

Harvey v. State, 611 S.W.2d 108, 111 (Tex. Crim. App. 1981). Judicial

admissions are formal concessions in the pleadings in the case or

stipulations by a party or counsel that have the effect of withdrawing

a fact from issue. Bryant v. State, 187 S.W.3d 397, 400 (Tex. Crim.

App. 2005) (citing 2 John W. Strong, et al., McCormick on Evidence §

255 (5th ed.1999)); see also Woods v. State, 398 S.W.3d 396, 400 (Tex.

App.—Texarkana 2013, pet. ref’d) (finding oral stipulation in open

court that defendant was admitting two jurisdictional priors was

sufficient to sustain conviction in plea proceeding despite lack of

formal judgment proving prior conviction). As the courts of appeals

have held in the context of punishment enhancements, when the



                                                                     42
defendant pleads true to an enhancement allegation, the trial court

may expressly instruct the jury to find the enhancement allegations

true. Chandler v. State, 21 S.W.3d 922, 923 (Tex. App.—Houston

[14th Dist.] 2000, no pet.); Urbano v. State, 808 S.W.2d 519, 523 (Tex.

App.—Houston [14th Dist.] 1991, no pet.); Gonzalez v. State, No. 13-

05-115-CR, 2006 WL 488681, at *1 (Tex. App.—Corpus Christi Mar.

2, 2006, no pet.) (not designated for publication); Webb v. State, 05-00-

02104-CR, 2002 WL 851730, at *4 (Tex. App.—Dallas May 6, 2002, no

pet.) (not designated for publication).

     Here, Appellant does not contend that it was improper to

instruct the jury to find true the element of two prior theft

convictions. Indeed, he had no objection to the charge at trial. 5 RR 9.

But he complains that the jury charge should not have included the

details of his prior theft convictions. App. Brief at 24-27.

     While not exactly on all fours, it is helpful to consider case law

where there was a formal stipulation in exchange for the State

forgoing other evidence of jurisdictional prior convictions. Appellant

cites Freeman for the proposition that a jury instruction regarding

the two prior DWI convictions need not refer to particulars of those



                                                                      43
two priors. Freeman v. State, 413 S.W.3d 198, 208 (Tex. App.—

Houston [14th Dist.] 2013, pet. ref’d). While this is true enough,

Freeman does not prohibit the charge from referring to the

particulars. More importantly, Martin (which Freeman relies on)

expressly approves of the kind of jury instruction given in this case:

     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.

Martin, 200 S.W.3d at 639. Because the jury charge in the instant

case complied with one of the instructions sanctioned by the Court of

Criminal Appeals in Martin, it was not erroneous.

     Even if it was error to include all the particulars of the court

and date of conviction in the jury charge, this could not have resulted

in egregious harm. Where there was no objection to the complained-of

charge error at trial, as there was not here, a defendant can obtain a

reversal only if egregious harm resulted from the error. Taylor v.

State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011) (citing Almanza v.

State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g)). The



                                                                         44
jury would have heard this same information when the State read the

indictment and again when the jury considered the State’s Exhibits

(SX 3 & 4). Further mention in the charge of these largely incidental

details would have been insignificant at best.

     This issue should be overruled.




                                                                   45
                               Prayer

     Appellant’s trial was without prejudicial error. The State prays

that this Court will affirm Appellant’s conviction and sentence.


                                        Respectfully submitted,


                                        Greg Willis
                                        Criminal District Attorney
                                        Collin County, Texas

                                        John R. Rolater, Jr.
                                        Asst. Criminal District Attorney
                                        Chief of the Appellate Division

                                        /s/ Emily Johnson-Liu
                                        Emily Johnson-Liu
                                        Asst. Criminal District Attorney
                                        2100 Bloomdale Rd., Suite 200
                                        McKinney, TX 75071
                                        State Bar No. 24032600
                                        (972) 548-4331
                                        FAX (214) 491-4860
                                        ejohnson-liu@co.collin.tx.us




                                                                     46
                        Certificate of Service

     The State has e-served counsel for Appellant, the Honorable

Randell Johnson, through the eFileTexas.gov filing system and sent a

courtesy copy by e-mail to wrjlaw@aol.com on this, the 16th day of

January 2015.

                                 /s/ Emily Johnson-Liu
                                 Assistant Criminal District Attorney


                     Certificate of Compliance

     This brief complies with the word limitations in Texas Rule of

Appellate Procedure 9.4(i)(2). In reliance on the word count of the

computer program used to prepare this brief, the undersigned attorney

certifies that this brief contains 8,777 words, exclusive of the sections

of the brief exempted by Rule 9.4(i)(1).

                                 /s/ Emily Johnson-Liu
                                 Assistant Criminal District Attorney




                                                                     47
