                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-08-436-CR


DONNY GENE LAMBERT                                                     APPELLANT

                                            V.

THE STATE OF TEXAS                                                           STATE

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            FROM THE 235TH DISTRICT COURT OF COOKE COUNTY

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                          MEMORANDUM OPINION 1

                                        ------------

      A jury convicted Appellant Donny Gene Lambert of burglary of a building and,

after he pled not true to the enhancement allegations, assessed his punishment at

twenty years’ confinement. The trial court sentenced him accordingly, stacking his

sentence to a prior sentence. In three points, Appellant challenges the admission

of his confession, the factual sufficiency of the evidence, and the cumulation of his

sentences. Because we hold that the trial court did not err and that the evidence is



      1
           See Tex. R. App. P. 47.4.
factually sufficient to support Appellant’s conviction, we affirm the trial court’s

judgment.

Appellant’s Confession

      In his second point, while Appellant concedes that his confession meets the

technical requirements for admissibility, he argues that the trial court nevertheless

abused its discretion by admitting it, violating his right to due process, because “the

recent influence of alcohol” made the statement “incompetent for the jury to

consider.” To preserve a complaint for our review, a party must have presented to

the trial court a timely request, objection, or motion that states the specific grounds

for the desired ruling if they are not apparent from the context of the request,

objection, or motion. 2 Appellant did not raise this objection below. Accordingly, we

overrule this point as forfeited.

Factual Sufficiency

      In his third point, Appellant contends that the evidence is factually insufficient

to support his conviction. He specifically argues that the evidence does not establish

his intent to commit theft.    The indictment alleges that Appellant, “without the

effective consent of the owner, Curtis Graves, enter[ed] a building not then open to

the public, with intent to commit theft and did commit theft by unlawfully appropriating

an Arctic four-wheeler.” This allegation tracks the statute proscribing burglary of a


      2
        Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983 S.W .2d 249, 265 (Tex.
Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999).

                                           2
building, section 30.02(a)(1) of the penal code. 3 A person commits theft if he

“unlawfully appropriates property with intent to deprive the owner of property.” 4 A

person acts with intent “with respect to the nature of his conduct . . . when it is his

conscious objective or desire to engage in the conduct.” 5 In a burglary prosecution,

the specific intent to commit theft may be inferred. 6

      Curtis Graves testified that on the night in question, a truck that “kept driving

by several times” awakened him. He noticed the four-wheeler lights come on in his

barn. The barn was not open to the public. He did not give anyone permission to

enter his barn. W hen he went to the barn, he discovered that his four-wheeler had

been taken without his permission. He called 911.

      Meanwhile, a pickup was in a ditch near Mr. Graves’s home. W hen the

sheriff’s deputies questioned the woman at the scene, Deanna Burns, she told them

that she had let her boyfriend, Appellant, out “there earlier not too much long before

[the police] had found her there and left because she thought he was up to no good.”

The deputies concluded that she had been speeding to get away from the scene of

the burglary and had then wrecked the pickup. Burns told the deputies where


      3
           Tex. Penal Code Ann. § 30.02(a)(1) (Vernon 2003).
      4
           Id. § 31.03(a).
      5
           Id. § 6.03(a).
      6
        McGee v. State, 774 S.W .2d 229, 234 (Tex. Crim. App. 1989), cert.
denied, 494 U.S. 1060 (1990); Simmons v. State, 590 S.W .2d 137, 138 (Tex. Crim.
App. [Panel Op.] 1979).

                                          3
Appellant lived. At Appellant’s house, deputies discovered the four-wheeler, with its

engine still warm, sitting in front of the front door. Appellant was asleep. After he

awoke, Appellant told Sergeant Emerson Hart, who identified Appellant at trial, that

“he had some vehicle problems and stopped at a residence and went into

somebody’s barn and took a four-wheeler, which he intended to return.” Appellant

was not sure where exactly he had taken the four-wheeler from, and he did not know

who owned it. The police arrested Appellant and took him to jail, where he gave a

recorded statement.

      In his recorded statement, 7 Appellant stated that his truck had stopped, so he

had walked from his truck, looking for help. He stopped at Graves’s barn. Appellant

stated that the lights were on and that the doors were open. He called out for

someone, but no one answered. He stated that he took the four-wheeler because

he was cold and tired and wanted to get home and get someone to help him come

back for his stalled truck and girlfriend. He also stated that he had only borrowed the

four-wheeler and had intended to return it the next day. He stated that he knew that

he had done wrong.



      7
         Because neither party requested that the audio recording of Appellant’s
statement be filed in this court, this court on its own motion ordered that the original
exhibit be filed in this court. The audiotape we received is broken, and we are
unable to review it. However, at trial, Appellant’s recorded statement was played for
the jury and recorded by the court reporter in the reporter’s record. No one has
challenged the authenticity of the court reporter’s record. Accordingly, we rely on
that unchallenged printed version of Appellant’s statement found in the reporter’s
record.

                                           4
      Graves’s testimony indicated that several houses separated the wrecked

pickup from Graves’s home.

      Applying the appropriate standard of review, 8 we hold that the evidence is

factually sufficient to satisfy all the elements of the burglary with which Appellant was

charged and convicted, including the specific intent to commit theft. W e overrule

Appellant’s third point.

Stacking Order

      In his first point, Appellant contends that the trial court abused its discretion

by ordering that he serve the sentence in this case consecutively to rather than

concurrently with a prior sentence and by basing that decision on evidence that

should have been excluded. He also complains that his right to due process was

violated because the State did not file its motion to stack until after he had rejected

plea bargain offers and therefore he was not afforded the opportunity to consider this

factor in deciding whether to accept or reject a plea bargain.

      Appellant contends that State’s Exhibits 9, 10, 11, and 12, pen packets, were

admitted over his objections that they were not original documents and were

hearsay.   Our review of the record, however, shows no objection to hearsay;




      8
         See Steadman v. State, 280 S.W .3d 242, 246–47 (Tex. Crim. App. 2009);
Lancon v. State, 253 S.W .3d 699, 704 (Tex. Crim. App. 2008); Watson v. State, 204
S.W .3d 404, 414–15, 417 (Tex. Crim. App. 2006); Johnson v. State, 23 S.W .3d 1,
8–9, 12 (Tex. Crim. App. 2000) (all providing standard for reviewing the factual
sufficiency of the evidence).

                                           5
Appellant’s hearsay contention was therefore not preserved. 9 Appellant objected

that the affidavit attached to State’s Exhibit 9 was computer-generated and “not an

original document with an original signature by the person who’s supposed to keep

records for the Department of Criminal Justice.” He objected to State’s Exhibit 10

on the same grounds. Regarding State’s Exhibit 11, he objected that the affidavit

was “not self-proving because it ha[d]n’t . . . been signed by the person in charge of

records for the Department of Criminal Justice” and was a photocopy or computer

generated. Appellant raised the same objections to State’s Exhibit 12. Section 8(b)

of Article 42.09 of the code of criminal procedure provides,

      The Texas Department of Criminal Justice shall not take a defendant
      into custody under this article until the designated officer receives the
      documents required by Subsections (a) and (c) of this section. The
      designated officer shall certify under the seal of the department the
      documents received under Subsections (a) and (c) of this section. A
      document certified under this subsection is self-authenticated for the
      purposes of Rules 901 and 902, Texas Rules of Evidence. 10

All of the challenged exhibits are certified as required by the statute. They are

therefore self-authenticated. 11 Further, rule 1005 allows the contents of public

records to be proved by certified copies. 12 Accordingly, we hold that the trial court

did not abuse its discretion by admitting the four exhibits.


      9
           See Tex. R. App. P. 33.1(a)(1); Mosley, 983 S.W .2d at 265.
      10
            See Tex. Code Crim. Proc. Ann. art. 42.09, § 8(b) (Vernon Supp. 2009).
      11
            See id.
      12
            See Tex. R. Evid. 1005.

                                          6
          Article 42.08(a) of the code of criminal procedure provides the trial court with

discretion to order concurrent or consecutive sentences in cases like Appellant’s. 13

As Appellant concedes, the Texas Court of Criminal Appeals has held that

Apprendi14 and its progeny “do not . . . speak to a trial court’s authority to cumulate

sentences when that authority is provided by statute and is not based upon discrete

fact-finding, but is wholly discretionary.” 15 W e reject Appellant’s request that we re-

examine binding precedent.

          Finally, the record does not reveal that Appellant objected to the timing of the

filing of the State’s motion to cumulate below, and, in any event, this court has

already held that “[t]he plain language of the statutes does not require any prior

notice. And the statutes themselves provided appellant notice that . . . the trial court

was authorized to cumulate the sentences.” 16 Accordingly, we overrule Appellant’s

first point.




          13
                See Tex. Code Crim. Proc. Ann. art. 42.08(a) (Vernon Supp. 2009).
          14
                Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).
          15
                Barrow v. State, 207 S.W .3d 377, 379–80 (Tex. Crim. App. 2006).
          16
                Tyson v. State, 172 S.W .3d 172, 176 (Tex. App.—Fort W orth 2005, pet.
ref’d).

                                              7
Conclusion

      Having overruled Appellant’s three points, we affirm the trial court’s judgment.



                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 11, 2010




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