Opinion filed June 13, 2013




                                        In The


        Eleventh Court of Appeals
                                     __________

                                 No. 11-11-00184-CR
                                     __________

                    TODD WILLIAM BARR, Appellant

                                          V.

                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 42nd District Court

                                 Taylor County, Texas

                              Trial Court Cause No. 24291A


                      MEMORANDUM OPINION
      The jury convicted Todd William Barr of theft enhanced by two prior theft
offenses and assessed his punishment at confinement in the Institutional Division
of the Texas Department of Criminal Justice for a term of five years. See TEX.
PENAL CODE ANN. § 31.03(e)(4)(D) (West Supp. 2012). Appellant challenges his
conviction in a single issue. We affirm.
                                 Background Facts
      Charles Ariel Meyer was the loss prevention manager at Sears at the Mall of
Abilene. He observed a woman on the store’s security camera system filling a
shopping cart with men’s clothing. Meyer believed that the woman was going to
steal the items because she was not looking at the price tags on the items.       He
moved to a location near her inside the store while another loss prevention
employee continued to observe the woman over the security camera system. The
woman pushed the cart of merchandise through the first set of doors to the store
without paying for them. She then left the cart in the vestibule area separating the
two sets of doors to the store and entered a car parked next to the curb. Meyer then
observed Appellant exit the car, enter the outside set of doors, and retrieve the cart
of merchandise.
      Appellant took the cart out to the car and placed the merchandise in the car’s
trunk. Meyer confronted Appellant at this point and asked him to return to the
store. Appellant refused Meyer’s request and attempted to flee in the car. He was
unable to do so, however, because Meyer began pursuing him on foot. Meyer
eventually chased Appellant to an apartment complex at which time officers from
the Abilene Police Department arrived to detain Appellant. When the officers
returned to the store, neither the woman nor the car remained there. None of the
items taken from the store were recovered.
                                      Analysis
      In a single issue, Appellant contends that a variance exists between the
offense alleged in the indictment and the evidence offered at trial with respect to
the description of the stolen property. He initially frames his contention as a


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challenge to the sufficiency of the evidence. However, he also asserts jury charge
error and ineffective assistance of counsel within his single issue on appeal.
      We review a sufficiency of the evidence issue, regardless of whether it is
denominated as a legal or factual claim, under the standard of review set forth in
Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912
(Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—
Eastland 2010, pet. ref’d). Under the Jackson standard, we review all of the
evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). In conducting a sufficiency review, we defer to the jury’s
role as the sole judge of the witnesses’ credibility and the weight their testimony is
to be afforded.    Brooks, 323 S.W.3d at 899. This standard accounts for the
factfinder’s duty to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at
319; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). When the
record supports conflicting inferences, we presume that the factfinder resolved the
conflicts in favor of the prosecution and defer to that determination. Jackson, 443
U.S. at 326; Clayton, 235 S.W.3d at 778.
      A variance occurs whenever there is a discrepancy between the allegations
in the indictment and the proof offered at trial. Byrd v. State, 336 S.W.3d 242, 246
(Tex. Crim. App. 2011). In some instances, a variance between the pleading and
proof can render the evidence legally insufficient to support a conviction. See
Johnson v. State, 364 S.W.3d 292 (Tex. Crim. App. 2012).             A variance that
amounts to a failure to prove the offense alleged will not be tolerated. Id. at 295;
Byrd, 336 S.W.3d at 246–48.


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         The indictment charged Appellant with stealing the following described
property: “CLOTHING, the type and kind is unknown, of the value of less than
fifteen hundred dollars.”     Appellant argues that the evidence offered at trial
established that the type and kind of clothing taken was actually known. Meyer
testified that he and another employee reviewed the surveillance video in an effort
to determine what items were taken. He testified that they prepared a list of items
that they were “completely sure” Appellant and the lady took from the store.
Meyer stated that the value of the items on the list totaled $850 without tax. He
further testified that they “err[ed] on the side of caution” to omit items that they
“weren’t absolutely sure” about. Meyer concluded by saying that he and the other
employee were not certain of everything that Appellant and the lady took from the
store.
         The court in Roberson v. State, 741 S.W.2d 563 (Tex. App.—Texarkana
1987, no pet.), addressed an analogous situation. The indictment charged the
defendant with stealing “merchandise the exact name and number and kind of
which is unknown to the Grand Jury.” 741 S.W.2d at 565. The defendant asserted
that a variance existed because the evidence offered at trial showed that “cash,
beer, and ‘other stuff’ was stolen” thereby disproving that the alleged stolen
property was unknown. Id. (emphasis added). The court of appeals rejected this
contention on the basis that the evidence did not reveal the exact nature of the
“other stuff.” Id.
         The holding in Roberson is applicable to the facts in this case. As noted
previously, the items that Appellant took from the store were never recovered.
While Meyer was able to identify some items from the video, he was not able to
identify all of the items that Appellant took. Thus, the evidence offered at trial
established the State’s allegation that Appellant stole unknown items of clothing.
Accordingly, there was no variance because evidence offered at trial supported the
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property description alleged in the indictment. Furthermore, the evidence offered
at trial was not insufficient because it did not show an entirely different offense
than what was alleged in the charging instrument. See Johnson, 364 S.W.3d at
295; Byrd, 336 S.W.3d at 246–47.
      Relying upon his variance argument, Appellant also contends that the jury
charge was erroneous because it contained the same allegation that the stolen
clothing was unknown. He asserts that trial counsel was ineffective for failing to
object to this portion of the charge. Our determination that a variance did not
occur is dispositive of both of these contentions. The trial court did not err in
charging the jury with the same property description contained in the indictment
because it was supported by the evidence. Additionally, trial counsel was not
ineffective for failing to object to the property description. See Ex parte White,
160 S.W.3d 46, 53 (Tex. Crim. App. 2004) (Trial counsel is not ineffective for
failing to make futile objections.). Appellant’s sole issue is overruled.
                                   This Court’s Ruling
       We affirm the judgment of the trial court.




                                                     TERRY McCALL
                                                     JUSTICE


June 13, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




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