                                                                  ACCEPTED
                                                             06-14-00172-CR
                                                   SIXTH COURT OF APPEALS
                                                        TEXARKANA, TEXAS
                                                        2/12/2015 4:04:42 PM
                                                             DEBBIE AUTREY
                                                                      CLERK

    No. 06-14-00172-CR

    ___________________                      FILED IN
                                      6th COURT OF APPEALS
                                        TEXARKANA, TEXAS
   In the Court of Appeals            2/12/2015 4:04:42 PM
                                          DEBBIE AUTREY
    Sixth Judicial District                   Clerk


      Texarkana, Texas

    ___________________

Gerald Mac Lowrey, Appellant

               v.


  State of Texas, Appellee

    ___________________

  BRIEF OF APPELLANT

            Gary L. Waite
            State Bar No. 20667500
            104 Lamar Ave.
            Paris, Texas 75460
            Tel. (903) 785-0096
            Fax. (903) 785-0097
            garywaite@sbcglobal.net

                    ATTORNEY FOR APPELLANT


  Oral Argument Requested
Identity of Parties and Counsel

        T he following is a list of all parties and all counsel who have appeared in

this matter:

Appellant: Gerald Mac Lowrey

Attorney for Appellant in the trial court: G. Donald Haslam, 3140 Clark Lane,

Paris, Texas 75460

Attorney for Appellant on Appeal: Gary L. Waite, 104 Lamar Ave., Paris, Texas

75460

Appellee: The State of Texas

Attorney for Appellee in the trial court: Laurie Pollard, 119 N. Main, Paris, Texas

75460

Attorney for Appellee in the trial court: Denton Walker, 119 N. Main, Paris, Texas

75460

Elected District and County Attorney: Gary D. Young, 119 N. Main, P aris, T exas

75460




                                          ii
                                TABLE OF CONTENTS

List of Parties                                                                        ii

Table of Contents                                                                 iii-iv

Index of Authorities                                                                        v

Statement of the Case                                                                  1-2

Statement Regarding Oral Arument                                                            2

Issues Presented                                                                            2

Statement of Facts                                                                 3-13

Summary of Argument                                                               13-14

Argument and Authorities                                                                    15

Issue No. 1 (Restated)                                                            15-21

The defendant is entitled to compulsory process to secure the presence of

witnesses.

Issue No. 2 (Restated)                                                           15-21

The trial court abused it’s discretion in denying appellant’s motion for

continuance.

Issue No. 3 (Restated)                                                            21-25

The trial court erred in holding the evidence to be sufficient to sustain the

conviction because the evidence was insufficient to prove the identify of the victim

                                            iii
as alleged in the indictment.

Issue No. 4 (Restated)                                                               21-25

The trial court erred in holding the evidence sufficient to sustain the conviction

when there was a material and fatal variance between the name alleged and the

name proved.

 Prayer                                                                               25

Certificate of Service                                                               26

Certificate of Compliance with Rule 9.4 (I)                                          26




                                            iv
Index of Authorities

Araiza v. State, 555 S.W.2d 746 (Tex Crim App 1977                     24

Belton v. State 7 S.W.2d 1076 (1928)                                  20-21

Bland v. State, 152 Tex. Crim. 32, 211 S.W.2d 751 (1948)               20

Campos v. State 317 S.W.3d 768 (Tex App–Houston [1st Dist], 2010)     23

Carter v. State, 510 S.W.2d 323 (Tex Crim App 1974)                    24

Castillo v State, 469 S.W.2d 572 (Tex. Crim. App. 1971)                23

Jackson v. State, 270 S.W. 3d 649 (Tex App. Fort Worth 2008)           23

Roberts v. State, 513 S.W.2d 870 (Tex Crim App 1974)                   23

Sturgeon v. State, 106 S.W.3d 81 (Tex. Crim. App., 2003)            18-19

Trinidad v. State, 949 S.W.2d 22 ( Tex. App. San Antonio, 1997)     19-20




                                        v
                                NO. 06-14-00172-CR

                 _________________________________________

                          IN THE COURT OF APPEALS

                                 SIXTH DISTRICT

                            AT TEXARKANA, TEXAS

  _________________________________________________________________

                    GERALD MAC LOWREY, APPELLANT

                                          V.

                      THE STATE OF TEXAS, APPELLEE

TO THE HONORABLE COURT OF APPEALS:

      Comes now the Appellant, Gerald Mac Lowrey, and submits this brief

pursuant to the provisions of the Texas Rules of Appellate Procedure in support of

his request that the Court reverse the judgement of conviction in Cause No. 25492.

                           STATEMENT OF THE CASE

      Appellant was charged by a two count indictment with (Count One) the

offense of Theft of Property More than $1,500 but Less than $20,000 and (Count

Two) Theft of Material, Aluminum or Copper or Bronze or Brass less than $20,000

(Clerk’s Record [CR], p. 4). The state abandoned the first count of the indictment.

Appellant was convicted by a jury and sentenced by the Court to two (2) years in

the State Jail Division, (TDCJ) suspended for five years, and a fine of $1,000 on
August 6, 2014 ( CR, p. 95) .

        Appellant gave timely notice of appeal, on August 12, 2014 (CR, p. 94).

Appellate Counsel was appointed by the Trial Court on September 18, 2014 (CR,

p. 102). Appellant’s brief is due and will be filed on or before February 19, 2015.

STATEMENT REGARDING ORAL ARGUMENT

       Appellate Counsel believes that oral argument would assist the Court in this

case and requests oral argument on behalf of appellant.

ISSUES PRESENTED

       Issue No. 1 The defendant is entitled to compulsory process to secure the

presence of witnesses.

       Issue No. 2 The trial court abused it’s discretion in denying appellant’s

motion for continuance.

       Issue No. 3 The trial court erred in holding the evidence to be sufficient to

sustain the conviction because the evidence was insufficient to prove the identify

of the victim as alleged in the indictment.

       Issue No. 4 The trial court erred in holding the evidence sufficient to sustain

the conviction when there was a material and fatal variance between the name

alleged and the name proved.



                                              2
 STATEMENT OF FACTS

      Trial began on August 4, 2014. After voir dire, the Court took up several

Motions including a Motion for Writ of Attachment for a subpoenaed witness,

Raul Bueno in El Paso, Texas. The Court denied the writ, but said that he would

take it up again the next day (Reporter’s Record [RR] Volume [vol] 2, p. 58; 2nd

Supplemental Clerk’s Record ( 2d Supp.CR) pp. 3-5 ). The next day (August 5,

2014) appellant’s attorney informed the Court that the subpoenaed witness, Mr.

Bueno had agreed to appear the next morning. (RR, vol 3, pp. 12-13).

       In opening arguments the state asserted that a representative of Paris Iron

and Metal would testify that almost 700 pounds of copper was bought from

appellant; that appellant was an employee of Joe Tex working for Joe Tex on May

1, 2013; that a bill of lading described the copper delivered by appellant as the

same type of copper sold to Paris Iron and Metal. (RR, vol 3, pp. 19-20). The

state asserted that Angie Dunavant, as a representative of Joe Tex, had a greater

right to possession to the property than did appellant and that while the copper was

in transit, Joe Tex was the owner, for all practical purposes. Appellant had

permission to be in possession of the copper, but not to sell it for his own use.

(RR, vol 3, p. 21).

                                            3
       Keith Draper, a patrol deputy for the Lamar County Sherif’s office testified

that on May 4, 2013, appellant made a report of a theft of 41 sticks of flat copper

(RR, vol 3, p. 25). Appellant told him that he had also sold some scrap copper to

Paris Iron and Metal (RR, vol 3, p. 26). The witness testified there was no

conversation about the amount of scrap sold by appellant (RR, vol. 3, p. 33).

      Joel Chipman, a Lamar County Sheriff’s Officer, testified that the report of

the stolen copper described it as being 1/4'’ thick, 4" wide and 12 feet long, with a

silver colored aluminum coating (RR, vol 3, p. 47). As part of his investigation

the witness went to Paris Iron and Metal where he was shown twelve bars of

copper of various widths, including 4 inch wide bars (RR, vol 3, p. 53; see also

RR, vol 5,

States Exhibits 2 through 7). He testified that the bars were silver coated copper.

(RR, vol 3, pp. 55-56). He retrieved a copy of the sale’s slip and a photo of

appellant taken by a Paris Iron and Metal employee (RR, vol 3, p. 56). Chipman

testified that there was no wire or coils brought out by Paris Iron and Metal, only

the items pictured in state’s exhibits 2 through 7 (RR, vol 3, p. 60). The witness

was told by appellant that he bought the bars from another driver in Kentucky. He

did not know the name of the person and did not say how much he paid for the

                                            4
copper (RR, vol 3, p. 68).

      On cross examination Chipman testified that the widths of copper strips

varied from 7 inches to two and a half inches wide. Five of the strips were 4" wide

(RR, vol 3, pp. 77-78; 79). He measured one of the bars and determined it was

144" long, and all the copper strips appeared to be the same length (RR, vol 3, pp.

92, 93).     All of the reported missing bars were 4" wide (RR, vol 3, pp. 93-94).

The witness stated appellant initially told him that he got the copper from someone

who worked at the phone company and when shown photographs he stated that he

bought seven or eight sticks of copper from a truck driver in Kentucky for

$200.00. (RR, vol 3, pp. 84-85).

      Chipman testified that he considered the trucking company to be the victim

of the crime, and that he talked to individuals with Hussey Copper, the sellers, but

did not talk to anyone in El Paso where the load of copper was delivered. (RR, vol

3, p. 95).

           Angie Dunavant, an employee of Joe Tex Xpress, (Joe Tex) a record keeper

in the office, and custodian of the records, testified that Gerald Lowrey was an

owner -operator driver for the company, who had worked for Joe Tex from 2010

through 2013. (RR, vol 3, pp. 112-115). When some cargo went missing from a

                                            5
load delivered from Hussey Copper in Kentucky to Schnieder Electric in El Paso ,

appellant was terminated (RR, vol 3, p 115). She testified if something was lost or

stolen, Joe Tex was financially responsible first, and under appellant’s contract he

was ultimately responsible for it (RR, vol 3, p 118). Dunivant testified that

appellant technically had possession of the copper, but that she did not give

appellant permission to dispose of the copper (RR, vol 3, pp. 122-123). The

witness did not receive a complaint that the load was short from anyone in El Paso,

but rather from Hussey Copper (RR, vol 3, p. 123). The bill of lading from

Schnieder Electric shows there was an open pallet (RR, vol 3, p 126; Exhibit 14;

see also Exhibit 12). There were copper bars 4" wide missing (RR, vol 3, pp. 126-

127). Dunavant testified that there were bars of varying widths in the picture of

copper sold by appellant, and testified that there were other boxes with widths

other than 4" wide copper. However she did not receive any reports from either

company 1 that appellant delivered copper to, that any other boxes were open for

that particular shipment. (RR, vol 3, pp. 128-130, 131; Exhibit 12). She testified




       1
         There was a delivery of copper by Appellant to two companies in El Paso, Schnieder
Electic and Eaton Electric. Apparently nothing was reported missing in the delivery to Eaton,
and there was no evidence presented concerning the copper delivered to Eaton.
                                                  6
that appellant had hauled copper from Hussey Copper more than 150 times (RR,

vol 3, p. 135).

      After a break, appellant’s attorney informed the Court that Raul Bueno

would not honor his subpoena, and the lawyer representing him had told

appellant’s lawyer he would not appear. Based on the testimony of Dunavant there

was an inference that other crates were open, appellant needed Bueno, a Schnieder

Electric employee to rebut this testimony. The Court again denied appellant’s

Application for a Writ of Attachment (RR, vol 3, pp. 136-137; CR, p. 80).

Appellant made a record that nothing in discovery suggested that any boxes other

than the one containing 4" x144" copper bars were missing, and since Dunavant

had testified there were boxes containing other sized bars shipped he needed this

witness, who had inspected the load after the missing bars were discovered. The

Court suggested that the state and appellant enter into a stipulation concerning the

other boxes (RR, vol 3, pp. 138-139). No stipulation was entered into, and

appellant stated that the best person to testify was the receiver of the copper who

inspected the load, and who was duly served (RR, vol 3, p 140).

      On cross examination Dunavant testified that there was a handwritten note

of “one pallet, missing material,” written by the receiver, Schnieder Electric. The

                                            7
missing copper was 4" wide, and 144" long (RR, vol 3, pp. 144-145). There was

no indication that any other boxes were tampered with or that other crate lids had

been removed or other copper was missing from the shipment. The witness did not

have any conversations with the other receiver, Eaton Electric, about missing

copper (RR, vol 3, pp. 146-147). The witness did not know how many sticks of

copper was in each crate, only that everything in one crate was missing (RR, vol 3,

p. 148). The value to the missing copper was over $8,000.00, and insurance would

not pay because the material was taken by someone who worked for Joe Tex (RR,

vol 3, p. 149). The witness testified that appellant was required to maintain

insurance to cover loss The witness stated that appellant was the insured and he

paid for the insurance through Joe Tex (RR, vol 3, p. 154). Appellant also had

$2,500 in escrow to cover losses (RR, vol 3, p. 157).     The witness testified that

since appellant was the contracted person on this load and the insurance fell under

him, the loss was not covered. The truck that appellant drove was owned by him

and financed through Joe Tex. (RR, vol 3, p. 161; see Defense Exhibit 1).

      On redirect the witness testified that appellant had no ownership interest in

the load he was carrying from Hussey to El Paso. (RR, vol 3, pp. 166-167). Over

objection, Dunavant testified that there were other transports of bundles (of

                                           8
copper) in addition to wooden boxes (RR, vol 3, p 159).

      The witness testified that there were no complaints before this incident about

appellant. (RR, vol 3, p 171).

      Craig Skidmore testified that it is possible for a load to arrive at a destination

and be a few hundred pounds short and no one would know the difference (RR, vol

3, p. 188).

      After the State rested, appellant made a Motion for a directed verdict,

arguing that the copper sold did not conform with what was reported missing. The

State argued that the load had copper bars of varying widths (RR, vol 3, pp. 202-

203). Appellant renewed his request to have the witness Bueno brought to Court

because the state’s theory was that there was copper from other crates that did not

match the copper Schnieder reported was missing. Appellant argued that it was

important for the witness to come in and testify that nothing else was missing from

the load. Court denied the request, but entered a limine order that state could not

argue during closing that appellant removed other widths of copper from other

crates. (RR, vol 3, pp. 204-206) The state objected to this, and appellant argued

that limine order was not sufficient because the information was already before the

jury, and asked for an attachment of the witness. (RR, vol 3, pp. 208-209).

                                             9
       Appellant testified that he picked up a load of copper bars in Eminence

Kentucky to deliver to Schnieder Electric in El Paso, Texas. He bought scrap

copper from another driver about 40 miles from Eminence, Kentucky. Since he

had this scrap copper he decided to stop in Paris, Texas to see his mother and to

sell the copper he bought. (RR, vol 3, pp. 209-210). He stopped in Powderly,

Texas, at the house of Lacrisha Woodall, his ex-daughter in law, borrowed her

pickup, and, with Chad Lester and Chris Woodall took the copper he bought in

Kentucky, along with another 80 pounds of copper wire to Paris Iron and Metal.

After the copper was sold, appellant, Lacrisha, Chris, Chad, and Heather Sulsar,

went to the casino. (RR, vol 3, pp. 216-219). Upon returning from the casino, he

went to Paris in his tractor trailer truck, parked the trailer at the Exxon Station on

the Loop, and went into Paris to visit his mother. He left Paris at 2:30 p.m. on

May 1, 2013, and arrived in El Paso at 9:00 a.m. the next day. When he got to

Schnieder Electric he discovered the copper was missing (RR, vol 3, pp. 224-225).

He believes that Chris Woodall and Chad Lester left him and “the girls” while they

were at the casino and went to Lacrisha’s house where the truck was parked and

stole the copper. Schnieder Electric was aware there was copper missing from the

load, and he and Raul Bueno checked all the other cases and determined that only

                                            10
one case was missing copper (RR, vol 3, p 227). Appellant’s attorney asked “

after y’all looked into the crates, about other, if anything else, missing.” The state

objected, stating that appellant could only testify about what he personally

observed, not what Bueno observed. Appellant’s attorney rephrased his question

to ask if he personally observed other copper missing. Appellant testified there

was no other copper missing (RR, vol 3, p 228; p. 229).

       Appellant made a report to law enforcement in Paris on May 4, 2014, and

spoke to Sheriff’s Deputy Draper .     He told the officer that copper had been stolen

off his truck, and also told him that he had sold copper scrap at Paris Iron and

Metal (RR, vol 3, pp. 232-233).

       On May 17, 2013 appellant talked to Detective Chipman. He told Chipman

that some of the scrap copper came from his brother, and underground cable from

his mobile home, and that some was bars that he bought from a guy in Kentucky

(RR, vol 3, pp. 236-237). He denied taking the copper from the truck.

       On cross examination he testified that he loaded his truck in Kentucky at

1:00 a.m., stopped at a truck stop 40 miles down the road and bought the copper

between 1:30 a.m. and 2:00 a.m., and arrived in Paris fifteen hours later.

 (RR, vol 3, pp. 245-247).

                                            11
      He testified that all of the copper, the bars, scrap and coiled wire was

weighed together at Paris Iron and Metal. He bought the copper in Kentucky for

$200.00 and sold all the copper for $1,896.00 (RR, vol 3, pp. 254-255).

      The next morning, before testimony resumed, appellant’s attorney filed a

Motion for Continuance based on the non-appearance of the witness Raul Bueno.

The trial court denied the motion (RR, vol 4, pp. 6-7).

      Heather Sulsar testified that on May 1, 2013, she rode to the Casino with

appellant , Lacrisha Woodall, Chris Wodall and Chad Lester in Lacrisha’s pickup.

(RR, vol 4, pp. 8-13). She testified that appellant left his truck at Lacrisha’s

house when they went to the Casino (RR, vol 4, p. 16).

      After the parties closed, appellant’s attorney reminded the Court of the

limine order about not arguing that non 4" bars could have been taken from other

boxes. The Judge told the State’s attorney to approach the bench before making

such argument (RR, vol 4, pp. 64-66)

      In closing, the state argued that “the owners, his bosses, Hussey copper in

Kentucky, the El Paso people, nobody said hey, help yourself if you want to sell

some of these, go ahead. He didn’t have permission to do any of that.”



                                           12
      The state argued that the boxes were easy to get into, and in response to the

evidence that nothing else was missing from other boxes, stated “Do you really

think they are going to catch all of them. Do you really think that they caught

some of those other boxes were light” (RR, vol 4, p. 92).

      The jury found appellant guilty (RR, vol 4, p. 97)

      After a punishment hearing, the trial court sentenced appellant to two years,

probated for five years, and a $1,000.00 fine (RR, vol 4, pp. 125-126).

Summary of Argument

      The trial court erred in not issuing a Writ of Attachment for a witness that

had been subpoenaed by appellant and did not appear. The witness testimony was

relevant and material. Appellant made a showing as to what the witness testimony

would be. In this case, 4 inch bars of copper were reported missing from a crate on

a truck load of copper. Appellant, the truck driver, sold copper bars in Paris, Texas

that varied in width from 2 ½ inches to 7 inches wide. The state, asked witnesses if

it was possible that other crates, with different widths of copper had been stolen,

but not noticed or reported. The witness that appellant subpoenaed would have

testified that he had inspected the load, and there was no other copper missing from



                                           13
any of the other crates and all of the missing copper was 4" wide. Appellant also

filed a Motion for continuance, so that he could secure the witness for court. The

court abused it’s discretion by denying the continuance.

       The evidence is insufficient to sustain the conviction to prove the identity of

the victim as alleged in the indictment, or alternatively there is a material and fatal

variance between the name alleged in the indictment and the name proved. The

indictment alleges the victim as “Joe Tex Express.” There is no pleading that Joe

Tex Express is a corporation. Documents introduced at trial name the entity as

“Joe Tex Xpres, Inc.” Angie Donavant testified that she was the bookkeeper

record keeper and Chief Financial Officer for “Joe Tex Xpress” (as reported by the

Court Reporter). Neither “Joe Tex” nor “ Joe Tex Express” nor anyone else

testified as to ownership or lack of consent for appellant to take the copper .

     If the court finds that the state adequately proved that Joe Tex Express is a

corporation, a special owner would need to be designated in the pleadings. No

one was designated as a special owner to be responsible for the copper allegedly

taken from the truck driven by appellant.




                                             14
Argument and Authorities

Issue No. 1 (Restated)

Appellant was entitled to compulsory process to secure the presence of witnesses.

Issue No. 2 (Restated)

The trial court abused it’s discretion in denying appellant’s motion for

continuance.

Argument and Authorities under Issues 1 and 2

      Appellant was charged with theft of copper. The state’s proof was that

fourteen copper bars, 4" wide and 144" long and weighing approximately 680

pounds was stolen from a crate in a truck load containing an unspecified number

of crates with a total weight of approximately 43,000 pounds. The state alleged

that appellant, a truck driver delivering the load from Hussey Copper in Eminence,

Kentucky to Schnieder Electric Co. in El Paso Texas, took the copper bars from the

crate, and presumably from other crates on the truck and sold them in Paris, Texas

at Paris Iron and Metal. Appellant admitted that he sold copper to Paris Iron and

Metal, but it was copper bars that he bought in Kentucky at a truck stop, and some

copper wire that he had acquired from his brother and from a cable that he dug up

at a mobile home he owned, and was not from the load of copper he was

                                           15
delivering. The evidence was undisputed that the missing bars from the open crate

were all 4" wide and 144" long. The evidence at trial was that the bars sold to

Paris Iron and Metal varied in width from 2 ½ inches wide to 7 inches wide, and

that some were 4 inches wide. There was some evidence, from Angie Dunavant,

an employee of Joe Tex, that other crates (or bundles) contained copper bars of

widths other than 4 inches.

       When the delivery was made to Schnieder Electric in El Paso and it was

discovered that a crate had been tampered with and there were missing copper bars

from the crate, appellant and Raul Bueno, an employee of Schnieder Electric

inspected the load to make sure that there was no other missing copper from any

of the other crates or bundles.

      On July 29, 2015, appellant subpoenaed Bueno to come to court to testify

about the inspection that he made. Bueno did not show up. Trial began on August

4, 2014. After voir dire, the Court took up several Motions including a motion by

Appellant for a Writ of Attachment for Raul Bueno.       The Court denied the writ,

but said that he would take it up again the next day (RR, vol 2, p. 58).

      On August 5, 2014, trial on the merits began. Attorney for Appellant

informed Court that he had been told by Court to make an oral Motion for Writ if it

                                           16
was necessary. Appellant’s attorney informed the Court that the subpoenaed

witness, Mr. Bueno had agreed to appear the next morning. (RR, vol 3, pp. 12-

13). Later, appellant’s attorney informed the Court that Raul Bueno would not

honor the subpoena, and the lawyer representing Bueno had told appellant’s lawyer

he would not appear ( See CR, vol 1 p. 80; RR vol 3 pp. 136-137).

      The attorney informed the court that based on the testimony of Angie

Dunavant, an employee of Joe Tex, there was an inference that appellant had taken

copper from other crates , and that Bueno, an employee for Schnieder Electric

would rebut this testimony. In addition to the Writ of Attachment, appellant filed

a Motion for Continuance to allow time to secure the witness. The Court denied

appellant’s Application for a Writ of Attachment and Motion for Continuance (RR,

vol 3, pp. 136-137; CR, p. 68).

       Appellant made a record that nothing in discovery had ever been given

suggesting that any boxes other than the one containing 4" x144" copper bars were

missing, and since the witness (Donavant) had testified there were boxes

containing other sized bars shipped that could have been taken by appellant, he

needed this witness to rebut this testimony.



                                           17
         Additionally, the State argued in closing that appellant could have taken

copper from other boxes or bundles on the truck, stating specifically, “[d]o you

really think they are going to catch all of them. Do you really think that they

caught some of those other boxes were light” (RR, vol 4, p. 92). Clearly, Raul

Bueno was a very important witness for the defense.

           To preserve error when a subpoenaed witness does not appear, the party

must request a writ of attachment, which must be denied by the trial court, the

party must show what the witness would have testified to; and testimony that

witness would have given must be relevant and material. Sturgeon v. State, 106

S.W.3d 81, 82 (Tex. Crim. App., 2003). In Sturgeon, two men attacked and

robbed the victim and stole his car. A day after the robbery , Sturgeon was arrested

driving the victim’s car. The victim identified the defendant in a lineup but failed

to identify two passengers in the car, one of whom had the victim’s identification

cards.     At trial, the defendant subpoenaed two alibi witnesses to testify that

appellant was some thirty miles away when the robbery occurred. The witnesses

initially showed up and were sworn in by the Court, but subsequently failed to

appear. The trial court refused to issue a Writ of Attachment because there was no

affidavit from the attorney or the defendant stating that either thought the witnesses

                                             18
were about to leave the county. The Court of Criminal Appeals reversed, and in

it’s discussion stated that no affidavit was necessary, only a record of what the

witness’ testimony would be.

      In Trinidad v. State, 949 S.W.2d 22, 23 ( Tex. App. San Antonio, 1997) ,

absent witnesses were subpoenaed to testify for the defendant on the evening after

the second day of trial. The following day, when the witnesses did not appear,

Trinidad requested a writ of attachment. However, the trial court denied Trinidad’s

request for a writ of attachment stating that Trinidad failed to show sufficient reason

to delay the trial. Trinidad’s attorney then dictated a motion for continuance into

the record. The trial court denied the motion for continuance noting that Trinidad

did not seek the court’s assistance in securing the presence of the witnesses the

previous day and that there had been more than sufficient time to subpoena

witnesses while the case was pending. In it’s discussion the Court of Appeals set

forth the three requirements to preserve error when a subpoenaed witness does not

appear: (1) the party calling the witness must request a writ of attachment that must

be denied by the trial court; (2) the party must show what the witness would have

testified to; and (3) the testimony that would have been given must be relevant and

                                            19
material. Trinidad at 23. Trinidad fulfilled these    requirements, and the Court of

Appeals reversed for a new trial.

         In the case before this Court, appellant fulfilled all of the requirements set

forth in the above cases. He subpoenaed the witness in a timely fashion. When the

witness failed to show, he requested a writ of attachment, and he set forth at length

both what the witness would testify to and set forth an adequate showing of how the

witness’ testimony was relevant and material.

    The state’s theory of the case was that appellant stole copper bars from the truck

load he was delivering to Schnieder Electric in El Paso, Texas, including bars that

were not in the bundle that contained only 4" wide bars. In his bill of exceptions,

his motion for continuance, and his motion for new trial, appellant set forth that the

witness would testify that he inspected the entire load, and nothing was missing

except from the box containing the 4" wide bars. Therefore any other copper bars

missing could not have been taken from this load. While appellant testified to the

inspection, Bueno was the only disinterested witness who could testify to this

particular fact. See Bland v. State, 152 Tex. Crim. 32, 211 S.W.2d 751 (1948)

(error to deny continuance to obtain attendance of defense witnesses who were “the

only disinterested witnesses not related by blood or marriage to defendant.”); Belton

                                            20
v. State 7 S.W.2d 1076 (1928) (rule against granting continuances when additional

testimony was only “cumulative” did not apply when defendant’s wife was the only

witness to testify at trial.). Clearly the trial court erred and appellant was harmed

when the Court failed to issue a Writ of Attachment for the witness Raul Bueno.

Based on the foregoing argument and authority, the court should reverse and

remand this case for a new trial.

Issue No. 3 (Restated)

The trial court erred in holding the evidence to be sufficient to sustain the

conviction because the evidence was insufficient to prove the identify of the victim

as alleged in the indictment.

Issue No. 4. (Restated)

The trial court erred in holding the evidence sufficient to sustain the conviction

when there was a material and fatal variance between the name alleged and the

name proved.

Argument and Authorities under Issues 3 and 4

       Count two of the indictment alleges in relevant part “that Gerald Mac

Lowrey. . . did then and there unlawfully appropriate, by acquiring or otherwise

exercising control over, property to wit: aluminum or bronze or copper or brass of

                                            21
the value of less than $20,000.00 from Joe Tex Express, the owner thereof, without

the effective consent of the owner and with intent to deprive the owner of the

property.” (CR, vol 1, p. 4).

        Documents show that the trucking company, the alleged owner of the copper

is Joe Tex Xpress, Inc. (See RR, Vol 5, State’s Exhibit (sx) 14, the stamps thereon

on each page, see also Defendant’s Exhibit 1[contract between appellant and Joe

Tex Xpress, Inc.]).

        A. Failure to allege or prove Joe Tex Express is a Corporation

        There is no pleading that “ Joe Tex Express” is anything other than an

individual person. The witness who came to court, and testified concerning

ownership, was Angie Dunavant. She worked for Joe Tex Xpress. 2 (RR, vol 3, p.

112).       The state, having alleged that an individual named Joe Tex Express was the

owner, was required to bring forth this individual to prove ownership of the

property. Angie Dunavant testified that she was the Chief Financial Officer, and

was specifically asked if she had all the records for Joe Tex Trucking, to which she




        2
         That is how the Court Reporter took down the testimony. There is no indication that the
witness testified as to now “Express” was spelled. In any event there is no testimony that Joe
Tex Express was a corporation.
                                                  22
answered “yes.” (RR, vol 3, p. 113).     She then explained that appellant was an

owner-operator truck driver for “our company.” (RR, vol 3, p. 114).

      Where one person is alleged in an indictment to own property, but it is shown

to be owned by another, or by a corporation, the State has failed to prove ownership

as alleged in a felony theft indictment. Roberts v. State, 513 S.W.2d 870 (Tex

Crim App 1974). In Roberts, the defendant was caught loading chain from the rack

of a truck cab into the back seat of defendant’s car. The truck driver, Ernest

Rosales, testified that he worked for the Dahlstram Corporation, that Jack Dahlstron

was his boss. The alleged owner of the chains, Jack Dahlston, did not testify. Jack

Dahlstrom was not shown to be the actual owner or the special owner. The state

failed to prove it’s allegations, and the case was reversed.

        The usual practice where corporate ownership is alleged is to allege

ownership in the employee who has custody and control of the property. Castillo v

State, 469 S.W.2d 572 (Tex. Crim. App. 1971), Jackson v. State, 270 S.W. 3d 649

(Tex App. Fort Worth 2008); Campos v. State 317 S.W.3d 768 (Tex App–Houston

[1st Dist], 2010). In this case, the State has failed to prove that Joe Tex Express is

the owner of the property. Joe Tex Xpress Inc. is the owner. Further, while the

state could have alleged Angie Dunavant as a special owner, it did not.

                                            23
       In Carter v. State, 510 S.W.2d 323 (Tex Crim. App. 1974), an embezzlement

case, the Court of Criminal Appeals held that alleging ownership to be in a

particular individual, whom proof showed to be president of a corporation, the

State was required to prove that allegation. Proof that another individual was a

special owner under a proper charge would have been sufficient. However the State

did not do so, and, therefore, failed to prove its allegation of ownership, and

reversal was required.

B. Joe Tex Express as Individual

      If “ Joe Tex Express” is an individual, there is no evidence that the property

was taken without the effective consent of Joe Tex Express. In Araiza v. State, 555

S.W.2d 746, 747 (Tex. Crim. App. 1977), the state alleged the defendant

burglarized the home of C. D. Loop while Mr. And Mrs. Loop were away. The

Loops entrusted the care of their house to their two sons and their daughters-in-law.

At trial C. D. Loop did not testify, nor did the State offer any evidence on whether

C. D. Loop had given his effective consent to the appellant. The State called Mrs.

Loop who testified she gave no consent, and C. D. Loop’s son Leonard, who had

been entrusted with the care of the residence during the Loops’ absence, testified



                                            24
                                                               3
that he had given no such consent to the defendant.                The court held that because

of the variance between the allegation and proof of ownership and consent in the

indictment, the state did not meet its burden of proving the allegations as laid out in

the indictment, and accordingly reversed the judgment.

        Based on the foregoing argument and authority, the court should reverse and

render a verdict of acquittal for appellant.

Prayer

           For the reasons contained herein, Appellant respectfully prays that this

Court of Appeals for the Sixth District reverse this conviction and remand this case

to the trial court for a new trial, or alternatively, reverse and enter a judgment of

acquittal, and for such other relief as appellant may be entitled.

                                                Gary L. Waite
                                                104 Lamar Ave.
                                                Paris, Texas 75460
                                                (903) 785-0096
                                                (903) 785-0097
                                                garywaite@sbcglobal.net

                                                By: /s/Gary L. Waite
                                                   Gary L. Waite
                                                   State Bar No. 20667500
                                                   Attorney for Appellant

       3
        In the case before this Court, Angie Dunivant testified that appellant technically had
possession of the copper, but that she did not give appellant permission to dispose of the copper
(RR, vol 3, pp. 122-123).
                                                  25
                           CERTIFICATE OF SERVICE

      This is to certify that on February 12, 2015, a true and correct copy of the

above and foregoing document was served on the County Attorney's Office, Lamar

County, 119 N. Main, Paris, Texas 75460, by hand delivery.



                                 /s/Gary L. Waite



             CERTIFICATE OF COMPLIANCE WITH RULE 9.4 (i)

       The brief filed in this cause complies with the word limitations of Tex.

R.App. P. 9.4 (i) because the brief contains 5,212 words, excluding the parts of the

brief exempted by Tex. R. App. P. 9.4 (i) (1).



                                    /s/Gary L. Waite____________________




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