                             NUMBER 13-11-00651-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

JUAN DANIEL LICON,                                                           Appellant,

                                            v.

THE STATE OF TEXAS,                                                           Appellee.


                   On appeal from the 252nd District Court
                        of Jefferson County, Texas.


                         MEMORANDUM OPINION
        Before Chief Justice Valdez and Justices Garza and Vela
                Memorandum Opinion by Justice Vela
       Appellant, Juan Daniel Licon, appeals from an order revoking his probation and

sentencing him to two years in state jail. By two issues, appellant contends that the trial

court abused its discretion in revoking his probation and stacking his two-year state jail

sentence on top of a possible future sentence. We affirm as modified.
                                  I. PROCEDURAL HISTORY

        The record reflects the following. On April 10, 2003, appellant was indicted for

felony theft.   TEX. PENAL CODE ANN. § 31.03 (West 2011).             On January 30, 2006,

appellant entered into a plea agreement with the State and was placed on deferred

adjudication community supervision for five years. The State filed a motion to revoke

appellant's probation on February 2, 2010.          On April 12, 2010, his probation was

extended for two years. Due to new felony theft charges involving a vehicle stolen from a

dealership, the State filed a second motion to revoke appellant's probation on July 8,

2011.    Appellant's probation was revoked on September 12, 2011, and he was

sentenced to two years in state jail.

                                        II. DISCUSSION

        Appellant argues in his first issue that the trial court erred in revoking his probation

because: (1) the State failed to prove material allegations in the State's amended motion

to revoke; and (2) there is insufficient evidence to show that appellant committed the

offense of theft as alleged. In his second issue, appellant argues that the trial court erred

in ordering the stacking of his two-year sentence on top of a possible future Harris County

sentence. The State concedes error on appellant's second issue because under Texas

law, the trial court does not have authority to stack a sentence upon a potential sentence

in a pending matter. TEX. CODE CRIM. PROC. ANN. § 42.08 (West 2009). While the trial

judge orally pronounced the stacking of appellant's sentence, the written judgment in this

case does not include a cumulation order. When the oral pronouncement of sentence

and the written judgment vary, the oral pronouncement controls. Coffey v. State, 979


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S.W.2d 326, 328 (Tex. Crim. App. 1998).         Therefore, appellant's second issue is

sustained and we modify the judgment to reflect that the sentence will run concurrently

with any sentence imposed in Harris County.

A. Standard of Review and Applicable Law

      The standard of review for the revocation of a probated sentence is whether the

district court abused its discretion. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App.

1993). A court abuses its discretion when it "applie[s] an erroneous legal standard, or

when no reasonable view of the record could support [its] conclusion under the correct

law and the facts viewed in the light most favorable to its legal conclusion." Lanum v.

State, 952 S.W.2d 36, 39 (Tex. App.—San Antonio 1997, no writ) (quoting DuBose v.

State, 915 S.W.2d 493, 497–98 (Tex. Crim. App. 1996)). The State bears the burden of

proving the allegations of a motion to revoke probation and "an order revoking probation

must be supported by a preponderance of the evidence; in other words, that greater

weight of the credible evidence which would create a reasonable belief that the defendant

has violated a condition of his probation." Scamardo v. State, 517 S.W.2d 293, 298

(Tex. Crim. App. 1974).

B. Analysis

      1. State's Failure to Prove Material Allegations

      The pleading of a motion to revoke probation need not meet the requirements of

an indictment. Figgins v. State, 528 S.W.2d 261, 263 (Tex. Crim. App. 1975); see

Fowler v. State, 509 S.W.2d 871, 873 (Tex. Crim. App. 1974). It is enough that the

pleadings give the defendant fair notice of allegations against him so that he may prepare


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a defense. Id. Appellant argues that the State failed to prove that the owner of the

alleged stolen vehicle was Diane M. Boothe and that because the witness identified

herself as "Miriam Diane Boothe," there could be two separate people involved. While

the name of the owner is not a substantive element of theft, the State is required to prove,

beyond a reasonable doubt, that the person alleged in the indictment is the same person.

Byrd v. State, 336 S.W.3d 242, 252 (Tex. Crim. App. 2011). To determine whether a

variance between the indictment and evidence materially prejudiced appellant's

substantial rights, we must ask whether the indictment informed appellant "of the charge

against him sufficiently to allow him to prepare an adequate defense at trial and would the

indictment subject appellant to the risk of being prosecuted later for the same crime?"

Gollihar v. State, 46 S.W.3d 243, 258 (Tex. Crim. App. 2001).

       We find no indication that, in fact, "Diane M. Boothe" and "Miriam Diane Boothe"

are separate people. Diane M. Boothe stated that her position of employment was

comptroller of the dealership that owned the vehicle. As comptroller, Boothe testified

that she was responsible for "all financial records, for financial statements, for making

sure all cash is accounted for, that all of the inventories are correct, all the books are

straight." Appellant took the stand at the hearing and stated that while Diane does not

own the company, "she's the one that pretty much controls everything that goes on at that

store." It is clear from the hearing testimony that the State proved that Diane M. Boothe

was the representative, by virtue of her employment as comptroller, of the owner of the

vehicle. Whether the witness goes by "Diane M. Boothe" or "Miriam Diane Boothe" is not

material to the allegations in this case.        The motion to revoke probation met the


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requirement that appellant in this case be given fair notice of the allegations against him

in order to prepare a defense and did not subject him to the risk of being prosecuted later

for the same crime. Id.

       2. Insufficient Evidence

       The trial judge is the sole trier of facts, the credibility of the witnesses and the

weight to be given the testimony. Ross v. State, 523 S.W.2d 402, 403 (Tex. Crim. App.

1975). Two witnesses testified at the motion to revoke probation hearing. The first

witness, Boothe, identified the missing vehicle, identified appellant as a former employee,

and stated that she received tips that appellant stole the vehicle. The second witness,

Javier Guerrero, identified appellant as his fellow employee and as the person that he

saw drive away in the vehicle in question. Guerrero also testified that appellant verbally

threatened him after finding out that Guerrero "tattletaled" to Boothe and other

management personnel. The judge in this case found the witnesses to be credible and

their testimony to be sufficient to establish that appellant committed felony theft as

alleged in the indictment. Based on the preponderance of evidence, a reasonable belief

that appellant violated a condition of his probation exists. See Scamardo, 517 S.W.2d at

298.

       Appellant's probation was conditional on his not committing any additional crime.

The evidence at the revocation hearing showed that he committed another crime;

therefore it is legally sufficient to support the trial court's decision to revoke appellant's

probation. We overrule appellant's first issue.




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                                       III. CONCLUSION

      Finding the court did not abuse its discretion, we affirm the judgment as modified

herein.



                                               ROSE VELA
                                               Justice


Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the
12th day of July, 2012.




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