                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-13-00204-CR


RODNEY JAMES RICKETTS                                            APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


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     FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
                   TRIAL COURT NO. 1321576R

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                       MEMORANDUM OPINION 1

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     In two points, appellant Rodney James Ricketts appeals his third-degree-

felony conviction and his forty-nine year sentence for theft of property in an

amount of $20,000 or more but less than $100,000. 2 Appellant argues that the


     1
      See Tex. R. App. P. 47.4.
     2
      See Tex. Penal Code Ann. § 31.03(a), (e)(5) (West Supp. 2014).
State presented insufficient evidence to support his conviction and that his

classification as a habitual offender for punishment enhancement purposes

violated his constitutional rights. 3 We affirm.

                                 Background Facts

      In October 2011, Bedford police officer Miles McLain responded to an

activated security alarm at a Subway restaurant. Upon arrival, Officer McLain

saw that the door to the store was open and a light was on. Officer McLain heard

a loud drilling noise coming from inside the shop.       After calling for back-up,

Officer McLain hid behind a pillar outside the front of the store. As appellant left

the store, Officer McLain ordered him to the ground and arrested him.

      In the ensuing investigation, the police connected appellant to a string of

twenty-six burglaries beginning in January 2011. Although the damage varied by

location, the store owners suffered a variety of losses including property damage,

theft of electronics, theft of tools, drilled safes, stolen cash, and the removal of

several books of Texas Department of Public Safety inspection stickers.

      In April 2013, a grand jury indicted appellant with theft of property valued at

$20,000 or more but less than $100,000. The indictment included a habitual

offender notice for punishment enhancement purposes. Appellant filed several

pretrial documents, including an election for the jury to set his punishment if



      3
      See Tex. Penal Code Ann. § 12.41(1) (West 2011), § 12.42(d) (West
Supp. 2014).


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convicted. At trial, appellant pled not guilty for the charge and not true to the

enhancement notice.

      After the presentation of evidence, the jury convicted appellant. During the

punishment phase, the State presented evidence of three felony offenses out of

North Carolina and a third-degree-felony offense out of Harris County, Texas.

The jury returned a verdict finding the habitual offender allegations true and

sentencing appellant to forty-nine years’ confinement.       After an unsuccessful

motion for new trial, appellant brought this appeal.

                             Evidentiary Sufficiency

      In his first point, appellant argues that the evidence is insufficient to

support his conviction.     Specifically, he contends that the State failed to

adequately prove the element of value because property owners testified to their

replacement costs rather than the fair market value of the stolen items at the time

of the thefts. 4 See Tex. Penal Code Ann. § 31.08(a)(1)–(2) (West 2011).

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Winfrey v. State, 393 S.W.3d 763, 768

      4
        Appellant contests only value. He does not challenge that the evidence is
sufficient to prove that he unlawfully appropriated property with the intent to
deprive owners of it or that his thefts comprised a continuing course of conduct
that could be aggregated. See Tex. Penal Code Ann. § 31.09 (West 2011).


                                         3
(Tex. Crim. App. 2013). This standard gives full play to the responsibility of the

trier of fact 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, 99 S. Ct. at 2789; Blackman v. State, 350 S.W.3d 588, 595 (Tex. Crim.

App. 2011).    We must presume that the factfinder resolved any conflicting

inferences in favor of the verdict and defer to that resolution. Jackson, 443 U.S.

at 326, 99 S. Ct. at 2793; Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.

2013).

      To obtain a third-degree-felony theft conviction, the State needed to prove

that the total value of property stolen equaled or exceeded $20,000. See Tex.

Penal Code Ann. § 31.03(e)(5). Property includes any tangible personal property

or any document, including money, which embodies something of value.            Id.

§ 31.01(5)(B)–(C) (West Supp. 2014).         On review, we must give proper

deference to the valuation assigned by the trier of fact. See Tex. Code Crim.

Proc. Ann. art. 38.04 (West 1979); Winfrey, 393 S.W.3d at 768. As such, we will

reverse only if the evidence shows that no rational jury could find the total value

of cash, vehicle inspection stickers, and personal property at or above $20,000.

      The unchallenged testimony of witnesses at trial is as follows:

      • Anthony Ta, owner of Yogurtvana, reported $603.65 missing;

      • Tawnya Langhoff, area supervisor of a Subway store, filed an insurance
        claim listing $1,356 taken;




                                        4
• Brian Wells, owner of four Subway stores, showed a total of $2,008.61
  appropriated according to his point-of-sale printouts and estimated
  another $280 missing in cash tips;

• Terry Clifford, representative at EmbroidMe, testified to $100 stolen out
  of the cash drawer;

• Celestin Muhindura, operator of a small, local restaurant, showed
  $2,200 taken according to a computer report;

• Monte Daily, owner of a Kwik Kar, reported $625 in cash stolen;

• Kelly Privett, owner of another Kwik Kar, estimated losing $200;

• Rabih Asmar, owner of a Subway store, showed $940.60 appropriated
  according to point-of-sale printouts;

• James Cole, employee at a Kwik Kar, estimated $200 stolen from the
  safe;

• Patrick Starrett, corporal for the patrol division of the Colleyville Police
  Department, testified to taking a report of $200 missing after a burglary
  of a Burger Island store;

• Geoffrey Malecky, manager of a Subway store, reported $548 taken
  according to point-of-sale printouts;

• Bharat Patel, owner of a Subway store, estimated $1,300 missing from
  the safe and back office;

• Wyatt Hurt, owner of Fat Daddy’s, reported a total of $2,200 stolen;

• Donnie Wilkerson, owner of a Subway store, showed a total of
  $3,934.41 stolen according to end-of-day reports and a verified counter
  check;

• Bhupendra Patel, owner of a Subway store, testified to $908.63
  appropriated according to point-of-sale printouts;

• Richard Hollis, owner of a Subway store, estimated $900 taken;

• Donnie Rogers, area supervisor for a Subway store, reported $910.14
  stolen from his safe;




                                   5
      • Sandra Leonard, manager of a Subway store, reported $1,253 missing
        to the police;

      • Caterina Kuan, employee at a Subway store, showed $910.63 taken
        according to point-of-sale printouts; and

      • Kanwar Singh, owner of a Subway store, testified to $1,090 taken from
        his safe.

In addition to cash stolen, a representative from the Texas Department of Public

Safety calculated the value of the inspection stickers taken from the Kwik Kar

stores at $6,139.75. He testified that there is an active market for these stickers

and that a full book of stickers could be liquidated for cash.

      On appeal, appellant does not contest the amount of cash stolen or the

value of the inspection stickers. Instead, he focuses on other property and a

distinction between fair market value and replacement value. 5 However, as the

uncontroverted testimony of the property owners established that appellant stole

more than $20,000 in cash and inspection stickers, we need not reach the issue

of proper valuation of the other property. See Gilmore v. State, 397 S.W.3d 226,

243–44 (Tex. App.—Fort Worth 2012, pet. ref’d) (explaining that if evidence is

sufficient to support guilt under one theory, we need not address other theories)

(citing Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003)).




      5
       Specifically, appellant focuses on the value of stolen computers, computer
components, and recording equipment. He argues, “The record is replete with
examples from the various franchise owners testifying to the replacement cost of
the components taken from electronic units or used computers . . . without first
ascertaining their fair market value near the time of the burglary.”


                                          6
      Adding the amounts described above, appellant stole $22,668.67 in cash.

Although at trial appellant attempted to undermine the property owners’

testimonies of cash taken, he has not challenged that evidence on appeal, and

determining the weight and credibility of the witnesses’ testimonies remains the

exclusive role of the jury. See Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim.

App. 2010). Adding the value of the inspection stickers, appellant stole a total of

$28,808.42 before valuing the other property that he focuses on in this appeal.

Considering this figure, we conclude that a rational jury could have found beyond

a reasonable doubt that appellant stole more than $20,000 in property.

Accordingly, we hold that the State presented sufficient evidence to prove the

element of value. We overrule appellant’s first point.

                           Punishment Enhancement

      In his second point, appellant contends that the trial court violated his due

process rights and his right to equal protection under the laws 6 when it allowed

his North Carolina convictions to be used for sentence enhancement.

Specifically, appellant argues that his North Carolina convictions would have

been only state-jail felonies if committed in Texas. As such, appellant argues

that he is being treated differently than a similarly situated Texas convict who

committed only a state-jail felony.     See Tex. Penal Code Ann. § 12.42(d)

      6
         In summarizing his point, appellant cites the Fifth and Fourteenth
Amendments to the federal constitution. See U.S. Const. amends. V, XIV. He
also cites article I, sections 13 and 17 of the Texas constitution. See Tex. Const.
art. I, §§ 13, 17.


                                         7
(increasing the punishment range to twenty-five years to life when a convicted

felon has twice before been convicted of a felony but stating that state-jail

felonies may not be used for this enhancement). 7 But see id. § 12.41(1) (stating

that a conviction obtained outside of the penal code is classified as a third-

degree felony if confinement in a penitentiary was a possible punishment). 8 In

response, the State argues that appellant has not preserved his constitutional

complaints.

      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. Tex. R. App. P. 33.1(a)(1); Landers v. State, 402 S.W.3d

252, 254 (Tex. Crim. App. 2013); Sample v. State, 405 S.W.3d 295, 300 (Tex.

App.—Fort Worth 2013, pet. ref’d).      The trial court must have ruled on the

request, objection, or motion, either expressly or implicitly, or the complaining

      7
       The State proved a third-degree-felony conviction (possession of between
one and four grams of cocaine) in Texas for appellant. Thus, if one North
Carolina conviction also qualified as an enhancement-worthy felony under
section 12.42(d), appellant was subject to the increased penalty range of twenty-
five years to life.
      8
        The record shows that in 2001 in North Carolina, appellant was convicted
of multiple counts of breaking and entering. It is undisputed that confinement in
a penitentiary was a possible punishment for those offenses. The judgments
from those convictions required imprisonment with the North Carolina
Department of Corrections. Appellant appears to recognize that under section
12.41(a), his breaking and entering convictions from North Carolina qualify as
third-degree felonies in Texas, but he contends that this qualification violates his
constitutional rights.


                                         8
party must have objected to the trial court’s refusal to rule. Tex. R. App. P.

33.1(a)(2); Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011).           A

reviewing court should not address the merits of an issue that has not been

preserved for appeal. Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim. App.

2010) (op. on reh’g); Sample, 405 S.W.3d at 300.

      Further, the complaint made on appeal must comport with the complaint

made in the trial court or the error is forfeited. Clark v. State, 365 S.W.3d 333,

339 (Tex. Crim. App. 2012); Lovill v. State, 319 S.W.3d 687, 691–92 (Tex. Crim.

App. 2009). To determine whether the complaint on appeal comports with that

made at trial, we consider the context in which the complaint was made and the

parties’ shared understanding at that time. Clark, 365 S.W.3d at 339; Resendez

v. State, 306 S.W.3d 308, 313 (Tex. Crim. App. 2009).

      If the complaint alleges a violation of constitutional rights, the appellant

must show a specific objection at the trial level or face forfeiture of the claim.

See Clark, 365 S.W.3d at 340 (“The court needs to be presented with and have

the chance to rule on the specific constitutional objection because it can have

such heavy implications on appeal.”). This requirement applies to both “facial”

and “as applied” challenges to the constitutionality of a statute. See Karenev v.

State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009); Flores v. State, 245 S.W.3d

432, 437 n.14 (Tex. Crim. App. 2008).

      Appellant draws our attention to his objection to the trial court’s charge on

punishment. In that objection, appellant claimed that allowing the North Carolina


                                        9
convictions to enhance his punishment created a full faith and credit 9 issue and

discriminated against him for being a citizen of another state at the time of the

prior crimes’ commission. At one point, appellant argued,

               What I’m trying to prove up is that the habitual enhancement
      . . . is going to be incorrect in that the convictions in North Carolina
      treat my client differently because his convictions are from another
      state[,] and . . . what he’s actually been convicted of would be
      equivalent to a [state-jail felony] here in Texas.

Outside of his objection to the charge on punishment, appellant did not present

any other requests, motions, or objections to preserve a constitutional complaint.

      By contrast, in his brief, appellant complains of four (two state and two

federal) constitutional violations.   As appellant failed to raise his federal due

process and his state constitutional claims at the trial level, we hold that he has

forfeited these claims. See Clark, 365 S.W.3d at 340.

      While appellant also never explicitly protested on equal protection grounds,

the objection to the charge on punishment suffices to preserve the argument. In

context, it appears that the parties understood appellant’s contention to be that

he faced a higher degree of punishment than that of a similarly situated Texas

criminal based solely on his state of residency at the time of his prior criminal

convictions. Cf. id. at 339 (noting that a non-specific error may be preserved for

review if the specific grounds are apparent from the context).            As such,

appellant’s as-applied equal protection challenge to the constitutionality of the

      9
       See U.S. Const. art. IV, § 1. Appellant does not cite this provision on
appeal.


                                         10
punishment enhancement statute has been properly preserved. See U.S. Const.

amend. XIV; State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013)

(“The Equal Protection Clause of the Fourteenth Amendment requires that ‘all

persons similarly situated shall be treated alike’ under the law.”) (quoting Wood v.

State, 18 S.W.3d 642, 651 n.9 (Tex. Crim. App. 2000)); Downs v. State, 244

S.W.3d 511, 518 (Tex. App.—Fort Worth 2007, pet. ref’d) (“To prevail on an

equal protection claim, the party complaining must establish two elements:

(1) the party was treated differently than other similarly situated parties; and (2)

the party was treated differently without a rational basis by the government.”).

        But the equal protection challenge cannot succeed under the facts of this

case.     While the Equal Protection Clause generally requires the same

governmental treatment for similarly situated persons, appellant has not proved

that he is similarly situated to someone who committed only a state-jail felony in

Texas. In other words, he has not established that his North Carolina convictions

would have qualified as Texas state-jail felonies.

        The judgments from appellant’s North Carolina cases reflect that he was

convicted of “BREAKING AND OR ENTERING” under section “14-54(A)” of that

state’s general statutes.   That section states today, as it did at the time of

appellant’s crimes, that any person “who breaks or enters any building with intent

to commit any felony or larceny therein shall be punished as a Class H felon.”

N.C. Gen. Stat. Ann. § 14-54(a) (West 2013) (emphasis added). In other words,

North Carolina provides the same level of classification and punishment for


                                        11
breaking and entering regardless of whether the crime is committed in a

residence. See id.

      In Texas, however, burglary (which includes entering a habitation or

building with intent to commit any felony) is a state-jail felony if committed in a

building other than a habitation but a second-degree felony (or in some cases a

first-degree felony) if committed in a habitation. 10 See Tex. Penal Code Ann.

§ 30.02(a)(1), (c), (d) (West 2011).     Thus, appellant’s breaking and entering

crimes in North Carolina could have qualified, if committed in Texas, as either

state-jail felonies (which cannot be used for enhancement under section 12.42(d)

of the penal code) or more serious felonies (which can be used), depending on

the facts of those crimes.    But the record does not disclose whether any of

appellant’s North Carolina breaking and entering convictions involved entering a

residence. 11 Thus, it is impossible to discern whether appellant, by effect of his

North Carolina convictions, is similarly situated with a Texas state-jail-felony

convict, who would not be subject to enhancement under section 12.42(d) of the




      10
       We disagree with appellant’s statement in the trial court that the Texas
and North Carolina statutes “seem[] to track” each other.
      11
        In the trial court, appellant appeared to recognize the need for developing
evidence of the facts surrounding his North Carolina offenses, stating, “If . . . the
North Carolina fact pattern for the offense . . . is the same exact fact pattern as
what in Texas would only be a [state-jail felony], then it will cause my client to be
enhanced by the word ‘felony’ and not by the actual offense committed.”


                                         12
penal code.    Therefore, his equal protection claim cannot succeed. 12        See

Downs, 244 S.W.3d at 518; Tucker v. State, 136 S.W.3d 699, 701 (Tex. App.—

Texarkana 2004, no pet.) (overruling an appellant’s equal protection argument

because, in part, the record did not indicate whether the appellant’s out-of-state

convictions involved burglary of a building or a habitation).         We overrule

appellant’s second point.

                                      Conclusion

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

                                                   /s/ Terrie Livingston

                                                   TERRIE LIVINGSTON
                                                   CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

DAUPHINOT, J., filed a dissenting opinion.

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

DELIVERED: September 4, 2014

      12
          We do not reach whether appellant could have succeeded on his equal
protection claim if he had proved that he was similarly situated with Texas state-
jail-felony convicts. We note, however, that the court of criminal appeals has
held that a conviction for a federal offense that would not be a felony under
Texas law may enhance a sentence under section 12.42. See Ex parte Blume,
618 S.W.2d 373, 374, 376 (Tex. Crim. App. 1981); see also Alvarado v. State,
596 S.W.2d 904, 906 (Tex. Crim. App. [Panel Op.] 1980) (concluding that a
felony conviction under a former penal code could be used for enhancement
even though the crime was not a felony under a new penal code); Dotson v.
State, 28 S.W.3d 53, 56–57 (Tex. App.—Texarkana 2000, pet. ref’d) (holding that
a Louisiana felony theft conviction could be used for enhancement although the
crime would have qualified only as a Class B misdemeanor in Texas).


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