                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                         No. 07-13-00434-CR


                               DANIEL RAY GARCIA, APPELLANT

                                                   V.

                               THE STATE OF TEXAS, APPELLEE

                             On Appeal from the 242nd District Court
                                       Hale County, Texas
                Trial Court No. B19425-1303, Honorable Edward Lee Self, Presiding

                                        September 24, 2014

                                 MEMORANDUM OPINION
                       Before CAMPBELL and HANCOCK and PIRTLE, JJ.


       Appellant, Daniel Ray Garcia, was indicted for the offense of theft.1        A jury

convicted appellant of the indicted offense and sentenced him to nine months in a State

Jail Facility (SJF) and assessed a fine of $5,500. Appellant has perfected his appeal

and contends that (1) the evidence was insufficient to support the jury’s verdict, and (2)

the trial court committed reversible error in allowing evidence of an extraneous offense.

Disagreeing with appellant’s contentions, we will affirm.
       1
           See TEX. PENAL CODE ANN. § 31.03(a), (e)(4)(A). (West Supp. 2014).
                              Factual and Procedural Background


      The events leading to appellant’s indictment involve appellant’s purchase of parts

and labor for two semi-trucks from Tony Wilkins, doing business as WesTex Enterprises

in Plainview, Texas.2 The first purchase occurred October 26, 2012, and was for a total

of $2,237.57. This purchase was for a “wet kit,” which was described as a part of the

power take off (PTO) assembly on the semi-truck that allowed the driver to unload the

load being carried by the truck. In payment, appellant issued a check to WesTex for the

total amount of the purchase. The testimony at trial reveals that the check was a “hold

check,” meaning WesTex was to hold the check for 30 days. This agreement was

written on the invoice issued at the time of the transaction. During the trial, there was

disagreement as to when appellant was to have paid the amount of the invoice.

However, after the 30 day agreement had passed on December 12, 2012, Wilkins

caused the check to be deposited in his bank and it was returned “Non Sufficient

Funds.”


      Prior to the time the first check was deposited, on November 9, 2012, appellant

returned to WesTex to acquire a second PTO unit for a different truck. The total amount

of this transaction was $3,227.50. Appellant testified that Wilkins agreed to again hold

his check; however, Wilkins testified there was no agreement to hold the second check.

As opposed to the first invoice, the invoice for the second transaction contains no

notation that the check was to be held for any period of time prior to presentment for

payment. The check was deposited for collection and, on November 16, 2012, Wilkins

was notified that there were not sufficient funds in the account to cover the amount of

      2
          The offenses were aggregated pursuant to TEX. PENAL CODE ANN. § 31.09 (West 2011).

                                                  2
the second check. Wilkins testified that he attempted to contact appellant in an effort to

collect the funds owed on the second check. However, no payments were ever made

and, at trial, appellant testified that he had not paid anything on either check.


       On January 3, 2013, Wilkins had a demand letter sent to appellant demanding

payment for both checks within ten days.          Sometime in January, Wilkins spoke to

appellant, who agreed to make payments of $500 per week on the checks. However,

no payments were ever made to Wilkins. The checks were eventually forwarded to the

District Attorney’s office of Hale County for collection. A notice letter was sent by the

District Attorney’s office to appellant at 1108 14 th Street, Seagraves, Texas 79359. This

address was different from the address shown on the checks: P.O. Box 1192,

Seagraves, Texas 79359. The notice letter sent to appellant by the District Attorney’s

office required payment by February 19, 2013, or the matter would be presented to a

grand jury for consideration of an indictment.           No payments were made and

subsequently the instant indictment was returned against appellant.


       The indictment presented by the grand jury is for theft, “pursuant to one scheme

or course of conduct.” The total amount alleged in the indictment is for merchandise of

a value of $1,500 or more but less than $20,000.


       During the State’s presentation of evidence in their case-in-chief, Wilkins testified

about the events that resulted in accepting both checks.          As noted earlier, Wilkins

acknowledged that he agreed to hold the first check for 30 days before he would deposit

it for payment. When the first check was deposited, it was dated December 13, 2012.

Wilkins agreed that when the check was initially given to him, it did not have a date on



                                              3
it. Wilkins testified that he had no recollection of putting the date on the check before it

was deposited; yet, from the record, it is clear that Wilkins or a member of his office staff

must have dated the check.


       In regard to the second transaction, Wilkins was adamant that there was no

agreement to hold the check. His testimony was that he informed appellant that he had

to be paid and appellant told him that the check was “good to go.” Further, Wilkins

stated that, had there been any agreement regarding the second check, the agreement

would have been noted on the invoice. The invoice was introduced in evidence and

contained no notation that the check was to be held or that there was any agreement

regarding the check.


       At the conclusion of Wilkins’s testimony, the State called Stacy Potter, the chief

operating officer for First United Bank, the bank where appellant had his checking

account. Appellant objected to the State’s calling Potter as a witness because she was

not listed on the witness list provided by the State. After hearing arguments about the

matter, the trial court sustained the objection.     Following the trial court’s ruling, the

State rested its case-in-chief.


       Appellant then moved for an instructed verdict. The trial court denied the motion

for instructed verdict and appellant proceeded to introduce testimony.


       Appellant then testified in his own defense. Appellant maintained throughout that

he intended to pay for the parts and labor involved in both transactions. As to the first

check, appellant testified that he asked for time to get the money together for the first

“wet kit.” Further, appellant contends that there was no mention of holding the check for


                                             4
only 30 days, and that he did not see the notation on the bottom of the first invoice that

indicated the 30 day limit. Appellant’s testimony was that Wilkins would hold the check

until appellant started working and was able to make some money to pay for the parts.

Further, appellant agreed that he still owed Wilkins the money and had not made any

payments toward the amount owed on the first check.


       In regards to the second transaction, appellant testified that he told Wilkins he

had only hauled one load and did not have the money.            According to appellant’s

testimony, Wilkins agreed that he would hold the check and appellant could take care of

it and the first check when he got on his feet. At that time, appellant would clear up both

checks.


       Appellant further testified that he did not find out that both checks had been

returned for insufficient funds until sometime in early January 2013.        According to

appellant’s testimony, he never received the letter from the District Attorney’s office

advising him that both checks had been turned over to the District Attorney’s office for

collection or prosecution. In his testimony, appellant stated he found out about both

checks being returned for insufficient funds when Wilkins called him in early January

2013. At that time, he offered to pay $500 per week on the checks until they were paid.

Appellant testified that he owed the money to Wilkins and that he had no intent to

defraud Wilkins or pass him any bad checks when he presented the two checks to

Wilkins.


       During cross-examination, appellant admitted that his mailing address in

Seagraves was P.O. Box 1192, and that he regularly got mail at that address. Further,



                                            5
he testified that he checked the mail box on a routine basis. However, appellant denied

recalling that he received statements from his bank at that address.                        Specifically,

appellant denied receiving a notice in the middle of September that his account was

overdrawn. When asked if he was aware that the bank account in question had been

overdrawn continuously since September 9, 2012, appellant averred he was unaware of

that fact.


       Later, during further cross-examination of appellant, the State asked about his

previous conviction for theft of service by check.                  In that examination, the State

introduced State’s exhibit 6, a certified copy of a May 28, 2009 judgment revoking

community supervision for the offense of theft of service by check and sentencing

appellant to six months in the Gaines County Jail. Appellant’s trial counsel objected to

the exhibit on the basis of Texas Penal Code section 31.03(c)(1), and that the prior

offense in question was not a recent transaction and, therefore, not relevant to the trial.

See TEX. PENAL CODE ANN. § 31.03(c)(1).3 The trial court overruled the objection.


       Appellant then recalled Wilkins for further testimony. Wilkins testified that he

would consider it rare to hold a check or accept a post-dated check in payment for parts

and labor. When questioned about his affidavit to the District Attorney’s office, that the

check was presented to the bank within 30 days after receipt, Wilkins testified that it

was presented within 30 days after appellant had agreed to pay the check.                           Upon

reexamination by the State, Wilkins testified that any time he agrees to hold a check

there is a notation on the invoice, as shown on State’s exhibit 3, the first invoice. After

the State concluded its reexamination of Wilkins, appellant rested his case.

       3
           Further reference to the Texas Penal Code shall be by reference to “§ ____” or “section ____.”

                                                     6
       The State then called Stacy Potter, chief operations officer at First United Bank,

as a rebuttal witness. Appellant objected that Potter had not been listed as a witness in

discovery. The trial court overruled the objection, noting that Potter was being called as

a rebuttal witness.


       Potter testified that, as the chief operating officer for the bank, she was custodian

of the records. She identified S-1 and S-2, the checks at issue, as checks written on the

account of appellant. Potter testified that the address for the account those checks

were written on was P.O. Box 1192, Seagraves, Texas, and that all notices regarding

the account status were mailed to that address. Further, Potter said that when an

account goes into overdraft, the accountholder is notified via mail. A review of the

appellant’s account history showed that the account was in continual overdraft status

since September 5, 2012. The bank mailed four notices of overdraft status to the

account holder at the address indicated plus the account’s overdrawn status was noted

on bank statements that were generated during that time period. According to Potter,

the account was finally charged off on October 23, 2012.


       The State and appellant then closed the presentation of evidence. The trial court

presented a proposed court’s charge to counsel for each side. The State and appellant

voiced no objections to the trial court’s charge to the jury. Accordingly, the jury was

read the charge and final arguments were given.            Subsequently, the jury found

appellant guilty of the charge and, after hearing punishment evidence, assessed his

punishment at confinement in an SJF for nine months and a fine of $5,500.




                                             7
       Appellant has perfected his appeal and presents three issues for consideration.

By his first issue, appellant contends that the trial court erred in overruling his motion for

an instructed verdict. In his second issue, appellant contends that the evidence was

insufficient to support the jury’s verdict. In his third issue, appellant contends that the

trial court erred in admitting the evidence of the prior extraneous act. We will consider

appellant’s first and second issue together.


                        Instructed Verdict and Sufficiency of the Evidence


       At the close of the State’s case-in-chief, appellant moved for an instructed

verdict. The trial court denied the motion. Appellant contends that the trial court’s

denial was error. Appellant’s contention does not take into consideration the rule that a

motion for instructed verdict is actually a challenge to the sufficiency of the evidence.

See Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993). Accordingly, we will

proceed to consider all of the evidence in connection with appellant’s challenge to the

sufficiency of the evidence.


Standard of Review


       In assessing the sufficiency of the evidence, we review all 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 offense beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Brooks v. State,

323 S.W.3d 893, 912 (Tex. Crim. App. 2010). “[O]nly that evidence which is sufficient in

character, weight, and amount to justify a factfinder in concluding that every element of

the offense has been proven beyond a reasonable doubt is adequate to support a


                                               8
conviction.” Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We remain mindful

that “[t]here is no higher burden of proof in any trial, criminal or civil, and there is no

higher standard of appellate review than the standard mandated by Jackson.”             Id.

When reviewing all of the evidence under the Jackson standard of review, the ultimate

question is whether the jury’s finding of guilt was a rational finding. See id. at 906–07

n.26 (discussing Judge Cochran’s dissenting opinion in Watson v. State, 204 S.W.3d

404, 448–50 (Tex. Crim. App. 2006), as outlining the proper application of a single

evidentiary standard of review). “[T]he reviewing court is required to defer to the jury’s

credibility and weight determinations because the jury is the sole judge of the witnesses’

credibility and the weight to be given their testimony.” Id. at 899.


       As an appellate court we conduct our sufficiency review pursuant to a

hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.

App. 1997). Such a charge would accurately set forth the law, as authorized by the

indictment, but neither unnecessarily increases the State’s burden of proof nor

unnecessarily restricts the State’s theories of liability, yet adequately describes the

particular offense for which the defendant was tried. See id.


       A hypothetically correct charge requires the State to prove that 1) appellant, 2)

pursuant to one scheme or course of conduct, 3) unlawfully appropriated, 4)

merchandise of the value of $1,500 or more but less than $20,000, 5) from Tony

Wilkens, the owner, 6) without the effective consent of the owner, 7) by issuing or

passing checks when he did not have sufficient funds on deposit for payment.




                                             9
Analysis


       Appellant contends that, because the first check was a post-dated check, the

transaction was an extension of credit and, therefore, the appropriation of the property

was not unlawful. Appellant’s contention is grounded in the fact that Wilkins agreed to

hold the first check for 30 days. Accordingly, the act of holding the check is an act of

extending credit and, therefore, there can be no unlawful appropriation of Wilkins’s

property. Appellant then concludes that because the indictment alleged theft pursuant

to one scheme or course of conduct but proved only one check, the proof was

insufficient. See Geick v. State, 349 S.W.3d 542, 548 (Tex. Crim. App. 2011).


       The State counters that, while the check was post-dated, appellant knew he had

been overdrawn for an extended period of time and the entire episode was the

perpetration of deception on the owner. We need not rely upon the State’s theory for

the reasons stated below.


       For purposes of argument, we will accept appellant’s proposition that the first

check was simply an extension of a form of credit that will not support a theft conviction.

However, even accepting that proposition, it does not change the outcome of this

matter.


       We do not agree with appellant’s contention regarding the application of Geick.

Geick involved an indictment for theft that alleged that the appellant had appropriated

the property of the owner by deception. Id. at 543. There was no proof offered during

the trial as to how the appellant had acquired the bulldozer in question. When the case

was submitted to the jury, the application paragraph of the jury charge did not limit the


                                            10
conviction to the offense of theft by deception. Id. at 544. After reviewing the number of

different ways to commit the offense of theft, the Court of Criminal Appeals noted that,

in Geick, the State needlessly pleaded a more specific manner of commission of the

offense. Id. at 547. This then became the law as authorized by the indictment and,

accordingly, the law the State must prove. Id. at 548. Because there was no evidence

of deception, the State’s proof was insufficient. Id.


       We are not faced with the same conundrum that was present in Geick. The

manner and means alleged to commit the theft in question was “by issuing or passing

checks, when the defendant did not have sufficient funds in or on deposit” with the

bank. The indictment alleges a continuing scheme or course of conduct regarding theft

by issuance of an insufficient check. We, accordingly, have only one manner and

means of commission of the offense of theft. Instead, we have an aggregate amount

alleged to have been stolen of $1,500 or more but less than $20,000. The record

before this Court indicates that one check, S-1, was for $2,237.57, and that the second

check, S-2, was for $3,227.50. Thus, the total of the two checks was within the amount

alleged as stolen in the indictment; and, more importantly, both checks individually are

within the range.


       As the Court of Criminal Appeals stated in Lehman v. State, 792 S.W.2d 82, 84

(Tex. Crim. App. 1990), “once the defendant has been given proper notice that he must

prepare to defend himself against a charge that he has stolen a certain ‘bundle’ of

property, there is no reason that he should be acquitted if the evidence shows him guilty

of stealing enough of the ‘bundle’ to make him guilty of the offense charged.” The

purpose of the aggregation statute is to allow multiple thefts committed pursuant to a

                                             11
common scheme or continuing course of conduct to be considered together to

determine the grade of the offense. See § 31.09; De La Fuente v. State, 264 S.W.3d

302, 318 (Tex. App.—San Antonio 2008, pet. ref’d) (mem. op.). When the allegation is

theft of an aggregated amount pursuant to one scheme or continuing course of conduct,

the State need not prove theft of each individual item appropriated. See De La Fuente,

264 S.W.3d at 318 (citing Lehman, 792 S.W.2d at 84). The evidence is sufficient if the

State shows illegal appropriation of property sufficient to meet the aggregate value

alleged. See id. at 319. We, therefore, conclude that the evidence is sufficient to

support the jury’s verdict. Appellant’s first two issues are overruled.


                                   Extraneous Offense


       Appellant’s final issue contends that the trial court committed reversible error

when it admitted proof that he had been previously convicted for the offense of theft by

check during the guilt-innocence stage of the proceeding. We disagree for the reasons

set forth below.


       Prior to addressing appellant’s contentions regarding the propriety of the trial

court allowing proof of appellant’s prior conviction to come before the jury during the

guilt-innocence stage of the proceeding, we must address the State’s contention that

this issue has not been properly preserved for appeal. To address this issue, we turn to

the record of the trial.


       The record reflects that when the State first broached the subject of appellant’s

prior conviction for theft by check, trial counsel made the following objections to

introduction of the conviction:


                                             12
       Your Honor, first of all, I would object for two reasons, the first one being
       that the State, I do not believe, adequately provided me notice of this
       offense in violation of my motion in limine which was granted by the Court.
       Secondly, Your Honor, I believe that this information is so far remote in the
       past that it has no relevance or bearing on the current situation.

The trial court overruled the objections and the State again began questioning

appellant. After a few questions, the State offered S-6, a certified copy of a judgment

from the 106th District Court of Gaines County, Texas. Whereupon, appellant’s trial

counsel again urged his objection in the following language:


       I am going to renew my objection under Penal Code 31.03(c)(1) in that,
       again, this evidence is not a recent transaction and therefore it’s not
       relevant to these proceedings.

The trial court then overruled the objection. The Texas Penal Code section referred to

by trial counsel provides as follows:


       (c) For purposes of subsection (b):


                 (1) evidence that the actor has previously participated in recent
                 transactions other than, but similar to, that which the prosecution is
                 based is admissible for the purpose of showing knowledge or intent
                 and the issues of knowledge or intent are raised by the actor’s plea
                 of not guilty;
§ 31.03(c)(1).


       Appellant’s issue before this Court is couched in terms of Rule 404(b) of the

Texas Rules of Evidence. See TEX. R. EVID. 404(b).4 In reading appellant’s brief, it is

clear that the argument put forth is that, as to the extraneous evidence offered by the

State, its relevancy value was small when compared to the inflammatory or prejudicial




       4
           Further reference to the Texas Rules of Evidence shall be by reference to “Rule __.”

                                                     13
potential. Appellant’s trial objection was not a Rule 404(b) objection. It was a specific

objection under the Texas Penal Code.


      It is well settled that to preserve an issue for appeal, there must be a timely and

specific objection to the evidence. See TEX. R. APP. P. 33.1(a)(1)(A). Further, the

complaint on appeal must comport with the objection made at trial. See Yazdchi v.

State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014). In that connection, an objection

pursuant to one legal theory will not support an issue on a different legal theory on

appeal. Fabela v. State, 431 S.W.3d 190, 195 (Tex. App.—Amarillo 2014, pet. dism’d)

(citing Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990) (en banc)).


      The issue presented as appellant’s third issue was not properly preserved for

appeal. The trial court never had the opportunity to address any of appellant’s concerns

regarding Rule 404(b). Instead, the objection relied upon section 31.03(c)(1) for the

proposition that the extraneous offense was too remote. Accordingly, nothing has been

preserved for our consideration. TEX. R. APP. P. 33.1(a)(1)(A). Appellant’s third issue is

overruled.


                                       Conclusion


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




                                                Mackey K. Hancock
                                                    Justice


Do not publish.


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