                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-13-00466-CR


LONNIE CLIFTON COTHERN                                               APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


                                     ----------

      FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
                    TRIAL COURT NO. 1297383D

                                     ----------

                         MEMORANDUM OPINION 1

                                     ----------

      In two points, Lonnie Clifton Cothern contends that (1) because of a

variance between the indictment and proof at trial, the evidence is insufficient to

support the jury’s verdict finding him guilty of the state jail felony of theft of

property valued at $1,500 or more but less than $20,000 and (2) the trial court




      1
       See Tex. R. App. P. 47.4.
erred by instructing the jury on lesser-included offenses of theft of property of

lesser value. We affirm.

                                   Background

      A jury convicted appellant of the lesser-included offense of theft of property

of a value of $1,500 or more but less than $20,000 based on an indictment that

charged him with unlawfully appropriating “a metal manipulator” valued at

$20,000 or more but less than $100,000 with the intent to deprive Brad Peden,

the owner, of the property.     The trial court denied appellant’s motion for a

directed verdict based on his contention that the State had proven only that he

had stolen part of a steel welding manipulator and not a “metal manipulator” as

alleged in the indictment. The charge also used the term “metal manipulator”

and included, at the State’s request, the lesser-included offenses of theft of

property valued at $1,500 or more but less than $20,000, theft of $500 or more

but less than $1,500, and theft of $50 or more but less than $500. See Tex.

Penal Code Ann. § 31.03(e)(2)–(4)(A), (5) (West Supp. 2014).               Because

appellant raises a sufficiency argument in his first point, we will discuss the

evidence in more detail in our discussion of that point.

                  Variance Between Indictment and Evidence

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

that he stole a “metal manipulator” as alleged in the indictment because the

evidence shows only that he stole part of a welding manipulator, i.e., the arm and

saddle.


                                         2
Standard of Review and Applicable Law

      To determine whether the State has met its burden under Jackson v.

Virginia to prove a defendant guilty beyond a reasonable doubt, we compare the

elements of the crime as defined by the hypothetically correct jury charge to the

evidence adduced at trial. Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App.

2014). A hypothetically correct jury charge is one that “accurately sets out the

law, is authorized by the indictment, does not unnecessarily increase the State’s

burden of proof or unnecessarily restrict the State’s theories of liability, and

adequately describes the particular offense for which the defendant was tried.”

Id. (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). The

law as authorized by the indictment consists of the statutory elements of the

offense and those elements as modified by the indictment. Id.

      There are two types of variances in an evidentiary-sufficiency analysis:

material variances and immaterial variances. Id. at 9. Immaterial variances do

not affect the validity of a criminal conviction; thus, a hypothetically correct jury

charge need not incorporate allegations that would give rise to only immaterial

variances. Id. But a material variance renders a conviction infirm, and the only

remedy is to render an acquittal.      Id.   In assessing materiality, we ask two

questions: first, “whether the indictment, as written, informed the defendant of

the charge against him sufficiently to allow him to prepare an adequate defense

at trial” and, second, “whether prosecution under the deficiently drafted

indictment would subject the defendant to the risk of being prosecuted later for


                                         3
the same crime.” Daugherty v. State, 387 S.W.3d 654, 665 n.7 (Tex. Crim. App.

2013) (quoting Gollihar v. State, 46 S.W.3d 243, 248 (Tex. Crim. App. 2001)).

        A person commits theft if he or she unlawfully appropriates property with

the intent to deprive the owner of that property. Tex. Penal Code Ann. § 31.03(a)

(West Supp. 2014). The punishment range for theft varies depending on the

value of the stolen property. Id. § 31.03(e). The court of criminal appeals has

held,

        [A] theft conviction can never rest in whole or in part upon theft of
        property not alleged in the indictment as stolen. However, 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. . . . Likewise, the State
        should be allowed to plead all property which the evidence may
        ultimately prove stolen without thereby being required to prove theft
        of any larger quantum of property than the statute at issue requires.

Lehman v. State, 792 S.W.2d 82, 84–85 (Tex. Crim. App. 1990) (citation omitted)

(reviewing theft case in which multiple items were alleged to have been stolen

during a continuing course of conduct); see Tex. Code Crim. Proc. Ann. art.

21.09 (West 2009) (requiring indictment to include description of personal

property, if known). But when a discrepancy between the charging instrument

allegation and the proof of theft at trial is that of entirely different property, the

discrepancy is not merely a variance, it is a failure of proof. Byrd v. State, 336

S.W.3d 242, 258 (Tex. Crim. App. 2011).




                                          4
Evidence

      Brad Peden, the former vice president of ArcMaster Supply, testified that

on April 10, 2012, he arrived at work and saw that the back gate was open and

the padlock was gone. He next noticed that what he described as the company’s

“welding manipulator” was missing from the back yard.             When shown a

photograph of what the yard looked like on the day in question, he identified

scrape marks on the concrete pad where the manipulator had been stored; to

Peden, it indicated that the saddle part of it had been dragged. He described the

manipulator as having “an axis going up and down and an axis going horizontal,

and it can move up and down and in and out, and it holds a welding head out on

the end of it.” When asked if the “entire piece” of the equipment was on the

property that day, he answered, “No. Just the -- the horizontal arm that moved in

an out and the part we call the saddle that attaches the two pieces together.”

The other part of the equipment was stored with another company in Dallas.

Peden testified that he did not give anyone permission to remove the

“manipulator”––which he also described as a fourteen or fifteen foot telescoping

arm––and that he did not know appellant. When asked how he recognized “that

beam of your manipulator,” Peden answered,

      [I]t’s a very specific piece of equipment. It’s got V ways on it, on the
      top and lower, and it’s got a gear rack on it -- It’s telescoping, which
      makes it very unusual. You know, as far as -- [p]robably less than
      one in a hundred manipulators would have a telescope arm.




                                         5
      After Peden made a police report and sent a copy of a reward poster he

had made with a photograph of the arm to Officer Don Hawkins of the Fort Worth

Police Department, the officer called Peden to let him know he might have found

the arm at a local scrapyard. In the reward poster, Peden had described the item

as a “beam.” When Peden arrived at the scrapyard, he identified what he called

the manipulator as ArcMaster’s missing equipment. It had orange spray paint on

the beam, and appellant had brought it to the scrapyard on his trailer.

Throughout his testimony, Peden referred to the missing equipment as either the

“manipulator” or “manipulator arm”; however, on both direct and cross-

examination, he is clear that what was missing was the arm and saddle of a

larger piece of equipment.

      John Schak, a long-time employee of ArcMaster, testified that the missing

piece of equipment was the saddle and “long horizontal piece.” He also testified

that the stolen piece was made of metal. He had not seen a welding manipulator

operated before; he only knew what the stolen piece of equipment was called

because that is what he had been told.          However, he identified from a

photograph the same piece of equipment that Peden did as being the item

missing from ArcMaster’s yard.

      Officer Hawkins identified the missing equipment at a metal scrapyard

based on the description Peden gave him.        He confirmed that Peden had

identified the missing equipment at the scrapyard and that Peden had explained

to him that it was only part of a larger piece of equipment. Officer Hawkins also


                                       6
found a motor that was part of the larger manipulator on appellant’s property,

along with orange spray paint.

Analysis

      We conclude and hold that by charging appellant generally with theft of a

metal manipulator, the State necessarily charged appellant with theft of its

component parts. See Lehman, 792 S.W.2d at 84–85; cf. Uyamadu v. State, 359

S.W.3d 753, 758–59 (Tex. App.––Houston [14th Dist.] 2011, pet. ref’d) (holding

that value of “computer” alleged to have been stolen was not limited to hardware

only and included value of installed software); McClain v. State, No. 14-07-

00498-CR, 2008 WL 4911900, at *6 (Tex. App.––Houston [14th Dist.] Nov. 13,

2008, no pet.) (mem. op., not designated for publication) (holding that when

indictment alleged list of stolen property, State did not need to prove each item in

list was stolen); Mitchell v. State, No. 01-94-00403-CR, 1994 WL 575422, at *2

(Tex. App.––Houston [1st Dist.] Oct. 20, 1994, pet. ref’d) (not designated for

publication) (holding that State did not need to prove that appellant himself stole

twelve 12-packs of beer as charged when evidence showed that appellant was

part of a group and carried out at least two 12-packs). Accordingly, we conclude

and hold that there is not a variance between the indictment and the proof. 2


      2
       We note that the record contains testimony regarding the replacement
cost, original cost, and scrap value of the missing part of the manipulator. If the
State had proven only the value of the manipulator as a whole, the evidence
would not be sufficient as to the value element of the offense of theft for the
component part. See Tex. Penal Code Ann. § 31.03(e); Calton v. State, 176
S.W.3d 231, 235 (Tex. Crim. App. 2005) (noting that value of property stolen is

                                         7
      But even assuming there is a variance between the description of the

property in the indictment and the evidence at trial, it is immaterial. Nothing in

the record indicates that appellant did not know what the State was claiming he

stole or that he was misled by the allegation or surprised by the proof at trial.

See Gollihar, 46 S.W.3d at 258. In fact, appellant’s two defenses were that

(1) he was trying to sell a completely different type of equipment that belonged to

him and that he had kept on his property since 2003 and (2) the State did not

prove that the item Peden described as missing was made out of metal or

manipulated metal, that a metal manipulator is the same thing as a welding

manipulator, and that the item recovered at the scrapyard is the same item that

was missing from ArcMaster’s backyard. Thus, the issue at trial was whether the

State proved that the item Peden described as missing and identified on

appellant’s trailer at the scrapyard was the same item Officer Hawkins

discovered on appellant’s trailer at the scrapyard. See id.; see also Johnson v.

State, 364 S.W.3d 292, 296–99 (Tex. Crim. App.) (“The description of the item

taken in Gollihar—a go-cart with a certain model number—constituted a non-

statutory description of the gravamen element of property.       The question we

faced in Gollihar was whether the variance was significant enough that we could

not conclude that the State had proved the same theft—the stealing of the same

go-cart—as the one it had alleged.”), cert. denied, 133 S. Ct. 536 (2012).

element of offense of theft). But the State introduced evidence that Peden had
purchased the part at issue for $6,228.75.


                                        8
      The evidence shows that appellant and Peden had both sought return of

the same piece of equipment in a prior court proceeding and that appellant had

attended at least one hearing for that purpose. See Tex. Code Crim. Proc. Ann.

art. 47.01(a) (West 2006). Therefore, regardless of what the piece of equipment

was called––“metal manipulator,” “welding manipulator,” “telescoping arm,” or

“automatic bin retriever”––the evidence shows that both appellant and the State’s

witnesses were referring to the same item: the piece of equipment seized by

Officer Hawkins on appellant’s trailer at the metal scrapyard. It was within the

purview of the jury to believe either the State’s witnesses who testified that the

item belonged to Peden or appellant’s testimony that it belonged to him. See

Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs v. State, 434 S.W.3d

166, 170 (Tex. Crim. App. 2014).

      Moreover, considering the record as a whole, there is no danger of

appellant’s being prosecuted again for theft of the same item. See Gollihar, 46

S.W.3d at 258 (citing United States v. Apodaca, 843 F.2d 421, 430 n.3 (10th Cir.)

(holding that in event of subsequent prosecution, entire record of prior

proceeding may be considered to determine if double jeopardy bar applies), cert.

denied, 488 U.S. 932 (1988)).

      We overrule appellant’s first point. 3


      3
       Cf. Banks v. State, No. 01-11-00766-CR, 2014 WL 2767125, at *4 (Tex.
App.––Houston [1st Dist.] June 17, 2014, pet. ref’d) (mem. op., not designated
for publication) (holding that even if variance existed, it was immaterial because
appellant did not argue insufficient notice, her defense was that appropriation

                                          9
                     Lesser-Included Offense Instructions

      In his second point, appellant contends that the trial court erred by

instructing the jury on the lesser-included offenses of theft of property in differing

amounts. According to appellant,

      The trial court erred by charging the jury on all of the levels of theft
      because the value is not an element of the offense. The value of the
      stolen property is jurisdictional – it merely vests the court with
      jurisdiction. Therefore, it was improper for the trial court to instruct
      the jury on the various levels of theft because the value of the
      property determines which court has jurisdiction to hear the case,
      not whether the same or less than all of the facts required to
      establish the commission of the offense charged. The facts required
      to prove Third Degree Theft are entirely different than the facts
      required to prove State Jail, or Misdemeanor, Theft.

Therefore, appellant argues that the jury could not have rationally determined

that if he was guilty he was guilty only of theft of $1,500 or more but less than

$20,000, “[g]iven the numerous [other] estimates concerning the value of the

property.”

      Contrary to appellant’s jurisdictional argument, it is the presentment of the

indictment alleging a felony that vests the district court with jurisdiction. Tex.

Const. art. V, § 12(b). Once that jurisdiction attaches, the district court retains


was unintentional and result of mistake, and double jeopardy did not apply
because it was clear from a review of the entire record that what appellant stole
“is the same property as the ‘money’ described in the information as having been
misappropriated”); Duggan v. State, No. 01-90-00981-CR, 1992 WL 41691, at *2
(Tex. App.––Houston [1st Dist.] Mar. 5, 1992, pet. ref’d) (not designated for
publication) (holding that difference between testimony that stolen mullions were
about twelve feet long “give or take” and indictment which alleged they were
“twelve feet” long was immaterial).


                                         10
jurisdiction over any lesser-included offenses, even if they are misdemeanors.

Tex. Code Crim. Proc. Ann. art. 4.06 (West 2005); Golden v. State, 833 S.W.2d

291, 292 (Tex. App.––Houston [14th Dist.] 1992, pet. ref’d) (citing Mueller v.

State, 43 S.W.2d 589, 589–90 (Tex. Crim. App. 1931)).         The value of the

property stolen is an element of the offense of theft, which determines the grade

of the offense and range of punishment. See Calton v. State, 176 S.W.3d 231,

235 (Tex. Crim. App. 2005); Martinez v. State, 171 S.W.3d 422, 428 (Tex. App.—

Houston [14th Dist.] 2005, no pet.).   Accordingly, evidence that the property

stolen may have had a lesser value than that alleged in the indictment justified

the lesser-included offense instructions in this case. See Grey v. State, 298

S.W.3d 644, 645 (Tex. Crim. App. 2009) (holding that second prong of Rousseau

does not apply when State requests lesser-included instruction). We overrule

appellant’s second point.

                                  Conclusion

      Having overruled both of 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.

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

DELIVERED: May 7, 2015


                                       11
