Rice v. State , 831 S.W.2d 599 ( 1992 )

OPINION

BURGESS, Justice.

A jury convicted appellant of burglary with intent to commit theft. The jury also found appellant to be an habitual offender and sentenced him to 99 years in the Institutional Division of the Texas Department of Criminal Justice. Appellant urges a single point of error.

The point alleges the burglary conviction is void because of double jeopardy. Appellant previously plead guilty and was convicted of theft. The information in that case alleged, in pertinent part: “[K]now-ingly and intentionally appropriate property, by acquiring and exercising control over property, to-wit: Radio Stereo, Stamps and Holder, Box of Pens, Calculator, Money Orders, Traveler’s Express, Personal Cheek ... without the effective consent of the owner [Luman Cox].... ”

The theft conviction was predicated on a stipulation of evidence signed by appellant. It read, in pertinent part:

On the 18th day of May A.D., 1990, in Liberty County, Texas, I did then and there knowingly and intentionally appropriate property, by acquiring and exercising control over property, to-wit: Radio Stereo, Stamps and Holder, Box of Pens, Calculator, Money Orders, Traveler’s Express, Personal Check # 2714, Ice Pick, Envelopes and Paper, Business Cards, One Can Beanee Weenee, One Coke, of the value of Two Hundred Dollars ($200.00) or more but less than Seven Hundred and Fifty Dollars (750.00) [sic], from Luman Cox, the owner thereof, without the effective consent of the owner and with the intent to deprive the owner of said property.

In this case, the indictment alleged, in pertinent part: “... intentionally and knowingly, without the effective consent of Lu-man Cox, the owner thereof, enter a building not then and there open to the public with the intent to commit theft....” Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990) and Ex parte Ramos, 806 S.W.2d 845 (Tex.Crim.App.1991) are the controlling authorities. They set up a “same conduct” test, not a “same evidence” test in analyzing double jeopardy questions. See Ex parte Thurmon, 822 S.W.2d 170 (Tex.App.—Houston [1st Dist.] 1991, no pet.). While the evidence in both cases was similar¹, the criminal conduct proved in the burglary prosecution was different from that proved in the theft prosecution.

In Grady, 495 U.S. at 523, 110 S.Ct. at 2094, 109 L.Ed.2d at 565-566, Mr. Justice Brennan stated:

By its own pleadings, the State has admitted that it will prove the entirety of the conduct for which Corbin was convicted — driving while intoxicated and failing to keep right of the median — to establish essential elements of the homicide and assault offenses. Therefore, the Double Jeopardy Clause bars this successive prosecution....

In this case, as in Ramos, we need not look to what the state will prove, but what they did prove. Since the state did not prove the entirety of the conduct for which Rice was previously convicted, neither Grady nor Ramos bar the subsequent burglary prosecution and conviction. Therefore, the judgment is affirmed.

AFFIRMED.

1 . The evidence was not identical because the state in the burglary trial did not prove the value of the items taken or that they were taken without the effective consent of the owner; essential elements of a theft case.