Janice Bates v. State , 560 S.W.3d 332 ( 2018 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-16-00386-CR
JANICE BATES, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 181st District Court
Potter County, Texas
Trial Court No. 69,938-B, Honorable John B. Board, Presiding
January 18, 2018
OPINION
Before CAMPBELL and PIRTLE and PARKER, JJ.
Appellant, Janice Bates, appeals her conviction for the offense of theft1 and
resulting sentence of sixteen years’ imprisonment in the Texas Department of Criminal
Justice, Institutional Division, and $2,500 fine. We will affirm the judgment of the trial
court.
1 See TEX. PENAL CODE ANN. § 31.03 (West Supp. 2017).
Factual and Procedural Background
On December 23, 2014, appellant and a male entered the JCPenney store in
Westgate Mall. Appellant and the male went to a fitting room, which the male entered.
Appellant then walked around the store selecting clothing items, including a stack of Levi’s
jeans that she picked up without looking at their sizes or prices. Appellant took the clothes
to the male in the fitting room and handed them to him. After gathering some more items
from the store and taking them to the male in the fitting room, appellant eventually entered
the fitting room with the male. After about ten minutes, the couple emerged from the
fitting room. Appellant was carrying two full JCPenney bags. Appellant walked past the
cash registers and exited the store. A JCPenney loss prevention officer stopped appellant
outside of the store. After police were called, it was determined that appellant had $882
in JCPenney merchandise in her possession.
Appellant was indicted for the state jail felony offense of theft based on two prior
convictions for theft. See TEX. PENAL CODE ANN. § 31.03(e)(4)(D). The indictment alleged
that the offense occurred within Potter County. Immediately before trial was to begin, the
State moved to amend the indictment to specify that the offense was committed within
400 yards of Potter County. The trial court granted the motion but the indictment was not
physically altered to reflect the amendment.
During the ensuing trial, two employees of JCPenney testified that JCPenney at
Westgate Mall is split down the middle by the Potter and Randall county line and that the
entirety of JCPenney is within 400 yards of the county line. An Amarillo police officer
testified that, because the county line splits Westgate Mall, there is an agreement
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between the two counties that persons arrested at the mall are taken to the Potter County
Jail. When the jury was charged, it was instructed that it could consider Potter County to
include the first 400 yards of Randall County. The jury returned a verdict finding appellant
guilty “as alleged in the [i]ndictment.”
Just before the trial began, the State informed the trial court that it was seeking to
enhance appellant’s punishment by proof of two prior felony convictions. The State
informed the trial court that appellant was aware that the State was seeking
enhancement. Appellant did not object to this statement. After appellant was found guilty,
the State again addressed its intent to enhance appellant’s punishment. The State read
the enhancement allegations to the jury. In so doing, the State alleged that appellant had
“committed” one of the offenses and been convicted of the other.2 Appellant pled true to
the enhancement allegations. Based on appellant’s plea, the trial court instructed the jury
to return a punishment verdict finding the enhancement allegations to be true. The jury
returned a verdict sentencing appellant to sixteen years’ imprisonment and a $2,500 fine.
By her appeal, appellant presents four issues. By her first issue, she contends
that the State’s verbal amendment of the indictment to allege that the theft offense
occurred within 400 yards of Potter County was error that caused appellant some harm
and counsel should be excused from objecting to this error. By her second issue,
appellant contends that the oral amendment of the indictment addressed in her first issue
was error that caused her egregious harm. By her third issue, appellant contends that
her sentence was illegal because the State did not properly plead its enhancement
2 Certified copies of these convictions were admitted into evidence as impeachment evidence.
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allegations. By her fourth issue, appellant contends that her sentence was illegal because
the State alleged that she had only committed one of the prior felonies, rather than having
been convicted of it.
Venue Issues
By her first and second issues, appellant contends that the State’s verbal
amendment of the indictment altering the allegation that the theft offense occurred in
Potter County to allege that the offense occurred within 400 yards of Potter County was
reversible error whether counsel was excused from objecting to the jury charge or
whether assessed under the egregious harm standard.
Both of appellant’s first two issues are addressed to the jury charge. We review a
claim of jury charge error using the procedure identified in Almanza v. State, 686 S.W.2d
157, 171 (Tex. Crim. App. 1985), overruled on other grounds, Rodriguez v. State, 758
S.W.2d 787 (Tex. Crim. App. 1988). See Barrios v. State, 283 S.W.3d 348, 350 (Tex.
Crim. App. 2009). Using that procedure, we must first determine whether the charge was
in error. Id.; Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If the charge is
not in error, no further inquiry need be made. If there is error but the appellant did not
object to the error, reversal is required if the error caused appellant egregious harm.
Almanza, 686 S.W.2d at 171. Egregious harm occurs when the error affects the very
basis of the case, deprives the defendant of a valuable right, vitally affects a defensive
theory, or makes the case for conviction clearly and significantly more persuasive. Taylor
v. State, 332 S.W.3d 483, 490 (Tex. Crim. App. 2011). However, if there was error and
the appellant did object to that error, reversal is required if the error is calculated to injure
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the rights of the defendant, i.e., if there is some harm. Barrios, 283 S.W.3d 350; Almanza,
686 S.W.2d at 171. In either case, the degree of harm is determined in light of the entire
jury charge, the state of the evidence, including the contested issues and the weight of
the probative evidence, the argument of counsel, and any other relevant information
revealed by the record of the trial as a whole. Almanza, 686 S.W.2d at 171.
So, we must initially determine whether it was error for the trial court to charge the
jury that appellant should be found guilty if the jury determined that she committed the
offense of theft within 400 yards of Potter County when the indictment did not expressly
include such an allegation and when the State’s amendment of the indictment was not
reduced to writing on the indictment or a copy thereof. Texas Code of Criminal Procedure
article 13.04 provides that, “[a]n offense committed on the boundaries of two or more
counties, or within four hundred yards thereof, may be prosecuted and punished in any
one of such counties . . . .” TEX. CODE CRIM. PROC. ANN. art. 13.04 (West 2015). Further,
article 21.06 provides that, “[w]hen the offense may be prosecuted in either of two or more
counties, the indictment may allege the offense to have been committed in the county
where the same is prosecuted . . . .” Id. art. 21.06 (West 2009). An offense may be
alleged to have occurred in whichever county it is being prosecuted in so long as the
offense occurred within the county or within 400 yards of the county, and the indictment
does not need to specifically aver that the offense occurred within 400 yards of the county.
Rushing v. State, 546 S.W.2d 610, 611 (Tex. Crim. App. 1977). Consequently, the jury
charge’s instruction that venue extends to an offense committed within 400 yards of the
boundary of Potter County was a correct statement of the law governing the case. Thus,
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the jury charge was not in error. See Barrios, 283 S.W.3d at 350; Ngo, 175 S.W.3d at
743.
We overrule appellant’s first two issues.
Enhancement Issues
Appellant’s third and fourth issues contend that the means utilized by the State to
seek enhancement of appellant’s punishment based on her prior felony convictions were
improper. Her third issue contends that the enhancement allegations were not properly
pled by the State. Her fourth issue contends that the State’s oral reading of the
enhancement allegations alleged that appellant had only committed one of the offenses,
rather than having been convicted of the offense.
As a prerequisite to presenting a complaint for appellate review, an appellant must
have raised the issue at the trial court level stating the specific grounds for objection and
received an adverse ruling. TEX. R. APP. P. 33.1(a). A defendant’s entitlement to a
pleading of the State’s intent to enhance the defendant’s punishment by proof of prior
felony convictions is a right that must be specifically invoked or else it is forfeited. See
Nelson v. State, No. 06-09-00184-CR, 2010 Tex. App. LEXIS 4908, at *14-15 (Tex.
App.—Texarkana June 29, 2010, no pet.) (mem. op., not designated for publication);
Harris v. State, 204 S.W.3d 19, 27 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d).
In the present case, appellant did not object to the State’s announcement that it
was seeking to enhance appellant’s punishment due to two prior felony convictions. Prior
to the beginning of the trial, the State declared that it intended to enhance appellant’s
sentence based on prior felony convictions of which she had been notified. Appellant
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voiced no objection to this statement. At the beginning of punishment, the State again
indicated that it was seeking to enhance appellant’s punishment based on two prior felony
convictions, which it then read to the jury. In reading the enhancements, the State stated
that appellant had committed one of the offenses, rather than that she had been convicted
of the offense. At that time, not only did appellant not object but she actually pled true to
the enhancement allegations. Further, when she was sentenced to a term of confinement
that exceeded the range of punishment for the state jail felony for which she was
convicted and for a third-degree felony that would apply if she had only been previously
convicted of one prior felony, appellant raised no objection. Consequently, we conclude
that appellant did not preserve any error regarding the manner in which the State notified
appellant that it intended to use two prior felony convictions to enhance her punishment
to that of a second-degree felony.3 See Nelson, 2010 Tex. App. LEXIS 4908, at *14-15;
Harris, 204 S.W.3d at 27.
Additionally, appellant pled true to the enhancement allegations and evinced no
surprise or objection when the enhancements were discussed by the State. See Nelson,
2010 Tex. App. LEXIS 4908, at *15. Nothing in the record reflects that appellant’s defense
was impaired by the State’s late indication that it was seeking to enhance appellant’s
punishment under the habitual offender statute. Mares v. State, No. 05-14-00454-CR,
2015 Tex. App. LEXIS 5514, at *6-7 (Tex. App.—Dallas May 29, 2015, no pet.) (mem.
3 In addition to failing to object to the lack of enhancement pleading during the trial, appellant did
not file a motion for new trial raising the issue of the State having inadequately pled the enhancements or
using the “commission” of an offense for enhancement rather than a conviction. See Fairrow v. State, 112
S.W.3d 288, 293 (Tex. App.—Dallas 2003, no pet.) (reviewing claim that appellant did not receive written
notice of the State’s intent to enhance punishment under habitual offender statute even though appellant
did not object when the trial court notified him of the possibility that his sentence could be enhanced or
when he was actually sentenced because appellant timely filed a motion for new trial raising the issue).
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op., not designated for publication). When a defendant offers no defense to the
enhancement allegations and does not request a continuance to prepare a defense,
notice given at the beginning of the punishment phase satisfies due process. Villescas
v. State, 189 S.W.3d 290, 294 (Tex. Crim. App. 2006).
Conclusion
Having determined that the trial court did not err in charging the jury regarding the
appropriate venue applicable to the case and concluding that appellant failed to preserve
her issues regarding the use of two properly sequenced prior felony convictions to
enhance her punishment, we affirm the judgment of the trial court.
Judy C. Parker
Justice
Publish.
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