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Date: 09-22-2020
Case Style:
Fred Loualex Rodgers v. The State of Texas
Case Number: 01-19-00181-CR
Judge: Evelyn V. Keyes
Court: Court of Appeals For The First District of Texas
Plaintiff's Attorney: Brian Marcus Middleton
Baldwin D. Chin
Jason J Bennyhoff
John J. Harrity III
Defendant's Attorney:
Free National Lawyer Directory
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Just Call 855-853-4800 for Free Help Finding a Lawyer Help You.
Description: Richmond, TX - Criminal Defense Lawyer, Theft of Property Valued between $100 and $750.
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The State charged appellant by information with the Class B misdemeanor
offense of theft of property valued between $100 and $750. The information stated:
Comes now the undersigned Assistant District Attorney of Fort Bend
County, Texas, on behalf of the State of Texas, and presents in and to
the County Court of Fort Bend County, Texas, that in Fort Bend
County, Texas, FRED LOUALEX RODGERS, hereafter styled the
Defendant, heretofore on or about November 13, 2018, did then and
there unlawfully appropriate property, to wit: food items, gloves, and
tools of the value of $100 or more but less than $750 from Walmart or
Christopher Caston, the owner thereof, without the effective consent of
the said owner and with the intent to deprive the owner of the property.
On January 2, 2019, shortly before trial, appellant moved to quash the
information, alleging that the information did not provide him with sufficient notice
such that he could form a defense. Specifically, he argued that the information
3
alleged that he stole “food items, gloves, and tools” from Wal-Mart, but Wal-Mart
“has all kinds of food items, gloves and tools in its possession.” He argued:
The Defendant has no way of knowing what food items, gloves, or tools
he is accused of stealing, and therefore, cannot prepare an adequate
defense. It could even be possible that different food items are alleged
as stolen, some in the same cart, some paid for and some allegedly
stolen. If the information is allowed to stand as worded, the Defendant
has no way of knowing what property he is accused of stealing, and
therefore, has no way of protecting himself against double jeopardy. If
he is found not guilty of some items, the State could merely re-file for
other items, without ever identifying which items each specific charge
is accusing him of stealing, thereby allowing the State to file the same
charge again and again in violation of his double jeopardy rights,
claiming they are charging for different items, or even the same items.
He requested that the trial court set aside the information.
The trial court held a pre-trial hearing on appellant’s motion to quash the
information. Appellant argued that the language on the face of the information was
too vague, noting that he had a shopping cart full of items at the Wal-Mart, and not
all of the items in his cart were alleged to have been stolen, but the indictment did
not specify which ones were alleged to have been stolen. The State argued that the
language in the information was specific enough to allege the stolen property, but it
also argued that, even if the language was not sufficiently specific, appellant had
adequate notice of what he was alleged to have stolen because the State provided
him the offense report and various surveillance videos which depicted the allegedly
stolen property and the property that appellant paid for at the Wal-Mart. Defense
counsel agreed that he had received the offense report and surveillance videos, but
4
he argued that the trial court could only consider the allegations on the face of the
information and could not look to extrinsic evidence in determining the sufficiency
of the information. The trial court denied appellant’s motion to quash the
information.
At trial, Patrick Morris testified that he was working as an asset protection
associate at a Wal-Mart store in Stafford, Texas, on November 13, 2018. Morris
observed a customer, later identified as appellant, in the automotive department of
the store with a shopping cart full of merchandise, a backpack, and Wal-Mart bags
resting on top of the cart. Appellant was with another man, who also had a shopping
cart full of merchandise. Morris saw appellant select two gloves, rip them apart so
that the tags—with the barcodes used to scan the items for purchase—fell on the
floor, and place the gloves on top of his cart. Morris collected the discarded tags and
followed appellant to the seasonal department. Appellant and his companion took
Wal-Mart shopping bags from their backpack and started putting merchandise into
the shopping bags.
Appellant did the same thing in the home décor section and in the men’s wear
section of the store before he went to the self-checkout area and met up with a
woman. In the self-checkout area, Morris saw appellant scan and purchase some of
the merchandise that was in his shopping cart, but he did not scan the merchandise
that was concealed in the Wal-Mart bags. The trial court admitted a surveillance
5
video from the Wal-Mart. Morris testified that the video showed appellant selecting
a pair of gloves, breaking the tag off, and placing the gloves in his cart. This video
did not show appellant at the self-checkout area.
Appellant and his two companions walked to the exit of the store, but after
they passed the door greeter, Morris approached them with another asset protection
associate, Christopher Caston. Morris asked all three of them to come with him and
Caston to their office, where the associates looked over the receipts and the barcodes
on each item in the respective shopping carts to determine what had been paid for
and what had not. Morris and Caston determined that all of the items in the woman’s
shopping cart had been paid for. When they looked through appellant’s cart, the
associates did not find any gloves in the Wal-Mart bags; instead, they found the
gloves in the backpack that appellant had been carrying with him.
Once Morris and Caston determined which items in appellant’s cart had not
been purchased, they took those items to Wal-Mart’s service counter and had a
separate receipt made up for these items so they could determine the price of the
merchandise that had not been purchased. Morris testified that this receipt contained
“a lot of items,” and that the items were “food stuff mostly,” plus a tool set and four
pairs of gloves. The receipts listed each item and listed the total amount of the items,
6
but the receipts did not list the prices of each specific item.2 The merchandise
appellant had concealed in the Wal-Mart bags and in his backpack totaled $244.99.
Christopher Caston testified that he became involved when appellant was still
at the self-checkout register finalizing the purchase of some of the items in his cart.
Caston and Morris waited until appellant and his companions were at the exit to the
store before they approached, introduced themselves, and explained why they were
stopping the group. Caston asked if anyone in the group had any unpaid merchandise
and “[t]hey did admit to having merchandise that was unpaid for.” He and Morris
then escorted the three individuals to the loss prevention office “for recovery and
identification.” Caston stated that he and Morris determined, after comparing the
items in the shopping cart and backpack to the items on the receipt appellant obtained
after making his purchases, that appellant had over forty items of unpaid
merchandise in his possession.
Stafford Police Department Officer R. Graves was dispatched to the WalMart, and he made contact with appellant, who was not cooperative and provided a
false name.3 Officer Graves was wearing a body camera while he interacted with
2 Defense counsel objected to the admission of these two receipts on the basis that
Morris did not create them and did not know “which values were applied to them.”
The trial court admitted the receipts over appellant’s objection.
3 At the time of this incident, appellant had two active warrants for his arrest. In
connection with his provision of a false name to Officer Graves, he was also charged
7
appellant, and the trial court admitted a recording of the footage from this camera.
Graves testified that Morris and Caston were visible on the body cam video
searching through the items that had been in appellant’s possession, determining
which had been paid for and which had not, and separating the items into piles based
on whether appellant had paid for the items. Morris and Caston did not immediately
find the gloves that Morris had seen appellant place in his cart. On the body camera
video, Graves told appellant, after he had read appellant the Miranda warnings, “I’m
going to find it anyway, if you tell me now, I’ll know.” Appellant told Graves that
he would find some gloves, and Graves pulled four pairs of gloves out of appellant’s
backpack. Graves testified that Morris and Caston provided him with two itemized
receipts detailing the items that appellant did not pay for.
The jury found appellant guilty of the Class B misdemeanor offense of theft
of property valued between $100 and $750. After the parties reached an agreement
concerning appellant’s punishment, the trial court sentenced appellant to fifty-nine
days’ confinement with credit for fifty-nine days served. Appellant filed a motion
for new trial, which was overruled by operation of law. This appeal followed.
with and convicted of failure to identify as a fugitive. Appellant’s appeal from that
conviction is pending in the Fourteenth Court of Appeals.
8
Sufficiency of the Evidence
In his first issue, appellant contends that the State failed to present sufficient
evidence that he committed theft. Specifically, appellant argues that the State did not
present sufficient evidence that he appropriated property or deprived the owner—
Wal-Mart—of use and enjoyment of the property because there was no evidence that
he left the Wal-Mart before being apprehended.
A. Standard of Review
When reviewing the sufficiency of the evidence, we view all of the evidence
in the light most favorable to the verdict to determine whether any rational fact finder
could have found the essential elements of the offense beyond a reasonable doubt.
See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Bohannan v. State, 546 S.W.3d
166, 178 (Tex. Crim. App. 2017). The jurors are the exclusive judges of the facts
and the weight to be given to the testimony. Bartlett v. State, 270 S.W.3d 147, 150
(Tex. Crim. App. 2008); see Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App.
2011) (stating that role of fact finder is “as the sole judge of the weight and
credibility of the evidence after drawing reasonable inferences from the evidence”).
The jury, as the sole judge of credibility, may accept one version of the facts and
reject another, and it may reject any part of a witness’s testimony. Rivera v. State,
507 S.W.3d 844, 853–54 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d); see
Bohannan, 546 S.W.3d at 178 (stating that fact finder has duty to resolve conflicts
9
in testimony, to weigh evidence, and to draw reasonable inferences from basic facts
to ultimate facts).
We may not re-evaluate the weight and credibility of the evidence or substitute
our judgment for that of the fact finder. Bohannan, 546 S.W.3d at 178; Williams v.
State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We resolve any inconsistences
in the evidence in favor of the verdict. Bohannan, 546 S.W.3d at 178; see also
Murray v. State, 457 S.W.3d 446, 448–49 (Tex. Crim. App. 2015) (“When the record
supports conflicting inferences, we presume that the factfinder resolved the conflicts
in favor of the verdict, and we defer to that determination.”). A criminal conviction
may be based on circumstantial evidence. Merritt v. State, 368 S.W.3d 516, 525
(Tex. Crim. App. 2012). Circumstantial evidence is as probative as direct evidence
in establishing guilt, and circumstantial evidence alone can be sufficient to establish
guilt. Temple v. State, 390 S.W.3d 341, 359 (Tex. Crim. App. 2013) (quoting Hooper
v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). “Each fact need not point
directly and independently to the guilt of the appellant, as long as the cumulative
force of all the incriminating circumstances is sufficient to support the conviction.”
Hooper, 214 S.W.3d at 13.
B. Analysis
To convict appellant of the offense of theft, as charged in the information, the
State was required to prove that he unlawfully appropriated property from Wal-Mart
10
or Christopher Caston—food items, gloves, and tools—that were valued between
$100 and $750, without the effective consent of the owner and with the intent to
deprive the owner of the property. See TEX. PENAL CODE ANN. § 31.03(a), (b)(1),
(e)(2)(A); Torres v. State, 466 S.W.3d 329, 334 (Tex. App.—Houston [14th Dist.]
2015, no pet.) (“An appropriation of property is unlawful if it is without the owner’s
effective consent.”); Hawkins v. State, 214 S.W.3d 668, 670 (Tex. App.—Waco
2007, no pet.) (“Theft has three elements: (1) an appropriation of property (2) that is
unlawful (3) and is committed with the intent to deprive the owner of the property.”).
The Penal Code defines “appropriate” to mean “to acquire or otherwise exercise
control over property other than real property.” TEX. PENAL CODE ANN.
§ 31.01(4)(B).
The gravamen of a theft offense is two pronged: “taking certain specified
property away from its rightful owner or depriving that owner of its use or
enjoyment.” Byrd v. State, 336 S.W.3d 242, 250–51 (Tex. Crim. App. 2011).
“Ownership and appropriation of property are both important.” Id. at 251. The Court
of Criminal Appeals has long held that “where the evidence shows there was a
reduction of the property to the control and manual possession of the defendant,
removal of the property from the premises is not necessary for commission of the
offense of theft.” Baker v. State, 511 S.W.2d 272, 272 (Tex. Crim. App. 1974); see
Hill v. State, 633 S.W.2d 520, 521 (Tex. Crim. App. 1981) (“[I]t is not essential that
11
the property be taken off the premises; it is instead only essential that the evidence
show an ‘exercise of control over the property,’ coupled with an ‘intent to deprive
the owner of the property.’”); see also State v. Ford, 537 S.W.3d 19, 24 (Tex. Crim.
App. 2017) (stating, in context of discussing whether officer had probable cause to
arrest defendant for theft, that court had recognized in Hill “that a customer of a store
can exercise control over property with an intent to deprive, even if the customer has
not yet left the store with the property”). “Removal of the object from its customary
location is sufficient to show such reduction to the control or manual possession as
is required.” Baker, 511 S.W.2d at 272. “[A]sportation—the act of carrying away or
removing property—is not an element of statutory theft.”4 Hawkins, 214 S.W.3d at
4 This Court and our sister intermediate courts have held, in several unpublished
memorandum opinions, that it is not necessary for the defendant to succeed in
carrying the stolen property away from the scene. See, e.g., Solis v. State, No. 08-
18-00101-CR, 2019 WL 3940961, at *8 (Tex. App.—El Paso Aug. 21, 2019, no
pet.) (mem. op., not designated for publication) (“Appellant’s argument below was
that she never left the store with either goods or money. Yet neither are required for
a complete theft.”); Alexander v. State, No. 01-18-00496-CR, 2019 WL 3121859,
at *4 (Tex. App.—Houston [1st Dist.] July 16, 2019, no pet.) (mem. op., not
designated for publication) (holding, in “bank jugging” case, that evidence was
sufficient to support finding that defendant unlawfully appropriated property when
he tried to remove bag holding money from seat of car but could not successfully
flee scene with bag because it was attached to car with steel cable); Willis-Webb v.
State, No. 01-15-00727-CR, 2016 WL 6277423, at *4 (Tex. App.—Houston [1st
Dist.] 2016, pet. ref’d) (mem. op., not designated for publication) (holding, in
revocation of community supervision case, that evidence was sufficient to show
defendant committed theft from Wal-Mart when he was stopped by loss prevention
officer inside vestibule to store and defendant abandoned unpaid-for merchandise
and fled scene); Hicks v. State, No. 12-13-00158-CR, 2014 WL 1922619, at *3 (Tex.
App.—Tyler 2014, no pet.) (mem. op., not designated for publication) (holding, in
theft case, that defendant was not entitled to lesser-included offense instruction on
12
670; see Barnes v. State, 513 S.W.2d 850, 851 (Tex. Crim. App. 1974) (“Having
taken possession and control of the automobile by entering it and starting the motor,
with his hands on the steering wheel, with the obvious intent to drive it away, the
taking was complete although appellant was interrupted before he had time to
abscond with it.”).
Appellant contends that the State presented insufficient evidence to support
his conviction for theft because he “never made it out of the Wal-Mart” and “the
testimony is unclear how far Appellant made it with the items or if he even proceeded
past a register.” The State argues that a person can commit theft without completely
leaving the store. We agree with the State.
Patrick Morris, an asset protection associate at the Wal-Mart store, testified
that he observed appellant and another man in the automotive department of the store
with a shopping cart full of merchandise, a backpack, and several Wal-Mart
shopping bags. He witnessed appellant select a pair of gloves, rip the tags off of the
gloves, and place the gloves on top of his cart. He followed appellant to the seasonal
department where he saw appellant take Wal-Mart bags from his backpack and start
putting the merchandise into the bags. Morris saw appellant do the same thing in two
other departments in the store.
attempted theft when defendant placed jewelry inside her purse, but removed
jewelry before leaving store after being confronted by manager and security officer).
13
In the self-checkout area of the store, Morris saw appellant scan and pay for
some of the merchandise that was located in his shopping cart, but appellant did not
scan or pay for the items he had placed in the Wal-Mart bags. Morris testified that
he waited until appellant had left the self-checkout area and passed the door greeter,
an area past all “points of sale” in the Wal-Mart, and was walking to the exit before
he and Christopher Caston, another asset protection associate, stopped appellant and
asked to speak with him. In their office, Morris and Caston examined the receipt that
appellant had received from his purchase and compared it to the items appellant had
in his possession. Appellant and his companion admitted to Caston that they had
unpaid-for merchandise in their possession, and appellant told Officer Graves that
he would find gloves in his backpack. Morris and Caston searched appellant’s cart,
the Wal-Mart bags, and his backpack and determined that appellant had over forty
items in his possession that he had not paid for, including food items, four pairs of
gloves, and a tool set. An associate scanned these items and determined that the value
of the unpaid-for merchandise was $244.99.
Although appellant did not leave the Wal-Mart before he was confronted by
Morris and Caston, this does not mean that the State failed to present sufficient
evidence that appellant appropriated the stolen property. Morris and Caston both
testified that appellant had passed all “points of sale” and was at the exit to the store
when they stopped him. By concealing items in Wal-Mart shopping bags and failing
14
to pay for those items, appellant exercised control over the property and reduced it
to his possession. See Hill, 633 S.W.2d at 521 (holding that, in theft case, it was not
essential that property be taken off premises; instead, essential element of offense
was that defendant exercised control over property coupled with intent to deprive
owner of property); Baker, 511 S.W.2d at 272 (“[W]here the evidence shows there
was a reduction of the property to the control and manual possession of the
defendant, removal of the property from the premises is not necessary for
commission of the offense of theft.”); Hawkins, 214 S.W.3d at 670
(“[A]sportation—the act of carrying away or removing property—is not an element
of statutory theft.”).
Considering the evidence in the light most favorable to the verdict, we
conclude that the State presented sufficient evidence from which the jury could
determine, beyond a reasonable doubt, that appellant unlawfully appropriated
property from the Wal-Mart. See TEX. PENAL CODE ANN. § 31.03(a), (b)(1);
Hawkins, 214 S.W.3d at 670 (“Theft has three elements: (1) an appropriation of
property (2) that is unlawful (3) and is committed with the intent to deprive the
owner of the property.”). We hold that the State presented sufficient evidence to
support appellant’s conviction for theft.
We overrule appellant’s first issue.
15
Motion to Quash the Information
In his second issue, appellant contends that the trial court erred by denying his
motion to quash the information because the information did not specifically
describe the items that appellant was alleged to have stolen and, as a result, he did
not receive adequate notice to prepare a defense.
The sufficiency of a charging instrument is a question of law. Hughitt v. State,
583 S.W.3d 623, 626 (Tex. Crim. App. 2019). We therefore review a trial court’s
decision to deny a motion to quash an information under a de novo standard.
Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007); Williams v. State,
499 S.W.3d 498, 499 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d); see State v.
Castorena, 486 S.W.3d 630, 632 (Tex. App.—San Antonio 2016, no pet.) (stating
that when resolution of question of law does not depend on credibility and demeanor
of witnesses, trial court is in no better position than appellate court to make
determination, and de novo review is appropriate).
Both the United States and the Texas Constitution provide that a criminal
defendant has the right to notice of the charges brought against him. State v. Moff,
154 S.W.3d 599, 601 (Tex. Crim. App. 2004); see U.S. CONST. amend. VI (“In all
criminal prosecutions, the accused shall enjoy the right . . . to be informed of the
nature and cause of the accusation . . . .”); TEX. CONST. art. I, § 10 (“In all criminal
prosecutions the accused . . . shall have the right to demand the nature and cause of
16
the accusation against him, and to have a copy thereof.”). Thus, the charging
instrument—in this case, the information—must be specific enough to inform the
accused of the nature of the accusation against him so that he may prepare a defense.
Moff, 154 S.W.3d at 601; see State v. Barbernell, 257 S.W.3d 248, 250 (Tex. Crim.
App. 2008).
The Code of Criminal Procedure also contains several provisions that provide
guidance with respect to the specificity of an information. An information should
state everything “which is necessary to be proved.” See TEX. CODE CRIM. PROC.
ANN. art. 21.03 (providing such with respect to indictments); id. art. 21.23 (“The
rules with respect to allegations in an indictment and the certainty required apply
also to an information.”). The information must be certain enough “such as will
enable the accused to plead the judgment that may be given upon it in bar of any
prosecution for the same offense.” See id. art. 21.04. And the information shall be
sufficient if it
charges the commission of the offense in ordinary and concise language
in such a manner as to enable a person of common understanding to
know what is meant, and with that degree of certainty that will give the
defendant notice of the particular offense with which he is charged, and
enable the court, on conviction, to pronounce the proper judgment . . . .
Id. art. 21.11.
Generally, a charging instrument that tracks the language of the applicable
statute will satisfy constitutional and statutory notice requirements. Hughitt, 583
17
S.W.3d at 626; Moff, 154 S.W.3d at 602. When a statute defines the manner or means
of commission of an offense in several alternative ways, the charging instrument
fails for lack of specificity if it does not identify the specific statutory means. Curry
v. State, 30 S.W.3d 394, 398 (Tex. Crim. App. 2000). The State is not required to
plead “evidentiary matters” in the charging instrument. Id. In some cases, however,
a charging instrument that tracks the statutory language may be insufficient to
provide a defendant with adequate notice. State v. Zuniga, 512 S.W.3d 902, 907
(Tex. Crim. App. 2017); Barbernell, 257 S.W.3d at 251. This is the case “when the
statutory language fails to be completely descriptive.” Zuniga, 512 S.W.3d at 907;
State v. Mays, 967 S.W.2d 404, 407 (Tex. Crim. App. 1998) (“A statute which uses
an undefined term of indeterminate or variable meaning requires more specific
pleading in order to notify the defendant of the nature of the charges against him.”).
In this case, “more particularity is required to provide adequate notice.” Zuniga, 512
S.W.3d at 907.
We engage in a two-step analysis when analyzing whether an indictment
provides adequate notice. Id. First, we must identify the elements of the offense. Id.
Second, we must consider whether the statutory language is sufficiently descriptive
of the charged offense. Id. In this case, appellant focuses on the second step of the
analysis, contending that the allegation in the information that he appropriated “food
18
items, gloves, and tools” was not sufficiently descriptive to give him adequate notice
of the offense with which he was charged such that he could prepare a defense.
Code of Criminal Procedure article 21.09 provides that, “[i]f known, personal
property alleged in an indictment shall be identified by name, kind, number, and
ownership.” TEX.CODE CRIM. PROC. ANN. art. 21.09. The Court of Criminal Appeals
has held that “a descriptive averment of personal property is adequate if it alleges
(1) quantity; (2) the general type of property, as long as it is more specific than
merely stating ‘property’ or ‘merchandise;’ (3) ‘ownership’ of the property; and
(4) if necessary, the jurisdictional value of the property.” Wood v. State, 632 S.W.2d
734, 736 (Tex. Crim. App. 1982); see Gollihar v. State, 46 S.W.3d 243, 258 (Tex.
Crim. App. 2001) (“‘Number,’ within the meaning of [article 21.09], has been
interpreted to mean quantity.”).
“A ground for an exception to the form of an indictment exists if the
indictment fails to allege facts sufficient to give the defendant notice of the precise
offense with which he is charged.” Sanchez v. State, 120 S.W.3d 359, 367 (Tex.
Crim. App. 2003); Valero Ref.-Tex. L.P. v. State, 203 S.W.3d 556, 564 (Tex. App.—
Houston [14th Dist.] 2006, no pet.) (“When the State fails to allege facts sufficient
to give a defendant notice of the precise offense charged and to bar subsequent
prosecutions for the same offense, the defect is one of form.”).
19
Under Code of Criminal Procedure article 21.19, even when there is a showing
that the trial court erred by refusing to quash an indictment based on a defect in form,
we may affirm the conviction “as long as the defect did not prejudice the defendant’s
substantial rights.” Sanchez, 120 S.W.3d at 367; TEX. CODE CRIM. PROC. ANN. art.
21.19 (“An indictment shall not be held insufficient, nor shall the trial, judgment or
other proceedings thereon be affected, by reason of any defect of form which does
not prejudice the substantial rights of the defendant.”). The first step of a harm
analysis under article 21.19 is to determine whether the indictment “failed to convey
some requisite item of ‘notice.’” Sanchez, 120 S.W.3d at 367 (quoting Adams v.
State, 707 S.W.2d 900, 903 (Tex. Crim. App. 1986)). If the indictment did not give
sufficient notice, “the next step is to decide whether in the context of the case, this
had an impact on the defendant’s ability to prepare a defense, and, finally, how great
an impact.” Id. (quoting Adams, 707 S.W.2d at 903). We consider the entire record
in making this determination. Adams, 707 S.W.2d at 903.
Assuming, without deciding, that the information in this case failed to
sufficiently describe the items that appellant allegedly appropriated from Wal-Mart
and did not provide him with notice, we conclude that any error in denying his
motion to quash did not prejudice his substantial rights and, therefore, did not cause
him harm. See Sanchez, 120 S.W.3d at 367; TEX.CODE CRIM. PROC. ANN. art. 21.19.
20
At the hearing on appellant’s motion to quash, the State first argued that the
information itself provided sufficient notice to appellant, but it also argued that, even
if the trial court found that the allegations on the face of the indictment were not
sufficient to provide notice, the State had given defense counsel a copy of the offense
report,5 which itemized the list of items appellant allegedly stole, as well as turned
over the surveillance video and Officer Graves’s body camera video, which showed
Morris and Caston reviewing appellant’s receipt, determining which items appellant
paid for and which items he did not pay for, and dividing these items into separate
piles. The State thus argued that, when considering the offense report and the video
recordings, appellant had sufficient notice of what he was alleged to have stolen
from Wal-Mart. Defense counsel agreed that he had been given a copy of the offense
report and that he had seen the video recordings, but he argued that, in determining
whether a charging instrument provides sufficient notice to prepare a defense, the
trial court could only look to the face of the charging instrument itself and could not
look to offense reports or other extrinsic evidence.
Appellant was charged in a one-count information with theft of “food items,
gloves, and tools,” valued between $100 and $750, from Wal-Mart on or about
November 13, 2018. Defense counsel acknowledged that he received a copy of the
offense report, and he did not challenge the State’s assertion that the offense report
5 The offense report is not part of the appellate record.
21
contained an itemized list of the merchandise that appellant allegedly did not pay for
at the Wal-Mart. Defense counsel also acknowledged that he received a copy of a
Wal-Mart surveillance video and Officer Graves’s body camera video, the latter of
which depicted Morris and Caston examining appellant’s receipt and sorting which
items appellant had paid for and which he had not.
During trial, Morris testified concerning his investigation of appellant,
including his observation of appellant removing tags from a pair of gloves,
concealing items in Wal-Mart shopping bags, and not scanning those items in the
shopping bags for purchase at the self-checkout while appellant did scan and
purchase other items. After Morris and Caston stopped appellant, they took him to
their office where they used the receipt that he received from his purchase to
determine which items in his shopping cart he had paid for and which he had not.
Morris and Caston separated these items into separate piles, and their actions were
depicted on Officer Graves’s body camera, which the State disclosed to appellant
pre-trial. Morris and Caston then took the items that they had determined were not
on appellant’s receipt, and therefore were not purchased, to a customer service
representative who scanned these items to determine the total value of the unpaidfor merchandise. Two receipts were generated—one of which listed forty-three food
items and the toolset and the other of which listed four pairs of gloves—and Morris
and Caston determined that the value of these items totaled $244.99. These receipts
22
stated the total value of the items, but they did not list specific prices for each
individual item.
During trial, defense counsel cross-examined Morris concerning Wal-Mart’s
policy of not approaching a suspected shoplifter until after the person had passed the
last point of sale and whether Morris had a quota for apprehending shoplifters that
he was required to meet. Defense counsel also questioned Morris about whether the
self-checkout area was under video surveillance, and Morris responded that it was.
Morris agreed with defense counsel that no one asked him to produce a video
recording of appellant at the self-checkout area. Defense counsel did not crossexamine Caston. Counsel cross-examined Officer Graves about whether, in
shoplifting cases, pictures are typically taken of the allegedly stolen merchandise,
and Graves testified that, normally, Wal-Mart employees take such pictures, which
becomes a part of the police offense report. Graves also agreed with defense counsel
that usually there is a surveillance video of activity occurring at the registers, but he
did not ask Morris or Caston for video of appellant at the self-checkout area. Graves
also agreed that he played no role in determining which items were paid for versus
which items were stolen or the value of the items allegedly stolen and that he would
not be able to testify concerning the value of the items.
During closing argument, defense counsel focused on determining the value
of the items allegedly stolen, stating that the prosecutors did not bring a witness to
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testify concerning the value of the items to Wal-Mart or how those values were
determined; instead, the State relied on Morris’s testimony concerning what the
receipts listed as the total value of the items. Defense counsel also argued that Morris
testified that he saw appellant conceal merchandise but could not remember every
item allegedly stolen, and the specific items allegedly stolen were not brought before
the jury. Counsel stated:
We don’t know what specific items were there. We don’t have pictures
of them. So, if [Morris] can’t say what specific items were there, how
can we just rely on some random receipts or anything else, right? That’s
a leap. That leap is reasonable doubt; and if you don’t listen to that leap
and you don’t understand that leap, then you’re not holding the State to
their burden.
Defense counsel also faulted the State for failing to call appellant’s companions as
witnesses. Counsel further argued that the jurors could find reasonable doubt if they
did not believe the State proved that the value of the items was at least $100, if they
needed to see the surveillance video of the self-checkout area, or if they did not
believe Wal-Mart had actually suffered a loss.
We conclude that, despite the information’s failure to specifically describe
each item that appellant allegedly appropriated from Wal-Mart, appellant had
adequate notice through the pre-trial disclosures of the offense report and the video
recordings. Appellant challenged Morris and Caston’s value determination at trial,
and he argued that reasonable doubt existed concerning whether the value of the
items was over $100, pointing out that Morris and Caston had no role in determining
24
the value of the items, the State failed to request or provide surveillance video of
appellant at the self-checkout area, and the State did not present pictures of the items
allegedly stolen, instead relying on Morris and Caston’s testimony and the receipts
that were admitted. We conclude that, in the context of the record as a whole, the
failure of the information to specifically describe each item did not impact
appellant’s ability to prepare a defense. See Sanchez, 120 S.W.3d at 367; Adams,
707 S.W.2d at 903. We hold that any error in the trial court’s denial of appellant’s
motion to quash did not prejudice appellant’s substantial rights and, therefore, does
not constitute reversible error. See Sanchez, 120 S.W.3d at 367; TEX. CODE CRIM.
PROC. ANN. art. 21.19 (“An indictment shall not be held insufficient, nor shall the
trial, judgment or other proceedings thereon be affected, by reason of any defect of
form which does not prejudice the substantial rights of the defendant.”).
We overrule appellant’s second issue.
Outcome: We affirm the judgment of the trial court.
Plaintiff's Experts:
Defendant's Experts:
Comments: