Vernon Walker v. State of Texas--Appeal from County Court at Law No 1 of Bexar County

No. 04-01-00354-CR
Vernon WALKER,
Appellant
v.
The STATE of Texas,
Appellee
From County Court at Law No.1, Bexar County, Texas
Trial Court No. 750368
Honorable Al Alonso, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Alma L. L pez, Chief Justice

Paul W. Green, Justice

Phil Hardberger, Chief Justice, Retired (1)

Delivered and Filed: February 12, 2003

AFFIRMED

Having considered appellant's petition for discretionary review, the opinion and judgment issued December 18, 2002, are withdrawn and the following is substituted. Vernon Walker was charged with the class A misdemeanor of theft of property with a value of $500-$1500. Following a jury trial, he was found guilty of the lesser included offense of theft of property with a value of $50-$500, a class B misdemeanor. He was sentenced to 180 days in jail, probated for twelve months, and fined $2000. (2) Walker raises three issues on appeal.

Background

Walker was charged by information with stealing approximately $600 worth of clothing from a Foley's department store in north San Antonio. On March 12, 2000, a store security employee, Rudy Prieto, noticed Walker acting in a suspicious manner, selecting items quickly without checking tags. Prieto began to watch Walker on the in-store surveillance system, monitoring the register where Walker went to pay for several items he had selected. Once Walker had paid, Prieto followed him out of the store and apprehended him. Although there was some discrepancy regarding the method of payment and a voided transaction, Walker was carrying twenty-five items of clothing worth approximately $600 when he left the store. The receipt in his possession indicated that Walker had paid for only fifteen items of clothing, a total of $352.23. Walker was subsequently charged with theft.

Discussion

In his first two issues, Walker claims the evidence presented by the State is legally insufficient to establish the identity of the owner of the property as charged, because the information was not properly amended under the Texas Constitution and the Texas Code of Criminal Procedure. Tex. Const. art. I, 10; Tex. Code Crim. Proc. Ann. 28.10, 28.11 (Vernon Supp. 2003).

On the day of trial, but prior to the actual commencement of the trial, the court granted the State's motion to amend the information by substituting the name "Rudy Prieto" for the name "Steve Grimsley" as the owner of the stolen property. The State had previously filed a motion to amend the information, laying out the text of the information and the text of the proposed amendment. The court noted the substance of the amendment, namely, that the owner of the property was now listed as Rudy Prieto, on the record. Walker offered no objection to either form or substance of the amendment. He also affirmatively waived his right to a continuance.

In his second issue, Walker contends the amendment was ineffective because the court failed to take the proper steps necessary to effectively amend a charging instrument under the Texas Constitution and the Texas Code of Criminal Procedure. Tex. Const. art. I, 10; Tex. Code Crim. Proc. Ann. 28.10, 28.11 (Vernon Supp. 2003). Article 28.10(a) provides that a matter of form or substance in an indictment or information may be amended, over the objection of the defendant, at any time before the date the trial on the merits commences as long as the defendant is afforded ten days to respond to the amended instrument if so requested. Article 28.10(b) provides that a matter of form or substance in an indictment or information may be amended after trial on the merits commences if the defendant does not object.

However, article 28.10 does not make mention of an instrument being amended on the day the trial commences, before trial actually begins. In State v. Murk, the Texas Court of Criminal Appeals held that the State is not permitted to amend an indictment or information on the day of trial before the trial commences. 815 S.W.2d 556, 558 (Tex. Crim. App. 1991); State v. Sodipo, 815 S.W.2d 551, 556 (Tex. Crim. App. 1990). Under the court's decision in Murk, the trial court here has committed error in granting the State's motion to amend. See Murk, 815 S.W.2d at 558.

In order to complain of a defect of form or substance, however, an appellant must object to the defect at trial. Murk, 815 S.W.2d at 557; Hoitt v. State, 30 S.W.3d 670, 674 (Tex. App.--Texarkana 2000, writ ref'd). Failure to allege an element of an offense in an indictment or information is a defect of substance. Studer v. State, 799 S.W.2d 263, 268 (Tex. Crim. App. 1990). Under Texas Penal Code 31.03(a), a person commits the offense of theft if he unlawfully appropriates property with intent to deprive the owner of the property. Tex. Pen. Code Ann. 31.03(a) (Vernon Supp. 2003). The appropriation is considered unlawful if it is without the owner's effective consent. Tex. Pen. Code Ann. 31.03(b)(1) (Vernon Supp. 2003). Because the owner's consent or lack thereof is an essential element of the offense of theft, the failure to allege the proper owner of the property taken is a defect of substance. See Studer, 799 S.W.2d at 268. At the time of the attempted amendment, Walker failed to object, thereby waiving the right to raise the issue on appeal. Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon Supp. 2003); Murk, 815 S.W.2d at 557-558; Hoitt, 30 S.W.3d at 674. Because Walker failed to object to the trial court granting the State's motion to amend the information, there is nothing preserved for review. Walker's first point of error is overruled.

In his second issue, Walker contends that the evidence provided by the State is legally insufficient to support his conviction. The information, as amended, listed Rudy Prieto, a loss prevention manager employed by Foley's department store at the time of the incident, as the owner of the property. The State presented the testimony of Prieto at trial. Prieto testified that, as an employee of Foley's, he had a greater right to possession of the items in question than did Walker. Applying the traditional standard applicable to sufficiency of the evidence review, we find Prieto's testimony, in addition to other evidence introduced by the State, is legally sufficient to support Walker's theft conviction. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Young v. State, 14 S.W.3d 748, 753 (Tex. Crim. App. 2000). We overrule Walker's second issue.

In his third issue, Walker asserts the trial court erred in denying his first amended motion for new trial. Tex. Code Crim. Proc. Ann. art. 40.001 (Vernon Supp. 2003). In order to be entitled to a new trial on the basis of newly discovered evidence, a movant must show: (1) the newly discovered evidence was unknown to him at the time of trial; (2) the failure to discover the evidence was not due to his want of diligence; (3) the evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and (4) the evidence is probably true and would probably bring about a different result in another trial. Moore v. State, 882 S.W.2d 844, 849 (Tex. Crim. App. 1994); Tuffiash v. State, 948 S.W.2d 873, 879 (Tex. App.--San Antonio 1997, pet. ref'd). The trial court's order denying a motion for new trial is reviewed under an abuse of discretion standard. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App.1995); Garcia v. State, 75 S.W.3d 493, 497 (Tex. App.--San Antonio 2002, pet. ref'd). There is no evidence that Walker met all four prerequisites necessary to be entitled to a new trial. As such, the trial court did not abuse its discretion in denying his first amended motion for new trial. Walker's third issue is overruled and the judgment of the trial court is affirmed.

PAUL W. GREEN, JUSTICE

Do Not Publish

1. Retired Chief Justice Phil Hardberger not participating.

2. Walker was initially fined $1500 but was able to pay an additional $500 in lieu of completing a community service regiment.