James Shelley v. The State of Texas--Appeal from 299th District Court of Travis County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-90-284-CR
JAMES SHELLEY,

APPELLANT

 
vs.
THE STATE OF TEXAS,

APPELLEE

 
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
NO. 102,772, HONORABLE JON N. WISSER, JUDGE

PER CURIAM

A jury found appellant guilty of theft, third offense. Tex. Penal Code Ann. 31.03(e)(4)(E) (Supp. 1992). The jury assessed punishment, enhanced by two previous felony convictions, at imprisonment for twenty-five years.

Appellant does not contest the sufficiency of the evidence as to the primary offense, which reflects that he was caught shoplifting at an Austin grocery store. Appellant does complain, however, that one of the previous theft convictions alleged pursuant to 31.03(e)(4)(E) is void, and thus could not be utilized in this cause. He also contends that the indictment in this cause is fundamentally defective. We find both points of error to be without merit.

Section 31.03(e)(4)(E) provides that a theft of property having a value less than $750 is a third degree felony if the defendant has been previously convicted two or more times of any grade of theft. The indictment in this cause alleges that appellant "had previously been convicted of the offense of theft as follows," then lists four previous theft convictions. Appellant argues that the indictment is defective because it does not expressly state that he had been previously convicted "two or more times."

Appellant did not object to the indictment on this ground, thereby waiving his right to complain on appeal. Tex. Code Crim. Proc. Ann. art. 1.14(b) (Supp. 1992). The contention is without merit in any event. It is not necessary for an indictment to precisely track the language of the penal statute. Queen v. State, 662 S.W.2d 338, 341 (Tex. Crim. App. 1983). The indictment here alleges two or more previous theft convictions, which is all the statute requires. None of the cases cited by appellant support his contention that the omitted phrase was essential to the indictment. Point of error two is overruled.

In his other point of error, appellant urges that one of the four previous theft convictions alleged in the indictment is void because the indictment in that case was defective. We find that this contention does not present reversible error for two reasons. First, the record does not reflect that appellant timely objected to the allegedly defective indictment, and therefore he cannot collaterally attack it at this time. Art. 1.14(b). Second, three previous theft convictions remain even if the challenged conviction is disregarded. We disagree with appellant's contention that the State was bound to prove all four previous theft convictions. Under the statute, the State was required to prove at least two of the previous theft convictions it alleged. The State met this burden. Point of error one is overruled.

The judgment of conviction is affirmed.

 

[Before Justices Powers, Jones and B. A. Smith]

Affirmed

Filed: January 15, 1992

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