Patricia A. Stroud v. The State of Texas--Appeal from 400th District Court of Fort Bend County

NUMBER 13-00-619-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF  TEXAS

  CORPUS CHRISTI

PATRICIA A . STROUD, Appellant,

v.

THE STATE OF  TEXAS, Appellee.

  On appeal from the 400th District Court of Fort Bend County, Texas.

  O P I N I O N

Before Justice Yanez, Rodriguez, and Baird[1]

  Opinion by Justice Baird

Appellant was charged by indictment with the offense of theft. She pled guilty to the charged offense and the trial court assessed punishment at eight years confinement in the Texas Department of Criminal Justice--Institutional Division. We affirm.

I. Factual Summary.

To fully address the points of error, we must begin with a summary of the proceedings in the trial court. The grand jury returned a four count indictment against appellant charging the offense of theft. Tex. Pen. Code Ann. ' 31.03 (Vernon Supp 2002). Except for the alleged date, the counts are identical and allege appellant appropriated currency of $20,000.00 or more but less than $100,000.00. Id. at '31.03(e)(5). The final paragraph in the indictment alleged that the amounts in each count were obtained pursuant to one scheme and continuing course of conduct and that the aggregate amount totals $100,000.00 or more but less than $200,000.00. Id. at '31.09. This allegation increased the range of punishment from a third to a second degree felony. Id. at '31.03(e)(6).

Appellant was not able to reach a plea bargain with the State. Nevertheless, she pled guilty to each count and true to the aggregation allegation. In addition to appellant=s plea, the State offered evidence to establish appellant=s guilt. The trial court admitted this evidence, found it was sufficient evidence to substantiate appellant=s guilt but did not enter a finding of guilt, ordered a pre-sentence investigation report, and recessed the proceedings.[2]

Prior to the commencement of the punishment hearing, appellant moved to withdraw her plea(s) of guilty because the aggregate amount of the thefts was less than $100,000.00. The trial judge denied the motion and proceeded to hear evidence on the issue of punishment. That evidence portrayed appellant as an employee who stole cash from her employer. The thefts occurred over a period of years from 1995 through September 1998, and totaled $100,855.64. The trial judge assessed punishment at eight years confinement.[3]

II. The Premise.

Appellant raises three points of error. Points one and two are premised on the argument that the four counts of the indictment did not allege a theft of $20,000.00 or more. Appellant argues, that because those counts did not contain the aggregating language of section 31.09 of the Penal Code, they alleged only a single theft of less than $20,000.00, not multiple thefts in excess of $20,000.00. See Tex. Pen. Code Ann. '31.09 (Vernon 1994).

This argument embodies three established legal principles. First, a conviction under a theory not charged violates the Due Process Clause of the United States Constitution. Washington v. State, 909 S.W.2d 577, 579 (Tex. App.BCorpus Christi 1995, no pet.). Second, an indictment that omits an element of the offense will support a conviction. Studer v. State, 799 S.W.2d 263, 271-72 (Tex. Crim. App. 1990). Third, where an indictment facially charges a complete offense, the State is held to the offense charged in the indictment, regardless of whether the State intended to charge that offense. Thomason v. State, 892 S.W.2d 8, 11 (Tex. Crim. App. 1994).

Appellant relies on the first and third legal principles in support of her argument. In Thomason, the defendant was charged with a theft scheme involving nonexistent computer equipment and a series of fraudulent invoices that he submitted to his employer for payment. Id. at 9. However, the indictment did not allege that the theft was perpetrated through Aone scheme or continuing course of conduct@ so as to aggregate the amounts paid on the fraudulent invoices. See Tex. Pen. Code Ann. ' 31.09 (Vernon1994). Instead, the indictment alleged all the elements of a single theft under section 31.03 of the Penal Code. The Court of Criminal Appeals held the indictment alleged an offense under section 31.03, not an offense under section 31.09. Thomason 892 S.W.2d at 10. This is known as the Afacially complete offense@ exception to Studer=s general rule on defective indictments. Limas v. State, 941 S.W.2d 198, 203 (Tex. App.BCorpus Christi 1996, pet. ref'd.).

However, the instant case is unlike Thomason because the indictment does contain a section 31.09 allegation. Specifically, that allegation stated: AAnd all said amounts as alleged in each count were obtained pursuant to one scheme and continuing course of conduct ....@ This paragraph specifically references Aall amounts@ in Aeach count.@ By using these specific references, the indictment employed section 31.09 to aggregate the amount in each count to more than $20,000.00, and to aggregate those four counts into an amount in excess of $100,000.00. Consequently, we hold the indictment alleged a second degree felony. See Tex. Pen. Code Ann. '31.03(e)(6) (Vernon Supp. 2002).

III. Points of Error.

The first point of error contends the trial judge erred in not permitting appellant to withdraw her plea(s) or, in the alternative, in not suasponte withdrawing the plea(s), because the evidence at the punishment phase established she was not guilty of the charged offense. The second point of error contends trial counsel was ineffective for not realizing appellant was not guilty of the charged offense. As noted above, the success of each point is contingent upon our holding the indictment did not allege a second degree felony offense. For the reasons stated in part II, supra, we do not make that holding. Consequently, we hold the trial judge did not err in not withdrawing appellant=s plea(s), and trial counsel was not ineffective. The first and second points of error are overruled.

The third point of error contends appellant did not enter a plea to counts I and II of the indictment. However, this argument is contradicted by the record. Therefore, the third point of error is overruled.

The judgment of the trial court is affirmed.

CHARLES F. BAIRD

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed this the

28th day of February, 2002.

[1]Former Court of Criminal Appeals Judge Charles F. Baird assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. '74.003 (Vernon1998).

[2]These proceedings were presided over by the Honorable Ogden Bass.

[3]The punishment phase was presided over by the Honorable A. D. Azios.