Travis Odell Shepard v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-91-198-CR

TRAVIS ODELL SHEPARD,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 91-339-C

O P I N I O N

A jury convicted Travis Shepard of theft under $750. See Tex. Penal Code Ann. 31.03 (Vernon Supp. 1992). It sentenced him to seventy-five years in prison. Appellant raises three points of error. We affirm the judgment.

In his first point, Appellant contends the evidence is insufficient to convict him of knowingly receiving stolen property. See id. 31.03(a), (b)(2). Apparently, he is arguing that the crime of theft includes the element of knowingly possessing stolen property and that the State failed to meet its burden because it did not prove he knew he was in possession of previously stolen property. However, his arguments under this point are immaterial. He was not tried and convicted under section 31.03(a),(b)(2), which is commonly referred to as theft by receiving stolen property, but rather under section 31.03(a),(b)(1), commonly referred to as theft. See id. 31.03(b)(1). Theft and theft by receiving stolen property are two separate offenses. Dennis v. State, 647 S.W.2d 275, 280 (Tex. Crim. App. 1983). His point that the evidence is insufficient to prove he knowingly received stolen property is irrelevant. We overrule point one.

In his second point, Appellant complains that the court erred in allowing the State to amend its original indictment without first seeking leave of the court. He contends the State violated article 28.11 of the Code of Criminal Procedure because it did not first ask the court for permission to file the motion to amend. See Tex. Code Crim. Proc. Ann. art. 28.11 (Vernon 1989). Article 28.11 provides, "All amendments of an indictment or information shall be made with leave of the court and under its direction." Id. (emphasis added). "With leave of the court" simply means with permission of the court. Black's Law Dictionary 801 (5th Ed. 1979). The statute does not require that the State first obtain permission to file its motion. Such a rule would be a procedural non sequitur. The only requirement is that the State get permission to amend the indictment. Tex. Code Crim. Proc. Ann. art. 28.11. Here, the State filed a motion to amend the indictment, and the court granted it. We overrule the second point.

In his third point, Appellant contends that the judgment and sentence in this care are void because the State did not prove the finality of cause number 72-249-C, one of the prior convictions offered for enhancement purposes. He objected to the admission of the pen packed (Exhibit 7) as hearsay, but he now complains that the court erred by admitting evidence of the prior conviction that he alleges was not shown to be final. He cannot use an objection made on one legal basis at trial to support a different legal theory on appeal. See Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990). This point is not properly before us. See Tex. R. App. P. 52(a). Point three is overruled and the judgment is affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed September 2, 1992

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