Opinion
06-19-00211-CR
08-04-2020
JOSHUA CHRISTIAN CAMP, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 188th District Court Gregg County, Texas
Trial Court No. 48,338-A Before Morriss, C.J., Burgess and Stevens, JJ.
MEMORANDUM OPINION
A Gregg County jury convicted Joshua Christian Camp of habitual theft of property valued at less than $2,500.00, with two prior theft convictions, a state jail felony. See TEX. PENAL CODE ANN. § 31.03(e)(4)(D). Camp's offense became punishable as a third-degree felony after the jury found the State's enhancement allegations true, and he was sentenced to ten years' imprisonment and ordered to pay a $5,000.00 fine. See TEX. PENAL CODE ANN. § 12.425(a). On appeal, Camp argues that the trial court erred in amending the indictment on the day of trial, the evidence is insufficient to support the jury's finding of guilt, he should have received a lesser-included offense instruction on attempted theft, and his sentence was grossly disproportionate to the offense.
We find that (1) the indictment was amended before trial, (2) legally sufficient evidence supports the verdict of guilt, (3) Camp was not entitled to a lesser-included-offense instruction, and (4) Camp did not preserve his Eighth Amendment complaint. As a result, we affirm the trial court's judgment.
(1) The Indictment Was Amended Before Trial
"Amendments to charging instruments are governed by Article 28.10 of the Texas Code of Criminal Procedure." Briscoe v. State, 542 S.W.3d 109, 114 (Tex. App.—Texarkana 2018, pet. ref'd) (citing TEX. CODE CRIM. PROC. ANN. art. 28.10). Article 28.10 states,
(a) After notice to the defendant, a matter of form or substance in an indictment or information may be amended at any time before the date the trial on the merits commences. On the request of the defendant, the court shall allow the defendant not less than 10 days, or a shorter period if requested by the defendant, to respond to the amended indictment or information.
(b) A matter of form or substance in an indictment or information may also be amended after the trial on the merits commences if the defendant does not object.TEX. CODE CRIM. PROC. ANN. art. 28.10. Thus—while the statute allows the State "to amend [the indictment] with notice up until the day before trial commences and[, in certain circumstances,] after the trial commences[—]the statute does not address [amendment on the] day of, but before the trial commences." State v. Murk, 815 S.W.2d 556, 558 (Tex. Crim. App. 1991). Since the statute does not permit an amendment on the day of trial, but before the trial on the merits commences, a trial court errs in permitting an amendment in that time period. Sopido v. State, 815 S.W.2d 551, 556 (Tex. Crim. App. 1990) (op. on reh'g).
(c) An indictment or information may not be amended over the defendant's objection as to form or substance if the amended indictment or information charges the defendant with an additional or different offense or if the substantial rights of the defendant are prejudiced.
The State's indictment for habitual theft originally stated that Kalvin Sanders, a loss prevention associate for Walmart, was the owner of the stolen property. On September 19, 2019, the State moved to amend the indictment by replacing Sanders's name with "Walmart." On September 23, the trial court entered a written order amending the indictment. The written order stated that the indictment was amended to replace "Kalvin Sanders" with "Walmart." No objection was made to the order at that time. In a September 30 pretrial conference, Camp objected to the amendment because he believed the State could not name a corporation as the owner of the property. The trial court overruled his objection and said he was "going to . . . go with the signed order amending the indictment." The clerk's record shows that the indictment was interlineated to reflect the amendment on October 2, the same day on which the jury was sworn. For this reason, Camp argues that Article 28.10(b) applies to make the amendment untimely. We disagree.
Camp did not argue that the amendment charged him with an additional or different offense or prejudiced his substantial rights. See TEX. CODE CRIM. PROC. ANN. art. 28.10(c); Briscoe, 542 S.W.3d at 115.
"Physical interlineation of the original indictment is an acceptable but not the exclusive means of effecting an amendment to the indictment." Riney v. State, 28 S.W.3d 561, 565 (Tex. Crim. App. 2000). The trial court may effect an amendment using a procedure that complies "with all statutory requisites and faithfully preserve[s] the functions of an indictment, i.e., the trial court retains its jurisdiction, and the defendant is still kept abreast of the charges against him/her and has adequate information to prepare an appropriate defense." Id. at 566. A written order granting the State's motion to amend the indictment that specifies the language of the amendment is an acceptable means of effecting an amendment to an indictment. Nwosoucha v. State, 325 S.W.3d 816, 829 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd) (citing Riney, 28 S.W.3d at 565); see Spillers v. State, Nos. 14-13-00331-CR & 14-13-00332-CR, 2014 WL 4088583, at *4 (Tex. App.—Houston [14th Dist.] Aug. 19, 2014, pet. ref'd) (mem. op., not designated for publication). Since the trial court's written order granting the motion to amend the indictment in this case contains the requested amending language, we conclude that the indictment was amended under Article 28.10(a) on September 23.
Although unpublished cases have no precedential value, we may take guidance from them "as an aid in developing reasoning that may be employed." Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref'd).
Also, to the extent Camp complains that trial began less than ten days after the amendment, an "allowance of ten days to respond to the amended indictment is required only if the defendant requested it." Wood v. State, No. 06-18-00194-CR, 2019 WL 1575584, at *2 (Tex. App.—Texarkana Apr. 12, 2019, no pet.) (mem. op., not designated for publication) (citing Ruiz Avalos v. State, 764 S.W.2d 910, 912 (Tex. App.—Corpus Christi 1989, no pet.)). Since Camp did not make a request for ten days in which to respond to the amended indictment, he was not entitled to such a period of time. We overrule this point of error.
See Henry v. State, No. 12-18-00139-CR, 2019 WL 141382, at *3 (Tex. App.—Tyler, Jan. 9, 2019, no pet.) (mem. op., not designated for publication); Sayed v. State, No. 05-08-01198-CR, 2009 WL 2884168, at *7 (Tex. App.—Dallas Sept. 10, 2009, pet. ref'd) (not designated for publication); McAfee v. State, No 01-03-01041-CR, 2004 WL 2966361, at *2 (Tex. App.—Houston [1st Dist.] Dec. 23, 2004, no pet.) (mem. op., not designated for publication).
(2) Legally Sufficient Evidence Supports the Verdict of Guilt
Camp also argues that the evidence was insufficient to support a verdict of guilt. We disagree.
"In evaluating legal sufficiency, we review all the evidence in the light most favorable to the trial court's judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt." Williamson v. State, 589 S.W.3d 292, 297 (Tex. App.—Texarkana 2019, pet. ref'd) (citing Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.); Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref'd)). "We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury 'to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.'" Id. (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). In drawing reasonable inferences, the trier of fact "may use common sense and apply common knowledge, observation, and experience gained in the ordinary affairs of life." Duren v. State, 87 S.W.3d 719, 724 (Tex. App.—Texarkana 2002, pet. struck) (citing Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999) (Meyers, J., concurring)). As the trier of fact, the jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony and may "believe all of a witnesses' testimony, portions of it, or none of it." Thomas v. State, 444 S.W.3d 4, 10 (Tex. Crim. App. 2014). We give "almost complete deference to a jury's decision when that decision is based on an evaluation of credibility." Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).
Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The "hypothetically correct" jury charge is "one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id.
In this case, Camp committed theft "if he unlawfully appropriate[d] property with [the] intent to deprive the owner of property." TEX. PENAL CODE ANN. § 31.03(a). To be unlawful, Camp's appropriation had to have been without the effective consent of the owner. See TEX. PENAL CODE ANN. § 31.03(b)(1). The State alleged that Camp "unlawfully appropriate[d], by acquiring or otherwise exercising control over property, to-wit: clothing, of the value of less than $2,500, from Walmart, the owner thereof, without the effective consent of the owner, and with intent to deprive the owner of the property." Here, Camp argues that the evidence is insufficient because it shows that he left the items inside the Walmart store.
Appropriate means "to acquire or otherwise exercise control over property other than real property." TEX. PENAL CODE ANN. § 31.01(4)(B).
An offense of theft is punishable as a state jail felony if "the value of the property stolen is less than $2,500 and the defendant has been previously convicted two or more times of any grade of theft." TEX. PENAL CODE ANN. § 31.03(e)(4)(D). Thus, the State also had to prove that Camp had previously committed two theft offenses, but its burden was satisfied when Camp executed a written stipulation to having committed those offenses.
At trial, Kalvin Sanders testified that he flagged Camp as a potential shoplifter when he witnessed him placing items into a red trash can he had placed inside his buggy. Sanders continued watching as Camp concealed the merchandise by placing the lid on the trash can. According to Sanders, Camp passed the self-checkout lanes, walked through a closed cash register station that was unmanned, and entered the vestibule. Based on his training and experience, Sanders testified that Camp's actions showed that he intended to steal the items.
Sanders said that Camp passed the points of sale, turned back as he heard footsteps approaching, left the buggy, and ran into the parking lot as Sanders ran into the vestibule. Kevin Justice, another Walmart asset protection associate, confirmed that Camp ran "out after he passed all points of sale with a cart," but left "the cart . . . in the grocery vestibule" and ran outside through the store doors. Surveillance footage of the incident was played for the jury. The recording showed that Camp was on his way out of the store with the buggy and the contents he had put into it, but left it in the vestibule and ran after noticing that Sanders was chasing him.
Sanders defined the vestibule as "the middle area in between the points of sale and the actual exit doors."
Michele Chitwood, an officer with the Longview Police Department, apprehended Camp as he was on the run. According to Chitwood, a "citizen said he saw [Camp] running away from merchandise." Chitwood testified that Camp lied about not having identification, which she found in his pocket. Chitwood said that Walmart employees pointed to a "shopping cart that had . . . a big red trash can that had additional merchandise inside" and affirmed that Camp had secreted the items inside of the trash can. After Camp was brought back into the store, Sanders created a list of the items in Camp's buggy.
Camp argues that the evidence was insufficient to establish that he appropriated property because he abandoned all the merchandise inside the store. In defining the various theft offenses, the word "appropriate" means "to acquire or otherwise exercise control over property other than real property." TEX. PENAL CODE ANN. § 31.01(4)(B). "Any removal of the property, no matter how slight, from its customary location is sufficient to show control over the property for purposes of theft." Nautilus Ins. Co. v. Steinberg, 316 S.W.3d 752, 756 (Tex. App.—Dallas 2010, pet. denied) (citing Baker v. State, 511 S.W.2d 272 (Tex. Crim. App. 1974)); see Miera v. State, 663 S.W.2d 508, 511 (Tex. App.—Amarillo 1983, no pet.). Contrary to Camp's argument, "[t]o show theft under Texas law, it is not necessary to establish that the property was removed or carried away from the premises." Nautilus Ins. Co., 316 S.W.3d at 755-56 (citing Hill v. State, 633 S.W.2d 520, 521 (Tex. Crim. App. 1981)); see Senter v. State, 411 S.W.2d 742, 744-45 (Tex. Crim. App. 1967); Hawkins v. State, 214 S.W.3d 668, 670 (Tex. App.—Waco 2007, no pet.) ("[A]sportation—the act of carrying away or removing property—is not an element of statutory theft."). Here, the evidence showed that Camp removed merchandise from the store shelves, placed the items into his cart, secreted items inside of a trash can in his buggy, pushed the buggy past the cash registers, and was about to exit the store with buggy and merchandise. As a result, we find the evidence is legally sufficient to show that Camp exercised control over Walmart's property in his cart.
The evidence was also sufficient to show Camp had the intent to deprive Walmart of the property. "Intent to deprive must be determined from the words and acts of the accused." Griffin v. State, 614 S.W.2d 155, 159 (Tex. Crim. App. [Panel Op.] 1981); see Banks v. State, 471 S.W.2d 811, 812 (Tex. Crim. App. 1971). The jury could have found that Camp intended to deprive Walmart of property when he placed the lid on the trash can to secret the merchandise inside of it and followed through with his actions up until his quick exit from the store. Also, the surveillance recording shows that, as soon as Camp saw Sanders running toward him, he ran. Camp's flight through the parking lot indicated a consciousness of guilt, as did his attempt to hide his identification from Chitwood. See King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000) (holding that making false statements to cover up a crime is evidence indicating consciousness of guilt and is admissible to prove commission of offense).
Because we find the evidence legally sufficient to support the jury's verdict of guilt, we overrule this point of error.
(3) Camp Was Not Entitled to a Lesser-Included-Offense Instruction
Camp unsuccessfully requested that the jury be charged with the lesser-included offense of attempted theft. The criminal attempt statute provides, "A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended." TEX. PENAL CODE ANN. § 15.01(a). On appeal, Camp argues that the trial court erred in denying his lesser-included- offense instruction because he failed to effect the commission of theft since he left the merchandise in the store.
"We employ a two-step process in our review of alleged jury charge error." Murrieta v. State, 578 S.W.3d 552, 554 (Tex. App.—Texarkana 2019, no pet.) (citing Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994)). "Initially, we determine whether error occurred and then evaluate whether sufficient harm resulted from the error to require reversal." Id. (quoting Wilson v. State, 391 S.W.3d 131, 138 (Tex. App.—Texarkana 2012, no pet.) (citing Abdnor, 871 S.W.2d at 731-32).
We have previously explained that Camp was not required to remove the property from the store to complete the commission of theft. Camp appropriated the merchandise and displayed his intent to deprive Walmart of the property by placing it inside a covered trash can and transporting it past points of sale. See Nautilus Ins. Co., 316 S.W.3d at 755-56 (citing Hill, 633 S.W.2d at 521); Hawkins, 214 S.W.3d at 670. He introduced no evidence at trial showing that he did not intend to deprive Walmart of the property or that he failed to commit theft. As a result, we conclude that the trial court properly denied Camp's requested instruction of attempted theft.
We overrule this point of error.
(4) Camp Did Not Preserve His Eighth-Amendment Complaint
Camp's punishment was enhanced by prior convictions for credit card or debit card abuse and possession of a controlled substance. Camp also argues that his sentence violates the Eighth Amendment's prohibition against cruel and unusual punishment because it is excessive and grossly disproportionate to his crime. The State argues that Camp failed to preserve this complaint at trial. We agree.
"To preserve for appellate review a complaint that a sentence is grossly disproportionate, constituting cruel and unusual punishment, a defendant must present to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired." Navarro v. State, 588 S.W.3d 689, 690 (Tex. App.—Texarkana 2019, no pet.) (quoting Russell v. State, 341 S.W.3d 526, 527 (Tex. App.—Fort Worth 2011, no pet.)); see TEX. R. APP. P. 33.1; Stewart v. LaGrand, 526 U.S. 115, 119 (1999); Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996); Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995); Duren, 87 S.W.3d at 732. Further, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court's refusal to rule. TEX. R. APP. P. 33.1(a)(2).
In the context of both a motion to quash the indictment and an objection to the punishment jury charge, Camp argued that the Texas Penal Code did not permit the State to enhance both the level of offense and the punishment level. To support these arguments, Camp cited the Eighth Amendment. However, Camp abandoned this argument on appeal. Instead, Camp acknowledges that his sentence fell within the statutorily proscribed punishment range but contends that his prior criminal history was "not that bad." Thus, Camp's argument on appeal does not comport with the arguments he raised at trial. See Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002).
Camp did not object to his sentence at trial, but he e-filed a motion for new trial stating that "the verdict [was] excessive in view of the evidence and the offense charged." However, Camp did not request a hearing on his motion. "A defendant is required to 'present' a motion to the trial court within ten days of filing it, unless the court, in its discretion, extends that time period." Navarro v. State, 588 S.W.3d 689, 690-91 (Tex. App.—Texarkana 2019, no pet.) (citing TEX. R. APP. P. 21.6; Stokes v. State, 277 S.W.3d 20, 21 (Tex. Crim. App. 2009). Because it is well-established that "the filing of a motion for new trial alone is not sufficient to show 'presentment,'" it "does not preserve an issue for appellate review in the absence of a showing that the trial court has seen the motion." Id. at 691 (quoting Carranza v. State, 960 S.W.2d 76, 78 (Tex. Crim. App. 1998) (citing Colone v. State, 573 S.W.3d 249, 259 (Tex. Crim. App. 2019) ("[T]he mere filing of a 'certificate of presentment' will not suffice to establish that a motion for new trial and request for a hearing has been presented to the trial court."); Lopez v. State, 96 S.W.3d 406, 414 (Tex. App.—Austin 2002, pet. ref'd) ("[T]he mere filing of a motion for a new trial . . . will not preserve the error.")). "The purpose of the presentment rule is 'to put the trial court on actual notice that a defendant desires the trial court to take some action on the motion for new trial such as a ruling or a hearing on it.'" Id. (quoting Stokes, 277 S.W.3d at 21 (quoting Carranza, 960 S.W.2d at 78)).
See Weeks v. State, No. 06-12-00110-CR, 2013 WL 557015, at *2 (Tex. App.—Texarkana Feb. 14, 2013, no pet.).
In this case, nothing in the appellate record shows that Camp's motion for new trial was timely presented to the trial court. "The motion was not hand-delivered to the trial court, there is no notation on the motion indicating that the trial court had seen it, and there is no docket entry showing that the motion was brought to the trial court's attention." Id. As a result, we find this point of error unpreserved.
"A reviewing court should not address the merits of an issue that has not been preserved for appeal." Id. (quoting Sandoval v. State, 409 S.W.3d 259, 287 (Tex. App.—Austin 2013, no pet.) (quoting Wilson v. State, 311 S.W.3d 452, 473-74 (Tex. Crim. App. 2010) (per curiam) (op. on reh'g))). Accordingly, we overrule this point of error.
We affirm the trial court's judgment.
Josh R. Morriss, III
Chief Justice Date Submitted: July 9, 2020
Date Decided: August 4, 2020 Do Not Publish