No. 05-04-01147-CR
Opinion Filed July 28, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 296th Judicial District Court, Collin County, Texas, Trial Court Cause No. 296-82159-02. Affirm.
Before Justices WHITTINGTON, FITZGERALD, and RICHTER.
MARTIN RICHTER, Justice.
Rodney Walker appeals his conviction and six-year enhanced sentence for state jail felony theft of property valued less than $1,500. See Tex. Pen. Code Ann. § 31.03(a), (e)(4)(D) (Vernon Supp. 2004-05). In six points of error, Walker (a) challenges the legal and factual sufficiency of the evidence to prove the value of the property and prove he, rather than his brother Roderick, committed the offense, (b) complains the State's notice of its intent to use prior convictions for enhancement of punishment was inadequate, and (c) asserts the State failed to meet its burden of proving "the finality" of those prior convictions. We affirm.
Background
Eckerd Drug store manager Mark Ulibarri noticed a male customer carrying a basket full of Advil and Motrin bottles and, thinking it was "peculiar," began following him. After about a minute, the customer realized he was being followed, ran out the store, dropped the basket, and left in a white Oldsmobile that was waiting for him. Ulibarri got the license plate number of the car and contacted police with a description of the shoplifter and car. A check on the license plate number revealed the car was registered to Walker, and he was arrested. Because he was a "repeat offender"-having several prior theft convictions, he was charged with state jail felony theft. See id. The State did not allege enhancement paragraphs in the indictment but, twenty days before trial, the State gave notice of its intent to seek an enhanced punishment through proof of five prior convictions. See id. § 12.42 (Vernon 2004). At trial, Ulibarri testified he was able to get a good look at the shoplifter and identified Walker from a photographic line-up and also in court. Ulibarri also testified that he found twenty-three bottles of Advil and Motrin in the basket Walker left behind, but did not provide specific details about the bottles. According to Ulibarri, the value of the bottles Walker had taken was "less than $1,500." Detective Jeff Kranz, the investigating officer, testified he showed the picture line-up to Ulibarri who "very quickly" identified Walker. Kranz also testified he interviewed Walker and his brother Roderick. Walker denied committing the offense, and Kranz testified that "nothing" Roderick told him "altered his opinion" about pressing charges against Walker. Walker did not testify but called his ex-girlfriend, Shenekwa Harris, as an alibi witness. Harris testified that Walker could not have committed the offense because he was with her at her son's birthday party. Harris testified further that the day of her son's party, Roderick and his friend, "Junior," had borrowed Walker's car. Also testifying for Walker was Walker's father, Everett, who testified he believed it was Roderick, not Walker, who had committed the offense. Sufficiency of the Evidence
In his first four points of error, Walker challenges the legal and factual sufficiency of the evidence to support the conviction. Specifically, in points one and two, he asserts the evidence is legally and factually insufficient to prove the value of the stolen property because the State did not "present any physical evidence that showed what the stolen property actually was . . . the size of the [Advil and Motrin] bottles and the individual cost of each bottle." In points three and four, Walker asserts the evidence is legally and factually insufficient to prove he, and not Roderick, committed the offense. In arguing this point, Walker relies on Harris's alibi testimony that he was with her the day of the offense and that Roderick had borrowed Walker's car. In reviewing a challenge to the legal and factual sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999). In reviewing a factual sufficiency challenge, we view all the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). We will find the evidence to be factually insufficient when the evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt or the contrary evidence is so strong that the beyond-a-reasonable-doubt standard could not have been met. Id. In both sufficiency reviews, we must be appropriately deferential to the fact-finder's role as the exclusive judge of the witnesses' credibility and the weight given to the evidence. Jones v. State, 944 S.W.2d 642, 647-48 (Tex.Crim.App. 1996); Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). Viewing the evidence under the appropriate standards, the record reflects Ulibarri followed the shoplifter for about one minute, was able to get a good look at him, and identified him as Walker in a photographic line-up and at trial. Ulibarri testified that there were twenty-three bottles of Motrin and Advil in the basket Walker was carrying and their value was "less than $1,500." Additionally, Kranz testified that the get-away car was registered to Walker, that Ulibarri "very quickly" identified Walker as the shoplifter, that he interviewed both Walker and Roderick, and that nothing in his interview with Roderick changed his opinion about pressing charges against Walker. From this record, the trial judge could rationally find the elements of the offense beyond a reasonable doubt. Although the actual Advil and Motrin bottles stolen were not admitted into evidence and no testimony was presented as to the size and individual cost of the bottles, no such evidence was necessary as the State did not need to prove an exact value. See Tex. Pen. Code Ann. § 31.03(a), (e)(4). Rather, the State had to prove only that the value of the stolen property was "less than $1,500." See id. § 31.03(a), (e)(4). The State proved this through the testimony of Ulibarri. Further, although Walker provided alibi testimony, the judge, as the sole finder of facts, was free to disbelieve this testimony. We will not disturb that finding. See Harvey, 135 S.W.3d at 717. We overrule Walker's first four points of error. Notice of State's Intent to Seek Enhanced Punishment
In his fifth point of error, Walker complains the State's notice of its intent to seek an enhanced punishment provided separate from the indictment and "only a few weeks" before trial was inadequate. Because a defendant is entitled to notice of the prior convictions to be used for enhancement of punishment, such prior convictions must be pleaded in "some form." Brooks v. State, 957 S.W.2d 30, 34 (Tex.Crim.App. 1997). Although it is permissible and perhaps preferable to do so in the indictment, it is not the only reasonable method of conveying notice. Id. A pleaded enhancement allegation is adequate and reasonable if it provides a description of the judgment of the former conviction so that the defendant may find the record and prepare "for a trial of the question whether he is the same convict." Sears v. State, 91 S.W.3d 451, 454 (Tex.App.-Beaumont 2002, no pet.) (citation omitted). A pleading complying with this requirement and giving the defendant at least ten days notice is presumptively reasonable. Fairrow v. State, 112 S.W.3d 288, 295 (Tex.App.-Dallas 2003, no pet.). Here, the record reflects that the State filed a document entitled "State's Notice of Intent to Use Prior Convictions for Enhancement," which listed five prior convictions and provided the type of the offense, cause number, county and state in which they were committed, and disposition for each one. This document was filed twenty days before trial and served on Walker that same day, and thus was presumptively reasonable. See Fairrow, 112 S.W.2d at 295. Although Walker argues that "a few weeks" before trial is not adequate notice, he has failed to rebut the presumption of reasonableness. Walker did not complain at trial that he had inadequate time to respond to the allegations nor that he was surprised by the enhancement of punishment and does not explain now why the twenty-day notice he received is inadequate. See Barnes v. State, 152 S.W.3d 144, 146 (Tex.App.-Dallas 2004, no pet.) (notice given seven days prior to trial reasonable where appellant did not argue at trial surprise or that he had inadequate time to prepare). Given the record before us, we conclude the State's notice of its intent to seek an enhanced punishment was reasonable. We overrule Walker's fifth point of error. Proof of Finality of Prior Convictions
Walker's sixth point of error concerns the State's proof of enhancement. As stated, the State gave Walker notice of its intent to use five prior convictions for enhancement purposes. Two of those convictions were felony convictions. Upon proof of those two prior felony convictions and a showing that the second of those two convictions (a) became final prior to his commission of the theft in this case and (b) was for an offense occurring subsequent to the first of those two prior felony convictions becoming final, Walker's punishment in this state jail felony theft case increased to that of a second-degree felony. See Tex. Pen. Code Ann. §§ 12.33, 12.42(a)(2). Walker argues that because one of the prior theft convictions used to "elevate" the theft in this case to a state jail felony became final on the same day as one of the two prior felony convictions used for punishment enhancement purposes, the State failed to show those prior felony convictions became final prior to the commission of the theft in this case. Walker misconstrues the State's burden, however. The finality requirement applies to the primary offense charged or actual offense committed-in this case, the theft of the Advil and Motrin bottles-and not the prior convictions used to "elevate" the primary offense to a higher category offense. . Jones v. State, 711 S.W.2d 634, 635 (Tex.Crim.App. 1986); Wolfe v. State, 772 S.W.2d 224, 226 (Tex.App.-Houston [14th Dist.] 1989, pet. ref'd). Here, the prior felony convictions used for punishment enhancement became final prior to Walker's stealing the Advil and Motrin bottles, and thus the State satisfied its burden. We overrule Walker's sixth point of error. We affirm the trial court's judgment.