Opinion
No. 05-05-00378-CR
Opinion Filed February 23, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-49116-IM. Affirmed.
Before Justices MORRIS, BRIDGES, and FRANCIS.
MEMORANDUM OPINION
A jury convicted David Brian Hensley of state jail felony theft and assessed punishment at two years confinement and a $2,000 fine. In a single issue, appellant contends the trial court erred in charging the jury on the lesser included misdemeanor theft offense. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. We affirm. Gerardo Andrade, an assets protection specialist at a Target store, observed appellant pushing a cart containing a "large amount of high dollar items" including a backpack, a cell phone, and a DVD. Appellant opened the DVD package, placed the DVD in the backpack, and left the backpack in the sporting goods department. He placed the cell phone in the home storage department and then left the store. He entered and left the store two additional times and finally returned to the aisle where he left the cell phone. Appellant placed the cell phone inside his pants and left the store. Andrade stopped him outside the store and recovered the cell phone, valued at $159.99. Andrade recorded his surveillance of appellant on video tape. Certified court records admitted at trial established appellant had been previously convicted of two misdemeanor theft offenses. Appellant urges the trial court erred in charging the jury on the lesser included misdemeanor theft charge "when the trial court would not have jurisdiction to proceed on a misdemeanor theft if the two prior theft convictions were not proven by the State." Appellant did not object at trial to the inclusion of the lesser included instruction in the jury charge. When reviewing a challenge to the jury charge, we must first determine whether error actually exists. Hutch v. State, 922 S.W.2d 166, 170-171 (Tex.Crim.App. 1996). The court then determines whether the error caused sufficient harm to require reversal. Id. at 170-171. The extent of harm requiring reversal is controlled by whether the error was properly preserved at trial. Id. at 172. Because appellant did not object to the instruction, his conviction will be reversed only if the record shows that the error was so egregiously harmful that appellant was denied a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984); Fails v. State, 999 S.W.2d 144, 148 (Tex.App.-Dallas 1999, pet. ref'd). Appellant was indicted for state jail felony theft. A person commits theft if he unlawfully appropriates property with the intent to deprive the owner of the property. Tex. Pen. Code Ann. § 31.03(a) (Vernon Supp. 2005). The offense is a state jail felony if the value of the property stolen is less than $1,500 and the defendant has previously been convicted two or more times of any grade of theft. Tex. Pen. Code Ann. § 31.03(e)(4)(D) (Vernon Supp. 2005). Once elevated, the prior convictions create the new offense and vest jurisdiction in the district court. Diamond v. State, 530 S.W.2d 586, 587 (Tex.Crim.App. 1975); Moore v. State, 916 S.W.2d 537, 539 (Tex.App.-Dallas 1995, no pet.). Elevating a misdemeanor theft to a felony theft by use of previous theft convictions does not enhance punishment, but creates a new offense and vests the district court with jurisdiction. Id. at 539. The prior theft convictions become jurisdictional elements of the theft charge and cannot be waived. Gant v. State, 606 S.W.2d 867, 871 (Tex.Crim.App. 1980); Moore, 919 S.W.2d at 540. The presentment of an indictment to a court invests the court with jurisdiction of the cause. Tex. Const. art. V, § 12(b). Once the trial court's jurisdiction is properly invoked to try the charged offense, the trial court has jurisdiction to enter judgment against a defendant for the charged offense or for any lesser offenses included in the charge. Tex. Crim. Proc. Code Ann. art. 4.06 (Vernon 2005); Cunningham v. State, 726 S.W.2d 151, 153 (Tex.Crim.App. 1987); Bruns v. State, 22 S.W.3d 540, 543 (Tex.App.-El Paso 2000, no pet.). We conclude the trial court committed no error. We affirm the trial court's judgment.