No. 01-02-00838-CR.
Opinion Issued May 8, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.2(b).
Appeal from the 337th District Court, Harris County, Texas, Trial Court Cause No. 915323.
Before Chief Justice RADACK and Justices NUCHIA and HANKS.
GEORGE C. HANKS, Justice.
A jury found appellant, Garry Bernard Wade, guilty of felony theft and assessed 10 years in prison. In two points of error, appellant argues the evidence presented at trial was legally insufficient to establish he committed a theft and there was a fatal variance between the pleading that the property stolen was Pergo flooring and the proof that it was a store credit. We affirm.
Background
On January 13, 2002, Marshall Poe, Jr., a loss prevention investigator for Home Depot, witnessed appellant enter the store, go to the flooring department, load a lumber cart with nine boxes of Pergo flooring, take the cart to the refund register, and exit the store, leaving the cart next to the refund register. Appellant reentered the store two or three minutes later with a shopping basket that contained store merchandise. Appellant took the cart he had left in the store with the Pergo flooring in it and the shopping basket of merchandise to the refund register and obtained a store credit gift card for the merchandise and the Pergo. After appellant received the store credit gift card, Poe confronted him, took him to the manager's office, and notified the Houston Police Department. Appellant was arrested and taken to jail. Sufficiency
In his first point of error, appellant argues that the evidence is insufficient to prove that he committed theft of Home Depot's Pergo flooring but that the evidence only shows a theft of store credit. Standard of Review
In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 563 (Tex.Crim.App. 2000). We consider all evidence presented at trial, but we do not re-weigh the evidence or substitute our judgment for that of the jury. Id. at 562. Theft
Under Texas law, a person commits the offense of theft if he unlawfully appropriates property with intent to deprive the owner of property. TEX. PENAL. CODE ANN. § 31.03(a) (Vernon 2003). "Appropriate" means to acquire or otherwise exercise control over property other than real property. TEX. PENAL. CODE ANN. § 31.01(4)(B) (Vernon 2003). "Deprive" means to restore property only upon payment of reward or other compensation. TEX. PENAL. CODE ANN. § 31.01(2)(B) (Vernon 2003). Appellant exercised control over the flooring when he produced the flooring for a store credit. This "appropriation" led the store to believe he had previously purchased the flooring. See TEX. PENAL. CODE ANN. § 31.01 (Vernon 2003). The evidence supports the jury's conclusion that appellant appropriated and deprived Home Depot of its Pergo flooring by receiving a refund in the form of a store credit. The evidence presented at the appellant's trial was legally sufficient so that a rational trier of fact could find that appellant committed theft. We overrule appellant's first point of error. Variance
In his second point of error, appellant argues that there was a fatal variance between the pleadings that the property stolen was Pergo flooring and the proof that it was a store credit. A variance occurs when there is a discrepancy between the allegations in the indictment and the proof presented at trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex.Crim.App. 2001). When a sufficiency of evidence claim is based upon a variance between the indictment and the proof, only a material variance will render evidence insufficient. Id. The widely-accepted rule is that a variance that is not prejudicial to a defendant's substantial rights is immaterial. Id. at 248. In determining whether a defendant's substantial rights have been prejudiced, two questions are generally asked, (1) did the indictment, as written, inform the defendant of the charge against him sufficiently to allow him to prepare an adequate defense at trial and (2) would prosecution under the deficiently drafted indictment subject the defendant to the risk of being prosecuted later for the same crime. Id. The indictment alleged that appellant intended to deprive Home Depot of property by acquiring and exercising control over Pergo flooring. In a motion to quash the indictment, appellant objected that the indictment failed to allege how the offense was committed. The trial judge found that the method of how the offense was committed was immaterial, because the indictment sufficiently informed the defendant of the charge against him so as to allow him to prepare an adequate defense at trial. Furthermore, appellant is not at risk of being prosecuted later for the same crime. We overrule appellant's second point of error. We affirm the judgment.