Summary
deciding that defendant had adequate notice of each item allegedly taken from store "through the pre-trial disclosures of the offense report and the video recordings"
Summary of this case from Borders v. StateOpinion
NO. 01-19-00181-CR
08-25-2020
Fred Loualex RODGERS, Appellant v. The STATE of Texas, Appellee
Cary M. Faden, 54 Sugar Creek Center Blvd., Ste. 200, Sugar Land, Texas 77478, for Appellant. Brian Middleton, District Attorney, Fort Bend County, Texas, Jason Bennyhoff, 301 Jackson St., Rm. 101, Richmond, Texas 77469, for Appellee.
Cary M. Faden, 54 Sugar Creek Center Blvd., Ste. 200, Sugar Land, Texas 77478, for Appellant.
Brian Middleton, District Attorney, Fort Bend County, Texas, Jason Bennyhoff, 301 Jackson St., Rm. 101, Richmond, Texas 77469, for Appellee.
Panel consists of Justices Keyes, Kelly, and Landau.
Evelyn V. Keyes, Justice
A jury convicted appellant, Fred Loualex Rodgers, of the Class B misdemeanor offense of theft of property valued between $100 and $750. Pursuant to an agreement between the parties, the trial court assessed appellant's punishment at fifty-nine days' confinement. In two issues, appellant contends that (1) the State failed to present sufficient evidence that he was guilty of the offense of theft because he did not leave the store and therefore did not deprive the owner of use and enjoyment of the property, and (2) the trial court abused its discretion by denying his motion to quash the information because it did not specifically describe the property that he was alleged to have stolen.
See Tex. Penal Code Ann. § 31.03(a), (e)(2).
We affirm.
Background
The State charged appellant by information with the Class B misdemeanor offense of theft of property valued between $100 and $750. The information stated:
Comes now the undersigned Assistant District Attorney of Fort Bend County, Texas, on behalf of the State of Texas, and presents in and to the County Court of Fort Bend County, Texas, that in Fort Bend County, Texas, FRED LOUALEX RODGERS , hereafter styled the Defendant, heretofore on or about November 13, 2018, did then and there unlawfully appropriate property, to wit: food items, gloves, and tools of the value of $100 or more but less than $750 from Walmart or Christopher Caston, the owner thereof, without the effective consent of the said owner and with the intent to deprive the owner of the property.
On January 2, 2019, shortly before trial, appellant moved to quash the information, alleging that the information did not provide him with sufficient notice such that he could form a defense. Specifically, he argued that the information alleged that he stole "food items, gloves, and tools" from Wal-Mart, but Wal-Mart "has all kinds of food items, gloves and tools in its possession." He argued:
The Defendant has no way of knowing what food items, gloves, or tools he is accused of stealing, and therefore, cannot prepare an adequate defense. It could even be possible that different food items are alleged as stolen, some in the same cart, some paid for and some
allegedly stolen. If the information is allowed to stand as worded, the Defendant has no way of knowing what property he is accused of stealing, and therefore, has no way of protecting himself against double jeopardy. If he is found not guilty of some items, the State could merely re-file for other items, without ever identifying which items each specific charge is accusing him of stealing, thereby allowing the State to file the same charge again and again in violation of his double jeopardy rights, claiming they are charging for different items, or even the same items.
He requested that the trial court set aside the information.
The trial court held a pre-trial hearing on appellant's motion to quash the information. Appellant argued that the language on the face of the information was too vague, noting that he had a shopping cart full of items at the Wal-Mart, and not all of the items in his cart were alleged to have been stolen, but the indictment did not specify which ones were alleged to have been stolen. The State argued that the language in the information was specific enough to allege the stolen property, but it also argued that, even if the language was not sufficiently specific, appellant had adequate notice of what he was alleged to have stolen because the State provided him the offense report and various surveillance videos which depicted the allegedly stolen property and the property that appellant paid for at the Wal-Mart. Defense counsel agreed that he had received the offense report and surveillance videos, but he argued that the trial court could only consider the allegations on the face of the information and could not look to extrinsic evidence in determining the sufficiency of the information. The trial court denied appellant's motion to quash the information.
At trial, Patrick Morris testified that he was working as an asset protection associate at a Wal-Mart store in Stafford, Texas, on November 13, 2018. Morris observed a customer, later identified as appellant, in the automotive department of the store with a shopping cart full of merchandise, a backpack, and Wal-Mart bags resting on top of the cart. Appellant was with another man, who also had a shopping cart full of merchandise. Morris saw appellant select two gloves, rip them apart so that the tags—with the barcodes used to scan the items for purchase—fell on the floor, and place the gloves on top of his cart. Morris collected the discarded tags and followed appellant to the seasonal department. Appellant and his companion took Wal-Mart shopping bags from their backpack and started putting merchandise into the shopping bags.
Appellant did the same thing in the home décor section and in the men's wear section of the store before he went to the self-checkout area and met up with a woman. In the self-checkout area, Morris saw appellant scan and purchase some of the merchandise that was in his shopping cart, but he did not scan the merchandise that was concealed in the Wal-Mart bags. The trial court admitted a surveillance video from the Wal-Mart. Morris testified that the video showed appellant selecting a pair of gloves, breaking the tag off, and placing the gloves in his cart. This video did not show appellant at the self-checkout area.
Appellant and his two companions walked to the exit of the store, but after they passed the door greeter, Morris approached them with another asset protection associate, Christopher Caston. Morris asked all three of them to come with him and Caston to their office, where the associates looked over the receipts and the barcodes on each item in the respective shopping carts to determine what had been paid for and what had not. Morris and Caston determined that all of the items in the woman's shopping cart had been paid for. When they looked through appellant's cart, the associates did not find any gloves in the Wal-Mart bags; instead, they found the gloves in the backpack that appellant had been carrying with him.
Once Morris and Caston determined which items in appellant's cart had not been purchased, they took those items to Wal-Mart's service counter and had a separate receipt made up for these items so they could determine the price of the merchandise that had not been purchased. Morris testified that this receipt contained "a lot of items," and that the items were "food stuff mostly," plus a tool set and four pairs of gloves. The receipts listed each item and listed the total amount of the items, but the receipts did not list the prices of each specific item. The merchandise appellant had concealed in the Wal-Mart bags and in his backpack totaled $244.99.
Defense counsel objected to the admission of these two receipts on the basis that Morris did not create them and did not know "which values were applied to them." The trial court admitted the receipts over appellant's objection.
Christopher Caston testified that he became involved when appellant was still at the self-checkout register finalizing the purchase of some of the items in his cart. Caston and Morris waited until appellant and his companions were at the exit to the store before they approached, introduced themselves, and explained why they were stopping the group. Caston asked if anyone in the group had any unpaid merchandise and "[t]hey did admit to having merchandise that was unpaid for." He and Morris then escorted the three individuals to the loss prevention office "for recovery and identification." Caston stated that he and Morris determined, after comparing the items in the shopping cart and backpack to the items on the receipt appellant obtained after making his purchases, that appellant had over forty items of unpaid merchandise in his possession.
Stafford Police Department Officer R. Graves was dispatched to the Wal-Mart, and he made contact with appellant, who was not cooperative and provided a false name. Officer Graves was wearing a body camera while he interacted with appellant, and the trial court admitted a recording of the footage from this camera. Graves testified that Morris and Caston were visible on the body cam video searching through the items that had been in appellant's possession, determining which had been paid for and which had not, and separating the items into piles based on whether appellant had paid for the items. Morris and Caston did not immediately find the gloves that Morris had seen appellant place in his cart. On the body camera video, Graves told appellant, after he had read appellant the Miranda warnings, "I'm going to find it anyway, if you tell me now, I'll know." Appellant told Graves that he would find some gloves, and Graves pulled four pairs of gloves out of appellant's backpack. Graves testified that Morris and Caston provided him with two itemized receipts detailing the items that appellant did not pay for.
At the time of this incident, appellant had two active warrants for his arrest. In connection with his provision of a false name to Officer Graves, he was also charged with and convicted of failure to identify as a fugitive. Appellant's appeal from that conviction is pending in the Fourteenth Court of Appeals.
The jury found appellant guilty of the Class B misdemeanor offense of theft of property valued between $100 and $750. After the parties reached an agreement concerning appellant's punishment, the trial court sentenced appellant to fifty-nine days' confinement with credit for fifty-nine days served. Appellant filed a motion for new trial, which was overruled by operation of law. This appeal followed.
Sufficiency of the Evidence
In his first issue, appellant contends that the State failed to present sufficient evidence that he committed theft. Specifically, appellant argues that the State did not present sufficient evidence that he appropriated property or deprived the owner—Wal-Mart—of use and enjoyment of the property because there was no evidence that he left the Wal-Mart before being apprehended.
A. Standard of Review
When reviewing the sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict to determine whether any rational fact finder could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; Bohannan v. State , 546 S.W.3d 166, 178 (Tex. Crim. App. 2017). The jurors are the exclusive judges of the facts and the weight to be given to the testimony. Bartlett v. State , 270 S.W.3d 147, 150 (Tex. Crim. App. 2008) ; see Adames v. State , 353 S.W.3d 854, 860 (Tex. Crim. App. 2011) (stating that role of fact finder is "as the sole judge of the weight and credibility of the evidence after drawing reasonable inferences from the evidence"). The jury, as the sole judge of credibility, may accept one version of the facts and reject another, and it may reject any part of a witness's testimony. Rivera v. State , 507 S.W.3d 844, 853–54 (Tex. App.—Houston [1st Dist.] 2016, pet. ref'd) ; see Bohannan , 546 S.W.3d at 178 (stating that fact finder has duty to resolve conflicts in testimony, to weigh evidence, and to draw reasonable inferences from basic facts to ultimate facts).
We may not re-evaluate the weight and credibility of the evidence or substitute our judgment for that of the fact finder. Bohannan , 546 S.W.3d at 178 ; Williams v. State , 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We resolve any inconsistencies in the evidence in favor of the verdict. Bohannan , 546 S.W.3d at 178 ; see also Murray v. State , 457 S.W.3d 446, 448–49 (Tex. Crim. App. 2015) ("When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the verdict, and we defer to that determination."). A criminal conviction may be based on circumstantial evidence. Merritt v. State , 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). Circumstantial evidence is as probative as direct evidence in establishing guilt, and circumstantial evidence alone can be sufficient to establish guilt. Temple v. State , 390 S.W.3d 341, 359 (Tex. Crim. App. 2013) (quoting Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) ). "Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction." Hooper , 214 S.W.3d at 13.
B. Analysis
To convict appellant of the offense of theft, as charged in the information, the State was required to prove that he unlawfully appropriated property from Wal-Mart or Christopher Caston—food items, gloves, and tools—that were valued between $100 and $750, without the effective consent of the owner and with the intent to deprive the owner of the property. See TEX. PENAL CODE ANN. § 31.03(a), (b)(1), (e)(2)(A) ; Torres v. State , 466 S.W.3d 329, 334 (Tex. App.—Houston [14th Dist.] 2015, no pet.) ("An appropriation of property is unlawful if it is without the owner's effective consent."); Hawkins v. State , 214 S.W.3d 668, 670 (Tex. App.—Waco 2007, no pet.) ("Theft has three elements: (1) an appropriation of property (2) that is unlawful (3) and is committed with the intent to deprive the owner of the property."). The Penal Code defines "appropriate" to mean "to acquire or otherwise exercise control over property other than real property." TEX. PENAL CODE ANN. § 31.01(4)(B).
The gravamen of a theft offense is two pronged: "taking certain specified property away from its rightful owner or depriving that owner of its use or enjoyment." Byrd v. State , 336 S.W.3d 242, 250–51 (Tex. Crim. App. 2011). "Ownership and appropriation of property are both important." Id. at 251. The Court of Criminal Appeals has long held that "where the evidence shows there was a reduction of the property to the control and manual possession of the defendant, removal of the property from the premises is not necessary for commission of the offense of theft." Baker v. State , 511 S.W.2d 272, 272 (Tex. Crim. App. 1974) ; see Hill v. State , 633 S.W.2d 520, 521 (Tex. Crim. App. 1981) ("[I]t is not essential that the property be taken off the premises; it is instead only essential that the evidence show an ‘exercise of control over the property,’ coupled with an ‘intent to deprive the owner of the property.’ "); see also State v. Ford , 537 S.W.3d 19, 24 (Tex. Crim. App. 2017) (stating, in context of discussing whether officer had probable cause to arrest defendant for theft, that court had recognized in Hill "that a customer of a store can exercise control over property with an intent to deprive, even if the customer has not yet left the store with the property"). "Removal of the object from its customary location is sufficient to show such reduction to the control or manual possession as is required." Baker , 511 S.W.2d at 272. "[A]sportation—the act of carrying away or removing property—is not an element of statutory theft." Hawkins , 214 S.W.3d at 670 ; see Barnes v. State , 513 S.W.2d 850, 851 (Tex. Crim. App. 1974) ("Having taken possession and control of the automobile by entering it and starting the motor, with his hands on the steering wheel, with the obvious intent to drive it away, the taking was complete although appellant was interrupted before he had time to abscond with it.").
This Court and our sister intermediate courts have held, in several unpublished memorandum opinions, that it is not necessary for the defendant to succeed in carrying the stolen property away from the scene. See, e.g., Solis v. State , No. 08-18-00101-CR, 2019 WL 3940961, at *8 (Tex. App.—El Paso Aug. 21, 2019, no pet.) (mem. op., not designated for publication) ("Appellant's argument below was that she never left the store with either goods or money. Yet neither are required for a complete theft."); Alexander v. State , No. 01-18-00496-CR, 2019 WL 3121859, at *4 (Tex. App.—Houston [1st Dist.] July 16, 2019, no pet.) (mem. op., not designated for publication) (holding, in "bank jugging" case, that evidence was sufficient to support finding that defendant unlawfully appropriated property when he tried to remove bag holding money from seat of car but could not successfully flee scene with bag because it was attached to car with steel cable); Willis-Webb v. State , No. 01-15-00727-CR, 2016 WL 6277423, at *4 (Tex. App.—Houston [1st Dist.] 2016, pet. ref'd) (mem. op., not designated for publication) (holding, in revocation of community supervision case, that evidence was sufficient to show defendant committed theft from Wal-Mart when he was stopped by loss prevention officer inside vestibule to store and defendant abandoned unpaid-for merchandise and fled scene); Hicks v. State , No. 12-13-00158-CR, 2014 WL 1922619, at *3 (Tex. App.—Tyler 2014, no pet.) (mem. op., not designated for publication) (holding, in theft case, that defendant was not entitled to lesser-included offense instruction on attempted theft when defendant placed jewelry inside her purse, but removed jewelry before leaving store after being confronted by manager and security officer).
Appellant contends that the State presented insufficient evidence to support his conviction for theft because he "never made it out of the Wal-Mart" and "the testimony is unclear how far Appellant made it with the items or if he even proceeded past a register." The State argues that a person can commit theft without completely leaving the store. We agree with the State.
Patrick Morris, an asset protection associate at the Wal-Mart store, testified that he observed appellant and another man in the automotive department of the store with a shopping cart full of merchandise, a backpack, and several Wal-Mart shopping bags. He witnessed appellant select a pair of gloves, rip the tags off of the gloves, and place the gloves on top of his cart. He followed appellant to the seasonal department where he saw appellant take Wal-Mart bags from his backpack and start putting the merchandise into the bags. Morris saw appellant do the same thing in two other departments in the store.
In the self-checkout area of the store, Morris saw appellant scan and pay for some of the merchandise that was located in his shopping cart, but appellant did not scan or pay for the items he had placed in the Wal-Mart bags. Morris testified that he waited until appellant had left the self-checkout area and passed the door greeter, an area past all "points of sale" in the Wal-Mart, and was walking to the exit before he and Christopher Caston, another asset protection associate, stopped appellant and asked to speak with him. In their office, Morris and Caston examined the receipt that appellant had received from his purchase and compared it to the items appellant had in his possession. Appellant and his companion admitted to Caston that they had unpaid-for merchandise in their possession, and appellant told Officer Graves that he would find gloves in his backpack. Morris and Caston searched appellant's cart, the Wal-Mart bags, and his backpack and determined that appellant had over forty items in his possession that he had not paid for, including food items, four pairs of gloves, and a tool set. An associate scanned these items and determined that the value of the unpaid-for merchandise was $244.99.
Although appellant did not leave the Wal-Mart before he was confronted by Morris and Caston, this does not mean that the State failed to present sufficient evidence that appellant appropriated the stolen property. Morris and Caston both testified that appellant had passed all "points of sale" and was at the exit to the store when they stopped him. By concealing items in Wal-Mart shopping bags and failing to pay for those items, appellant exercised control over the property and reduced it to his possession. See Hill , 633 S.W.2d at 521 (holding that, in theft case, it was not essential that property be taken off premises; instead, essential element of offense was that defendant exercised control over property coupled with intent to deprive owner of property); Baker , 511 S.W.2d at 272 ("[W]here the evidence shows there was a reduction of the property to the control and manual possession of the defendant, removal of the property from the premises is not necessary for commission of the offense of theft."); Hawkins , 214 S.W.3d at 670 ("[A]sportation—the act of carrying away or removing property—is not an element of statutory theft.").
Considering the evidence in the light most favorable to the verdict, we conclude that the State presented sufficient evidence from which the jury could determine, beyond a reasonable doubt, that appellant unlawfully appropriated property from the Wal-Mart. See TEX. PENAL CODE ANN. § 31.03(a), (b)(1) ; Hawkins , 214 S.W.3d at 670 ("Theft has three elements: (1) an appropriation of property (2) that is unlawful (3) and is committed with the intent to deprive the owner of the property."). We hold that the State presented sufficient evidence to support appellant's conviction for theft.
We overrule appellant's first issue.
Motion to Quash the Information
In his second issue, appellant contends that the trial court erred by denying his motion to quash the information because the information did not specifically describe the items that appellant was alleged to have stolen and, as a result, he did not receive adequate notice to prepare a defense.
The sufficiency of a charging instrument is a question of law. Hughitt v. State , 583 S.W.3d 623, 626 (Tex. Crim. App. 2019). We therefore review a trial court's decision to deny a motion to quash an information under a de novo standard. Lawrence v. State , 240 S.W.3d 912, 915 (Tex. Crim. App. 2007) ; Williams v. State , 499 S.W.3d 498, 499 (Tex. App.—Houston [1st Dist.] 2016, pet. ref'd) ; see State v. Castorena , 486 S.W.3d 630, 632 (Tex. App.—San Antonio 2016, no pet.) (stating that when resolution of question of law does not depend on credibility and demeanor of witnesses, trial court is in no better position than appellate court to make determination, and de novo review is appropriate).
Both the United States and the Texas Constitution provide that a criminal defendant has the right to notice of the charges brought against him. State v. Moff , 154 S.W.3d 599, 601 (Tex. Crim. App. 2004) ; see U.S. CONST. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation...."); TEX. CONST. art. I, § 10 ("In all criminal prosecutions the accused ... shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof."). Thus, the charging instrument—in this case, the information—must be specific enough to inform the accused of the nature of the accusation against him so that he may prepare a defense. Moff , 154 S.W.3d at 601 ; see State v. Barbernell , 257 S.W.3d 248, 250 (Tex. Crim. App. 2008).
The Code of Criminal Procedure also contains several provisions that provide guidance with respect to the specificity of an information. An information should state everything "which is necessary to be proved." See TEX. CODE CRIM. PROC. ANN. art. 21.03 (providing such with respect to indictments); id. art. 21.23 ("The rules with respect to allegations in an indictment and the certainty required apply also to an information."). The information must be certain enough "such as will enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense." See id. art. 21.04. And the information shall be sufficient if it
charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment....
Id. art. 21.11.
Generally, a charging instrument that tracks the language of the applicable statute will satisfy constitutional and statutory notice requirements. Hughitt , 583 S.W.3d at 626 ; Moff , 154 S.W.3d at 602. When a statute defines the manner or means of commission of an offense in several alternative ways, the charging instrument fails for lack of specificity if it does not identify the specific statutory means. Curry v. State , 30 S.W.3d 394, 398 (Tex. Crim. App. 2000). The State is not required to plead "evidentiary matters" in the charging instrument. Id. In some cases, however, a charging instrument that tracks the statutory language may be insufficient to provide a defendant with adequate notice. State v. Zuniga , 512 S.W.3d 902, 907 (Tex. Crim. App. 2017) ; Barbernell , 257 S.W.3d at 251. This is the case "when the statutory language fails to be completely descriptive." Zuniga , 512 S.W.3d at 907 ; State v. Mays , 967 S.W.2d 404, 407 (Tex. Crim. App. 1998) ("A statute which uses an undefined term of indeterminate or variable meaning requires more specific pleading in order to notify the defendant of the nature of the charges against him."). In this case, "more particularity is required to provide adequate notice." Zuniga , 512 S.W.3d at 907.
We engage in a two-step analysis when analyzing whether an indictment provides adequate notice. Id. First, we must identify the elements of the offense. Id. Second, we must consider whether the statutory language is sufficiently descriptive of the charged offense. Id. In this case, appellant focuses on the second step of the analysis, contending that the allegation in the information that he appropriated "food items, gloves, and tools" was not sufficiently descriptive to give him adequate notice of the offense with which he was charged such that he could prepare a defense.
Code of Criminal Procedure article 21.09 provides that, "[i]f known, personal property alleged in an indictment shall be identified by name, kind, number, and ownership." TEX. CODE CRIM. PROC. ANN. art. 21.09. The Court of Criminal Appeals has held that "a descriptive averment of personal property is adequate if it alleges (1) quantity; (2) the general type of property, as long as it is more specific than merely stating ‘property’ or ‘merchandise;’ (3) ‘ownership’ of the property; and (4) if necessary, the jurisdictional value of the property." Wood v. State , 632 S.W.2d 734, 736 (Tex. Crim. App. 1982) ; see Gollihar v. State , 46 S.W.3d 243, 258 (Tex. Crim. App. 2001) (" ‘Number,’ within the meaning of [ article 21.09 ], has been interpreted to mean quantity.").
"A ground for an exception to the form of an indictment exists if the indictment fails to allege facts sufficient to give the defendant notice of the precise offense with which he is charged." Sanchez v. State , 120 S.W.3d 359, 367 (Tex. Crim. App. 2003) ; Valero Ref.-Tex. L.P. v. State , 203 S.W.3d 556, 564 (Tex. App.—Houston [14th Dist.] 2006, no pet.) ("When the State fails to allege facts sufficient to give a defendant notice of the precise offense charged and to bar subsequent prosecutions for the same offense, the defect is one of form.").
Under Code of Criminal Procedure article 21.19, even when there is a showing that the trial court erred by refusing to quash an indictment based on a defect in form, we may affirm the conviction "as long as the defect did not prejudice the defendant's substantial rights." Sanchez , 120 S.W.3d at 367 ; TEX. CODE CRIM. PROC. ANN. art. 21.19 ("An indictment shall not be held insufficient, nor shall the trial, judgment or other proceedings thereon be affected, by reason of any defect of form which does not prejudice the substantial rights of the defendant."). The first step of a harm analysis under article 21.19 is to determine whether the indictment "failed to convey some requisite item of ‘notice.’ " Sanchez , 120 S.W.3d at 367 (quoting Adams v. State , 707 S.W.2d 900, 903 (Tex. Crim. App. 1986) ). If the indictment did not give sufficient notice, "the next step is to decide whether in the context of the case, this had an impact on the defendant's ability to prepare a defense, and, finally, how great an impact." Id. (quoting Adams , 707 S.W.2d at 903 ). We consider the entire record in making this determination. Adams , 707 S.W.2d at 903.
Assuming, without deciding, that the information in this case failed to sufficiently describe the items that appellant allegedly appropriated from Wal-Mart and did not provide him with notice, we conclude that any error in denying his motion to quash did not prejudice his substantial rights and, therefore, did not cause him harm. See Sanchez , 120 S.W.3d at 367 ; TEX. CODE CRIM. PROC. ANN. art. 21.19.
At the hearing on appellant's motion to quash, the State first argued that the information itself provided sufficient notice to appellant, but it also argued that, even if the trial court found that the allegations on the face of the indictment were not sufficient to provide notice, the State had given defense counsel a copy of the offense report, which itemized the list of items appellant allegedly stole, as well as turned over the surveillance video and Officer Graves's body camera video, which showed Morris and Caston reviewing appellant's receipt, determining which items appellant paid for and which items he did not pay for, and dividing these items into separate piles. The State thus argued that, when considering the offense report and the video recordings, appellant had sufficient notice of what he was alleged to have stolen from Wal-Mart. Defense counsel agreed that he had been given a copy of the offense report and that he had seen the video recordings, but he argued that, in determining whether a charging instrument provides sufficient notice to prepare a defense, the trial court could only look to the face of the charging instrument itself and could not look to offense reports or other extrinsic evidence.
The offense report is not part of the appellate record.
Appellant was charged in a one-count information with theft of "food items, gloves, and tools," valued between $100 and $750, from Wal-Mart on or about November 13, 2018. Defense counsel acknowledged that he received a copy of the offense report, and he did not challenge the State's assertion that the offense report contained an itemized list of the merchandise that appellant allegedly did not pay for at the Wal-Mart. Defense counsel also acknowledged that he received a copy of a Wal-Mart surveillance video and Officer Graves's body camera video, the latter of which depicted Morris and Caston examining appellant's receipt and sorting which items appellant had paid for and which he had not.
During trial, Morris testified concerning his investigation of appellant, including his observation of appellant removing tags from a pair of gloves, concealing items in Wal-Mart shopping bags, and not scanning those items in the shopping bags for purchase at the self-checkout while appellant did scan and purchase other items. After Morris and Caston stopped appellant, they took him to their office where they used the receipt that he received from his purchase to determine which items in his shopping cart he had paid for and which he had not. Morris and Caston separated these items into separate piles, and their actions were depicted on Officer Graves's body camera, which the State disclosed to appellant pre-trial. Morris and Caston then took the items that they had determined were not on appellant's receipt, and therefore were not purchased, to a customer service representative who scanned these items to determine the total value of the unpaid-for merchandise. Two receipts were generated—one of which listed forty-three food items and the toolset and the other of which listed four pairs of gloves—and Morris and Caston determined that the value of these items totaled $244.99. These receipts stated the total value of the items, but they did not list specific prices for each individual item.
During trial, defense counsel cross-examined Morris concerning Wal-Mart's policy of not approaching a suspected shoplifter until after the person had passed the last point of sale and whether Morris had a quota for apprehending shoplifters that he was required to meet. Defense counsel also questioned Morris about whether the self-checkout area was under video surveillance, and Morris responded that it was. Morris agreed with defense counsel that no one asked him to produce a video recording of appellant at the self-checkout area. Defense counsel did not cross-examine Caston. Counsel cross-examined Officer Graves about whether, in shoplifting cases, pictures are typically taken of the allegedly stolen merchandise, and Graves testified that, normally, Wal-Mart employees take such pictures, which becomes a part of the police offense report. Graves also agreed with defense counsel that usually there is a surveillance video of activity occurring at the registers, but he did not ask Morris or Caston for video of appellant at the self-checkout area. Graves also agreed that he played no role in determining which items were paid for versus which items were stolen or the value of the items allegedly stolen and that he would not be able to testify concerning the value of the items.
During closing argument, defense counsel focused on determining the value of the items allegedly stolen, stating that the prosecutors did not bring a witness to testify concerning the value of the items to Wal-Mart or how those values were determined; instead, the State relied on Morris's testimony concerning what the receipts listed as the total value of the items. Defense counsel also argued that Morris testified that he saw appellant conceal merchandise but could not remember every item allegedly stolen, and the specific items allegedly stolen were not brought before the jury. Counsel stated:
We don't know what specific items were there. We don't have pictures of them. So, if [Morris] can't say what specific items were there, how can we just rely on some random receipts or anything else, right? That's a leap. That leap is reasonable doubt; and if you don't listen to that leap and you don't understand that leap, then you're not holding the State to their burden.
Defense counsel also faulted the State for failing to call appellant's companions as witnesses. Counsel further argued that the jurors could find reasonable doubt if they did not believe the State proved that the value of the items was at least $100, if they needed to see the surveillance video of the self-checkout area, or if they did not believe Wal-Mart had actually suffered a loss.
We conclude that, despite the information's failure to specifically describe each item that appellant allegedly appropriated from Wal-Mart, appellant had adequate notice through the pre-trial disclosures of the offense report and the video recordings. Appellant challenged Morris and Caston's value determination at trial, and he argued that reasonable doubt existed concerning whether the value of the items was over $100, pointing out that Morris and Caston had no role in determining the value of the items, the State failed to request or provide surveillance video of appellant at the self-checkout area, and the State did not present pictures of the items allegedly stolen, instead relying on Morris and Caston's testimony and the receipts that were admitted. We conclude that, in the context of the record as a whole, the failure of the information to specifically describe each item did not impact appellant's ability to prepare a defense. See Sanchez , 120 S.W.3d at 367 ; Adams , 707 S.W.2d at 903. We hold that any error in the trial court's denial of appellant's motion to quash did not prejudice appellant's substantial rights and, therefore, does not constitute reversible error. See Sanchez , 120 S.W.3d at 367 ; TEX. CODE CRIM. PROC. ANN. art. 21.19 ("An indictment shall not be held insufficient, nor shall the trial, judgment or other proceedings thereon be affected, by reason of any defect of form which does not prejudice the substantial rights of the defendant.").
We overrule appellant's second issue.
Conclusion
We affirm the judgment of the trial court.