No. 05-06-01267-CR
Opinion filed April 17, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas Trial Court, Cause No. F06-20541-VS.
Before Justices LANG, LANG-MIERS, and MAZZANT.
Opinion By Justice LANG-MIERS.
A jury convicted Vernon Erwin Satchell of state jail felony theft. See Tex. Pen. Code Ann. § 31.03(a), (e)(4)(D) (Vernon Supp. 2006). Appellant pleaded true to two prior felony convictions, and the jury assessed punishment at confinement for eight years. Appellant appeals, arguing the trial court erred (1) by allowing the State to amend the indictment on the day of trial, and (2) by denying his requested article 38.23 jury instruction. We affirm the trial court's judgment.
Background
Appellant testified he purchased thirty-one digital video disc (DVD) and video game cases that had been made to resemble cases from Blockbuster. He intended to take these dummy cases into Blockbuster and swap them for real merchandise when employees were not looking. Appellant said he concealed the dummy cases under his jacket and entered a Blockbuster store in Desoto, Texas. He testified he thought the employees noticed him when he entered the store, and he decided not to swap the cases. Instead, he testified he asked Shellie Spencer, the assistant store manager, about applying for a membership for his wife. Appellant told Spencer he would take the form home to his wife to complete, and he started to leave. Spencer testified that, in the meantime, she had noticed appellant's jacket appeared to be "bulgy" in the back, and she made eye contact with Santos Rodriguez, the store manager, as a signal to keep an eye on appellant. When appellant walked out the first set of doors to the store, the security sensor sounded. Rodriguez testified he asked appellant to step back into the store, but appellant refused and ran out of the store. Rodriguez chased after him. Spencer said appellant dropped two DVDs on the ground as he ran out the second set of doors. At the same time Rodriguez chased appellant, Spencer telephoned 9-1-1. She also picked up the two DVDs appellant dropped on the ground. Appellant ran into a nearby parking lot and past a police officer who had just driven into the parking lot. About this same time, Rodriguez ran into the parking lot, stopped the officer, and told him he was chasing a person who had just stolen merchandise from a Blockbuster store. The officer cut appellant off with the vehicle, but appellant ran into the bushes. The officer followed on foot and detained appellant. As he did so, several Blockbuster DVDs fell out of appellant's jacket. The officer noticed a bulge in appellant's jacket and patted him down for weapons. When he raised appellant's jacket to pat his waist, several more DVDs and video games with the Blockbuster logo and security tags fell out of appellant's jacket. The officer arrested appellant. Soon thereafter, Officer Grady Kirkland arrived in response to the 9-1-1 dispatch call. Officer Kirkland recovered the DVDs and video games and carried them back to Blockbuster, where he made notes, by title and price, of twenty-one DVDs and ten video games, including the two DVDs appellant dropped as he left the store. Because appellant had two prior theft convictions, the State charged him with state jail felony theft of twenty-one DVDs and ten video games valued at less than $1500. See Tex. Pen. Code Ann. § 31.03(a), (e)(4)(D). Alteration of Indictment
On the day of trial, the State asked for and was granted permission to delete the quantities of items stolen (the words "twenty-one" and "ten") from the indictment. In his first issue, appellant argues the trial court erred by allowing the State to amend the indictment on the day of trial and refusing to grant him ten days' notice to prepare to defend the new indictment as required by statute. See Tex. Code Crim. Proc. Ann. art. 28.10(a) (Vernon 2006). The State argues that it did not amend the indictment but, instead, abandoned surplusage in the indictment and that article 28.10 does not apply. We conclude we do not need to decide whether the deletion of the quantities from the indictment constituted an amendment of the indictment or an abandonment of surplusage because appellant has not shown reversible error. Appellant argues that article 28.10 error is not subject to a harm analysis, citing Eastep v. State, 941 S.W.2d 130, 135 (Tex.Crim.App. 1997) (holding violation of article 28.10 not subject to harm analysis), overruled on other grounds by Riney v. State, 28 S.W.3d 561 (Tex.Crim.App. 2000) and by Gollihar v. State, 46 S.W.3d 243 (Tex.Crim.App. 2001). We disagree. In Wright v. State, 28 S.W.3d 526, 531-32 (Tex.Crim.App. 2000), the appellant raised article 28.10 error. The court of criminal appeals did not decide the merits of appellant's argument that the indictment was amended in violation of article 28.10 because it concluded appellant could not show harm. Id. (citing Tex. R. App. P. 44.2 and Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App. 1997) ( superceded by statute on other grounds)); see Flores v. State, 139 S.W.3d 61, 65-66 (Tex.App.-Texarkana 2004, pet. ref'd) (holding article 28.10 error subject to harm analysis); Garza v. State, 50 S.W.3d 559, 565 (Tex.App.-Houston [1st Dist.] 2001, no pet.) (holding trial court erred by amending indictment, but declining to address the matter of harm in light of court's disposition of legal sufficiency issue). Accordingly, we apply the harmless error analysis to the facts of this case. Harmful error occurs when the error affects a defendant's substantial rights. See Tex. R. App. P. 44.2(b); Flores, 139 S.W.3d at 65-66. To determine whether a trial court's error affected a substantial right, we consider whether the indictment, as written, informed the defendant of the charge against him sufficiently to allow him to prepare an adequate defense at trial, and whether prosecution under the deficiently-drafted indictment would subject the defendant to the risk of being prosecuted later for the same crime. Gollihar v. State, 46 S.W.3d 243, 248 (Tex.Crim.App. 2001) (quoting United States v. Sprick, 233 F.3d 845, 853 (5th Cir. 2000)). An indictment is sufficient when it provides notice to the defendant of the charge against him; enables the court, on conviction, to pronounce the proper judgment; and enables the accused to plead the bar of double jeopardy. See Lehman v. State, 792 S.W.2d 82, 84 (Tex.Crim.App. 1990). An indictment alleging theft is sufficient if it charges that the defendant, without the effective consent of the owner, appropriated property with the intent to deprive the owner of the property, describes the property allegedly stolen, and adequately alleges its value. See Tex. Pen. Code Ann. § 31.03(a); Ex parte Sewell, 606 S.W.2d 924, 924 (Tex.Crim.App. 1980). In this case, the original indictment tracked the elements of theft as stated in the statute, described the property appellant allegedly stole as twenty-one DVDs and ten video games, and valued the property at less than $1500. We conclude the original indictment provided appellant all the notice to which he was entitled. We further conclude that the deletion of the quantities from the indictment did not implicate appellant's double jeopardy protections. Double jeopardy bars offenses for which proof was offered at trial. Parker v. State, 985 S.W.2d 460, 464 n. 3 (Tex.Crim.App. 1999). Here, the State offered into evidence Officer Kirkland's list of twenty-one DVDs and ten video games the State alleged that appellant stole from Blockbuster. As a result, the State is prohibited from further charging appellant with offenses for these DVDs and video games. See id; Ex parte Goodman, 152 S.W.3d 67, 71-72 (Tex.Crim.App. 2004) (discussing double jeopardy implications); Gollihar, 46 S.W.3d at 258. We conclude that error, if any, in allowing the State to delete the quantities alleged in the indictment on the day of trial did not affect appellant's substantial rights. We overrule appellant's first issue. Article 38.23 Jury Instruction
In his second issue, appellant argues the trial court erroneously denied his request for an instruction pursuant to article 38.23 of the code of criminal procedure. Appellant contends the Blockbuster employees had no probable cause to believe he was shoplifting and that his testimony raised a fact issue about whether his subsequent arrest without a warrant was unlawful. Article 38.23 states that, in any case where the evidence raises a fact issue as to whether it was obtained in violation of the United States Constitution or laws of the State of Texas, "the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then . . . the jury shall disregard any such evidence so obtained." Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 2005). A fact issue about whether evidence was legally obtained may be raised "from any source, and the evidence may be strong, weak, contradicted, unimpeached, or unbelievable." Garza v. State, 126 S.W.3d 79, 85 (Tex.Crim.App. 2004) (citing Wilkerson v. State, 933 S.W.2d 276, 280 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd)). However, an article 38.23 instruction is required only if there is a factual dispute about how the evidence was obtained. Id. At trial, appellant requested an article 38.23 instruction because he was arrested without a warrant and because the property he allegedly stole was not taken before a magistrate within 48 hours. On appeal, he argues the trial court was required to give the article 38.23 instruction because his testimony was sufficient to raise a fact issue about whether the Blockbuster employees had probable cause to effectuate a citizen's arrest. Assuming, without deciding, that appellant's trial objection was sufficient to preserve error on the issue raised on appeal, we conclude appellant's testimony did not raise a fact issue concerning how the evidence was obtained. Contrary to appellant's argument, there is no evidence a Blockbuster employee made a citizen's arrest or that a Blockbuster employee searched appellant and seized the property at issue in this case. Instead, the evidence shows a police officer stopped appellant because Rodriguez told the officer appellant had just stolen merchandise from Blockbuster. And an officer may make a temporary investigative detention of a person if the officer has a reasonable suspicion that some activity out of the ordinary is or has occurred, some suggestion to connect the detainee with the unusual activity, and some indication that the activity is related to a crime. Davis v. State, 947 S.W.2d 240, 244 (Tex.Crim.App. 1997) (citing Garza v. State, 771 S.W.2d 549, 558 (Tex.Crim.App. 1989)). As the officer stopped appellant, DVD and video game cases fell out of appellant's jacket. And when the officer patted appellant for weapons, more DVD and video game cases fell out of appellant's jacket. All of these cases contained the Blockbuster logo and security tags. Appellant does not dispute these facts. We conclude the trial court did not err by refusing to submit a 38.23 instruction to the jury because appellant did not raise a fact issue about how the evidence was found. See Garza, 126 S.W.3d at 87-88 (citing Campbell v. State, 492 S.W.2d 956 (Tex.Crim.App. 1973) and Brooks v. State, 707 S.W.2d 703, 706 (Tex.App.-Houston [1st Dist.] 1986, pet. ref'd) (holding where essential facts concerning search or arrest not in dispute, legality of search or arrest is question of law, not of fact)). We overrule appellant's second issue. We affirm the trial court's judgment.