Opinion issued February 6, 2025
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00650-CR ——————————— ANSEL PENNYGRAPH, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court Harris County, Texas Trial Court Case No. 1817185
MEMORANDUM OPINION
A jury convicted appellant Ansel Pennygraph of the first-degree felony
offense of engaging in organized criminal activity based on the predicate offenses
of aggregate theft and tampering with a governmental record. See TEX. PENAL CODE
§§ 71.02(a)(1), (13), (b). The jury also found that he used or exhibited a deadly weapon during commission of the offense, and it assessed his punishment at thirty-
five years’ confinement. In his sole issue on appeal, Pennygraph contends that
legally insufficient evidence supported his conviction because aggregate theft is not
a statutorily authorized predicate offense of engaging in organized criminal activity.
We affirm, largely because a case decided by this Court after the close of the briefing
forecloses Pennygraph’s argument here. See Yonko v. State, — S.W.3d —, No. 01-
23-00062-CR, 2024 WL 4594131 (Tex. App.—Houston [1st Dist.] Oct. 29, 2024,
pet. filed).
Background
Between 2016 and 2023, Pennygraph worked with others to steal wheels and
tires off numerous vehicles around the Houston area. During the thefts, Pennygraph
drove a white minivan with a stolen license plate. He and others would find parked
cars in the middle of the night, remove the wheels and tires, leave the wheelless
vehicles on concrete blocks, and load the wheels and tires into the minivan.
Pennygraph and others stored the stolen wheels and tires in a warehouse, and they
sold them through Facebook Marketplace. Pennygraph also attempted to steal an
$80,000 vehicle, but the owner caught him and shot a firearm at the white minivan.
Law enforcement became aware of the thefts and began surveilling the
warehouse. Officers saw Pennygraph frequent the warehouse, unload wheels and
tires from the minivan, and store them in the warehouse. They also saw Pennygraph
2 load wheels and tires into the minivan and leave the warehouse, which corresponded
to deliveries of wheels and tires sold through Facebook Marketplace. Pennygraph
was eventually arrested after leading police on car chases. He wore a GPS ankle
monitor during some of the thefts, and data from the monitor showed that he was
present at the locations of these thefts around the time they occurred.
Police obtained a warrant and searched the warehouse. They discovered fifty-
six wheels and tires; a loaded revolver; a Halloween mask; various license plates,
including one that was stolen; two stolen motorcycles; two stolen motor vehicles;
and a stolen scooter. Police also obtained a warrant to search Pennygraph’s cell
phone. They found text messages between Pennygraph and others discussing the
thefts and subsequent resale of wheels and tires. Additionally, police obtained a
warrant to search Pennygraph’s apartment, where they found registration documents
for the white minivan. The value of stolen wheels and tires connected to Pennygraph
totaled more than $150,000.
Pennygraph was indicted for the first-degree felony offense of engaging in
organized criminal activity based on two predicate offenses: aggregate theft of
property valued between $150,000 and $300,000 and tampering with a governmental
record. See TEX. PENAL CODE § 71.02(a)(1), (13). The indictment contained three
enhancement paragraphs. The first two paragraphs alleged that Pennygraph used or
exhibited two deadly weapons—a firearm and a motor vehicle, respectively—during
3 commission of the offense. The third paragraph alleged that Pennygraph had a prior
conviction for the felony offense of assault of a family member by choking. See id.
§ 12.42(c)(1) (raising minimum punishment to fifteen years’ imprisonment on trial
of first-degree felony if State proves that defendant was previously finally convicted
of felony other than state jail felony). Pennygraph did not object to the indictment.
The jury found Pennygraph guilty of engaging in organized criminal activity
based on aggregate theft between $150,000 and $300,000 and tampering with a
governmental record, and it found that he used or exhibited a deadly weapon during
commission of the offense.1 During the punishment phase, the jury did not find that
Pennygraph had committed a prior felony offense. The jury sentenced him to thirty-
five years’ confinement. This appeal followed.
1 As stated above, Pennygraph was indicted for engaging in organized criminal activity based on two predicate offenses: aggregate theft and tampering with a governmental record. The predicate offense of aggregate theft made the engaging offense a first-degree felony, while the predicate offense of tampering made the engaging offense a second-degree felony. See TEX. PENAL CODE §§ 71.02(b) (“[A]n offense under this section is one category higher than the most serious [predicate] offense . . . that was committed.”), 31.03(e)(6)(A) (providing that theft between $150,000 and $300,000 is second-degree felony), 37.10(c)(1) (providing that tampering with governmental record with intent to defraud or harm another is state jail felony), 12.35(c)(1) (providing that state jail felony offense may be enhanced to third-degree felony if jury finds deadly weapon was used or exhibited during commission of offense). Pennygraph does not challenge his conviction for engaging based on the predicate offense of tampering with a governmental record. However, because the engaging offense based on the tampering predicate is a second-degree felony, he requests that this Court reform the judgment to reflect a conviction for a second-degree felony offense and remand for a new trial on punishment. 4 Aggregate Theft as a Predicate Offense
In his sole issue on appeal, Pennygraph argues that the evidence was legally
insufficient to support his conviction because aggregate theft is not a statutory
predicate offense of engaging in organized criminal activity. This issue presents a
pure question of statutory interpretation. Pennygraph does not argue that the
evidence was insufficient to otherwise prove the elements of the engaging offense
or to prove the aggregate theft predicate offense.
A. Standard of Review
The parties agree that the proper standard of review in this appeal is the
standard for legal sufficiency of the evidence.2 In conducting a legal sufficiency
2 In a sense, Pennygraph’s issue appears to challenge the sufficiency of the indictment rather than the sufficiency of the evidence. As the State correctly notes, Pennygraph “does not challenge the sufficiency of the evidence in his case in the traditional sense” because “he does not claim that the actual evidence presented against him at trial is insufficient to support the essential elements” of engaging in organized criminal activity, aggregate theft, and tampering with a governmental record. The distinction matters because Pennygraph did not object to any alleged defect, error, or irregularity in the form or substance of the indictment before trial. See TEX. CODE CRIM. PROC. art. 1.14(b). In Yonko v. State, this Court held that the defendant failed to preserve for appellate review a substantively identical issue by failing to object to the indictment. See — S.W.3d —, No. 01-23-00062-CR, 2024 WL 4594131, at *9 (Tex. App.—Houston [1st Dist.] Oct. 29, 2024, pet. filed). However, we also acknowledge that the Court of Criminal Appeals has applied a legal sufficiency standard to review a similar issue even in the absence of an objection. See Walker v. State, 594 S.W.3d 330, 336–37 (Tex. Crim. App. 2020) (applying legal sufficiency standard of review to determine whether possession of controlled substance with intent to deliver is proper predicate offense under engaging statute and stating that “in some cases, sufficiency of the evidence also turns on the meaning of the statute under which the defendant has been prosecuted”). We need not resolve this sub-issue today, however, because the parties agree that Pennygraph’s issue is properly before us and that the proper standard of review is 5 review, we generally review the evidence to determine whether a rational juror could
have found the essential elements of the crime beyond a reasonable doubt based on
the evidence and reasonable inferences from it. Walker v. State, 594 S.W.3d 330,
335 (Tex. Crim. App. 2020). However, sufficiency of the evidence can also turn on
the meaning of the statute under which the defendant was prosecuted. Id. at 336. In
this circumstance, we consider whether certain conduct actually constitutes an
offense under the relevant statute. Id.
We review issues of statutory construction de novo. Id. When interpreting a
statute, we strive to effectuate the collective intent or purpose of the Legislature.
Hughitt v. State, 583 S.W.3d 623, 626 (Tex. Crim. App. 2019). We read the statute
as a whole and apply the plain meaning of the statutory language unless the statute
is ambiguous or the plain meaning leads to an absurd result. Id.; see Lang v. State,
561 S.W.3d 174, 180 (Tex. Crim. App. 2018) (stating that statute is ambiguous when
reasonably well-informed persons may understand it in two or more different senses,
and statute is unambiguous when it reasonably permits only one understanding)
(quotation and citation omitted). To determine the plain meaning, we consider the
statute’s literal text and construe the words according to rules of grammar and usage.
Hughitt, 583 S.W.3d at 627. We presume that every word in a statute has been used
legal sufficiency of the evidence, and resolution of this sub-issue will not affect the disposition of this appeal. See TEX. R. APP. P. 47.1. 6 for a purpose and that each word, clause, and sentence should be given effect if
reasonably possible. Id.
B. Analysis
Pennygraph argues that the engaging statute enumerates “theft” as a predicate
offense, but it does not enumerate “aggregate theft” as a predicate offense. He further
argues that theft and aggregate theft are separate offenses, and therefore aggregate
theft is not a proper predicate offense under the engaging statute. The State responds
that theft and aggregate theft are not separate offenses, and therefore aggregate theft
is part of the enumerated predicate offense of theft.
Pennygraph was charged with and convicted of engaging in organized
criminal activity based on the predicate offense of aggregate theft between $150,000
and $300,000. Relevant here, Penal Code section 71.02 provides that a person
commits the offense of engaging if—with the intent to establish, maintain, or
participate in a combination or in the profits of a combination or as a member of a
criminal street gang—the person commits or conspires to commit one or more
predicate offenses, including “theft.”3 TEX. PENAL CODE § 71.02(a)(1). Section
3 Section 71.01 defines “combination” as “three or more persons who collaborate in carrying on criminal activities, although: (1) participants may not know each other’s identity; (2) membership in the combination may change from time to time; and (3) participants may stand in a wholesaler-retailer or other arm’s-length relationship in illicit distribution operations.” TEX. PENAL CODE § 71.01(a). That section defines “criminal street gang” as “three or more persons having a common identifying sign or symbol or an identifiable leadership who continuously or regularly associate in the commission of criminal activities.” Id. § 71.01(d). 7 71.02 lists only “theft” as a predicate offense; it does not list “aggregate theft” as a
separate predicate offense. See id. § 71.02(a). The punishment category of engaging
is “one category higher than the most serious [predicate] offense . . . that was
committed.” See id. § 71.02(b).
Section 31.03 provides that a person commits the offense of theft if the person
unlawfully appropriates property with intent to deprive the owner of the property.
Id. § 31.03(a). Section 31.09 provides for aggregation of multiple thefts:
When amounts are obtained in violation of this chapter pursuant to one scheme or continuing course of conduct, whether from the same or several sources, the conduct may be considered as one offense and the amounts aggregated in determining the grade of the offense.
Id. § 31.09. If, as here, the aggregate value of stolen property is between $150,000
and $300,000, the theft offense is a second-degree felony. See id. § 31.03(e)(6)(A).
The Legislature’s main purpose in adding section 31.09 was “to allow for
aggregation of each theft into a single offense to increase the punishment range for
a thief who commits various thefts ‘pursuant to one scheme or continuous course of
conduct.’” State v. Weaver, 982 S.W.2d 892, 895 (Tex. Crim. App. 1998) (quotation
omitted).
Scant caselaw addresses the question presented here: whether aggregate theft
is theft for purposes of the engaging statute. After the parties submitted their
appellate briefs in this case, however, a separate panel of this Court addressed this
issue.
8 In Yonko v. State, a jury convicted Yonko of engaging in organized criminal
activity based on the predicate offense of aggregate theft. 2024 WL 4594131, at *1,
3. On appeal, Yonko argued that “aggregate theft” is not specifically enumerated as
a predicate offense in the engaging statute. Id. at *8. The State responded that theft
is an enumerated predicate offense, and aggregate theft is not distinct from theft for
purposes of the engaging statute. Id.
Yonko relied on precedent from the Court of Criminal Appeals holding that
the aggregate theft statute “adequately creates a separate offense and defines conduct
for purposes of jurisdiction, punishment and period of limitation from prosecution.”
Id. at *9 (quoting Graves v. State, 795 S.W.2d 185, 187 (Tex. Crim. App. 1990)).
But this Court rejected the contention that this holding resolved whether aggregate
theft was a separate offense for all purposes. Id. at *10–11. The holding was limited
to certain purposes and did not address whether aggregate theft is a separate offense
for purposes of the engaging statute. Id. at *10.
Moreover, this Court concluded that principles of statutory construction did
not support Yonko’s interpretation of the engaging statute. First, section 31.09
“references [Chapter 31 concerning theft] as a whole in explaining aggregation,”
thereby “inextricably linking” section 31.09 to the other theft provisions in Chapter
31. Id. Additionally, section 31.09 does not contain a separate actus reus or mens rea
9 apart from section 31.03 defining theft. Id. Thus, section 31.09 is “interrelated” to
“Chapter 31 as a whole.” Id.
Furthermore, the Court noted that the engaging statute provides that a person
commits an offense if the person commits or conspires to commit “one or more of
the following: . . . theft.” Id. at *11 (quoting TEX. PENAL CODE § 71.02(a)(1)). A
“plain reading” of this language “supports a conclusion that thefts may be aggregated
to enhance the grade of the offense.” Id. Thus, if a person commits “one or more”
thefts while engaging in organized criminal activity, then “Chapter 31’s aggregation
provision should be read in connection with the engaging statute to permit stacking
of those theft totals to reach a higher dollar amount, as would be permissible if the
defendant committed multiple thefts but did not engage in organized criminal
activity in the commission of those thefts.” Id. The Court concluded that aggregate
theft is not a separate offense from theft for purposes of the engaging statute. Id.
Yonko is the only published decision directly addressing Pennygraph’s
appellate issue. See id. at *10 (“[N]o reported cases have addressed this issue.”).
Like Yonko, Pennygraph relies on decisions from the Court of Criminal Appeals to
support his argument that aggregate theft is a separate offense from theft. In each of
these cases, however, the court held that aggregate theft is “one offense” separate
from the underlying thefts committed pursuant to one scheme or continuing course
10 of conduct for the limited purposes of severance, jurisdiction, punishment,
limitations, and venue.
For example, in Wages v. State, the defendant was charged with one felony
offense of aggregate theft based on three underlying misdemeanor theft offenses
committed in one scheme and continuous course of conduct. 573 S.W.2d 804, 805–
06 (Tex. Crim. App. 1978). The defendant argued on appeal that his counsel was
ineffective for failing to request a severance of the three underlying theft offenses.
Id. at 806. The Court of Criminal Appeals described section 31.09 as an “aggregation
principle” that “operates to create One offense”—aggregate theft—when multiple
thefts occur pursuant to a single scheme and continuing course of conduct, and it
concluded that a court cannot sever one offense. Id. at 806.
In Graves v. State, the trial court dismissed an indictment for felony aggregate
theft based on eighteen underlying misdemeanor thefts by relying on the shorter
limitations period for misdemeanor offenses rather than the longer period for felony
offenses. 795 S.W.2d at 186. The court of appeals agreed with the State that the
longer statute of limitations for felony offenses applied, and it reversed the dismissal
of the indictment. Id. The Court of Criminal Appeals affirmed, holding that although
aggregated theft consists of multiple incidents of theft, “Section 31.09 adequately
creates a separate offense” from the underlying thefts “and defines conduct for
purposes of jurisdiction, punishment and period of limitation from prosecution.” Id.
11 at 187. Be that as it may, Yonko addressed Graves and found it inapposite. See 2024
WL 4594131, at *9–10.
In State v. Weaver, the defendant was indicted in Harris County for aggregate
theft consisting of thirty-two underlying thefts committed both in Harris County and
in other counties. 982 S.W.2d at 893. The trial court severed the non-Harris County
thefts from the indictment, effectively reducing the offense from a third-degree
felony to a state jail felony, and the State appealed. Id. The Court of Criminal
Appeals reiterated its prior holdings that “Section 31.09 creates one offense for
purposes of severance, jurisdiction, punishment and limitations.” Id. at 894. The
court then extended the holding to venue disputes: “Therefore, we decide Section
31.09 creates one offense for purposes of venue.” Id.
Finally, in Kent v. State, the Court of Criminal Appeals reaffirmed these prior
decisions in the context of a jury-unanimity challenge. See 483 S.W.3d 557 (Tex.
Crim. App. 2016). After surveying prior cases, the court reiterated that “Section
31.09 creates one offense for purposes of severance, jurisdiction, punishment,
limitations, and venue.” Id. at 561–62. Then, the court took the next step in Kent and
held that jurors did not need to be instructed about each theft underlying an aggregate
theft offense or unanimously agree about the commission of each underlying theft.
Id. at 562.
12 None of the cases relied upon by Pennygraph address the issue presented here:
whether aggregate theft is theft within the meaning of the engaging statute. Instead,
these cases stand for the proposition that aggregate theft is considered as one offense
separate from the underlying thefts for limited purposes, including severance,
jurisdiction, punishment, limitations, and venue. See, e.g., id. at 561–62; see also
TEX. PENAL CODE § 31.09 (providing that amounts obtained by multiple thefts
pursuant to one scheme or continuing course of conduct “may be considered as one
offense”) (emphasis added). Thus, the cases Pennygraph relies on do not support his
argument that aggregate theft is a separate offense from theft for purposes of the
engaging statute.
The aggregate theft statute expressly states that when amounts are obtained
by multiple thefts pursuant to one scheme or continuing course of conduct, “the
conduct may be considered as one offense and the amounts aggregated in
determining the grade of the offense.” TEX. PENAL CODE § 31.09 (emphasis added).
The statute does not state that aggregate theft is a separate offense from theft, only
that the conduct may be considered as one offense. See id.; Hughitt, 583 S.W.3d at
626–27 (stating that courts interpret statutes to effectuate legislative intent, apply
plain meaning of legislative text, and determine plain meaning of text by considering
literal text and construing words according to rules of grammar and usage).
13 Moreover, under Yonko, section 31.09 references and applies to the theft
offenses in Chapter 31 as a whole, and section 31.09 does not contain a separate
actus reus or mens rea apart from the other theft offenses in Chapter 31. See Yonko,
2024 WL 4594131, at *10; TEX. PENAL CODE § 1.07(a)(22) (defining “element of
offense” as forbidden conduct, required culpability, required result, and negation of
any exception to offense); Kent, 483 S.W.3d at 561 (“[T]he text of Section 31.09
shows a legislative intent to treat the ‘scheme or continuing course of conduct’ as
the culpable criminal behavior rather than each individual theft used to prove the
scheme or course of conduct.”); King v. State, 17 S.W.3d 7, 13 (Tex. App.—Houston
[14th Dist.] 2000, pet. ref’d) (noting that “essential elements” of aggregate theft are
found in section 31.03(a)). Section 31.09 merely allows amounts obtained by
multiple thefts pursuant to one scheme or continuing course of conduct to be
aggregated and considered as one offense in determining the grade of the offense.
See TEX. PENAL CODE § 31.09. Thus, a plain reading of section 31.09 leads to the
conclusion that aggregate theft “may be considered as one offense” for some but not
all purposes, but aggregate theft is not a separate offense from theft. See Hughitt,
583 S.W.3d at 626–27.
As stated in Yonko, the engaging statute applies when a person commits or
conspires to commit “one or more” predicate offenses, including “theft.” 2024 WL
4594131, at *11 (quoting TEX. PENAL CODE § 71.02(a)(1)). The Legislature’s
14 authorization to base an engaging offense on multiple predicate offenses, including
multiple thefts, “supports a conclusion that thefts may be aggregated to enhance the
grade of the offense.” Id.; see Hughitt, 583 S.W.3d at 627.
Pennygraph’s counsel has very capably and professionally presented his
arguments, but they run afoul of Yonko. For the reasons stated, we hold that
aggregate theft is “theft” within the meaning of the engaging statute, and therefore
aggregate theft is a proper predicate offense of engaging in organized criminal
activity. Because Pennygraph does not present any other sufficiency arguments for
our consideration, we conclude that the evidence was legally sufficient to support
the conviction.
Conclusion
We affirm the trial court’s judgment of conviction.
David Gunn Justice
Panel consists of Chief Justice Adams and Justices Rivas-Molloy and Gunn.
Do not publish. TEX. R. APP. P. 47.2(b).