Opinion issued October 29, 2024
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00062-CR ——————————— PAUL YONKO, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 263rd District Court Harris County, Texas Trial Court Case No. 1771842
OPINION
A jury convicted appellant Paul Yonko of engaging in organized criminal
activity, and after appellant pleaded true to one enhancement paragraph, assessed his
punishment at twenty-eight years’ confinement. On appeal, appellant raises four
issues relating to: (1) his absence from the jury charge conference, (2) ineffective assistance of counsel, (3) the court’s failure to include one of his requested lesser-
included offense instructions in the charge, and (4) whether aggregate theft is a
predicate offense for purposes of the engaging-in-organized-criminal-activity
statute. We affirm.
Background
One January afternoon, appellant approached the complainant, James Fox, in
a Kroger parking lot. Appellant was with two women, whom he identified as his
daughters. Appellant pointed out a dent in Fox’s vehicle and claimed he worked at
an auto body repair shop and he could fix the dent for $150. Fox thought this was a
good price and agreed to let appellant come to his home and perform the repairs.
When appellant arrived at Fox’s home, he identified himself as Michael
Gordon. Appellant had another man with him, who he introduced as Steve Hunter.
Fox later learned from appellant that Hunter’s real name was Sonny John. Over the
course of several days, appellant and John worked on the dent. Even though they
were unable to fully repair the dent, appellant asked Fox for $750. Fox paid
appellant’s price, and in Fox’s mind, the two struck up a friendship.
Fox has been diagnosed with Asperger’s syndrome, which puts him on the
autism spectrum. Fox was valedictorian of his high school and obtained bachelor’s
and master’s degrees in mathematics from Rice University. Fox worked for several
oil companies as a computer programmer before retiring. While Asperger’s does not
2 affect Fox’s motor skills or his abilities to care for himself or learn, it does impact
his ability to relate to other people. Fox does not have many close friends, does not
enjoy social interactions, and describes himself as very introverted. Fox categorizes
his ability to discern what other people are feeling or thinking as “very poor” as a
result of Asperger’s. Before meeting appellant, Fox was “extremely trusting.” At the
time of trial, Fox was 68 years old.
Fox and appellant began communicating regularly.1 Initially, appellant asked
Fox for $5,000 to help start an auto body repair shop. Fox gave appellant the money.
Next, appellant told Fox his car had been repossessed and asked for $2,000 to buy
another vehicle. Fox gave appellant the money, but according to appellant, he was
scammed. Appellant claimed he paid the money for the vehicle but did not receive
the vehicle. As a result, appellant asked Fox for $3,000 for another car. Fox again
gave appellant the money, though he never saw the vehicle appellant supposedly
purchased. According to Fox, he ultimately gave appellant money for three different
vehicles. Appellant promised to pay Fox back. Appellant told Fox he had a job and
that his brother “Larry” might help pay Fox back.
Sometime in January 2022, appellant asked Fox for money to bail his wife
Monica out of jail. Fox posted her $500 bail. Next, appellant claimed he needed help
1 Between January and early April 2022, appellant and Fox called each other approximately 500 times. 3 with his rent and utilities. Fox gave him $5,000. Fox did not typically keep that kind
of cash, so he had to withdraw money from his investment account. Before meeting
appellant, Fox did not regularly withdraw money from his investment account.
Appellant also asked Fox to purchase gift cards for him. Appellant gave
specific instructions as to the types of gift cards he wanted—Visa Vanilla gift cards,
typically in $500 amounts. Fox would purchase most of these gift cards from CVS
Pharmacy and give them directly to appellant. Appellant introduced other
individuals to Fox: his “daughter,” Savannah Bimbo; his wife, Monica Bimbo; and
another woman named “Tina,” who was later identified as Sue Ellen Stanley.
Monica was typically with appellant when Fox gave him the money he requested.
Ultimately, from January to March 2022, the total withdrawn from Fox’s
investment account and spent for gift cards for appellant and his associates was
$113,284.92.2 Appellant promised Fox that he would pay him back. Appellant told
Fox that he and his brother were the beneficiaries of a $2.4 million life insurance
policy that they would split equally. Appellant promised Fox half of his half of the
proceeds, or $600,000. Appellant also provided Fox with written promises to pay,
using his alias, Michael Gordon, and a video recording of himself promising to pay
Fox back. Appellant never fulfilled those promises.
2 Another figure presented to the jury was $119,621.67, representing the total amount of expenditures from Fox’s Bank of America account. 4 Appellant also asked Fox to help his brother “Larry,” who he claimed was in
jail in Dallas. Fox gave him $20,000 for Larry but expected appellant to pay him
back.
In March 2022, appellant asked Fox to take him to a dealership to buy a
vehicle. Though Fox expected appellant to pick a used vehicle, appellant insisted on
a new truck. Fox bought a 2022 GMC Sierra for appellant and financed the full
purchase price of roughly $93,000. Though the truck was in Fox’s name, he never
drove it. Appellant had the keys and paperwork for the truck. Appellant promised
Fox he would make the monthly payments. Within a week, Fox received a phone
call from an auto storage facility, letting him know the truck was there and it had
been wrecked.3
Shortly thereafter, Sonny John came to Fox’s apartment and demanded that
Fox buy him a truck, too. Again, Fox took out a loan for the purchase price of
approximately $53,000. Fox felt threatened by John and purchased the truck because
he was afraid of him. However, John promised Fox he would make the truck
payments. Like appellant, John never made any payments on the vehicle.4
3 Though there was no insurance on the truck, Fox did purchase Gap insurance, which covered some, but not all, of the loss. Ultimately, Fox’s “regular insurance” paid off the loan, but the loan still impacted Fox’s credit score and appeared on his credit report. 4 Eventually, police called Fox (the record does not indicate why the police called Fox) and advised him that they had the truck he bought for John. When Fox got the 5 After the purchases of both trucks, appellant called Fox, letting him know he
was in jail and needed money for the commissary and to make phone calls. Fox gave
him the money as requested. Appellant also needed money for bail, claiming that he
could not travel to New York to pick up his life insurance proceeds unless he was
out of jail. Fox gave Savannah a total of $61,000, supposedly for appellant’s bail.
Fox gave her the money in $5,000 increments over a two-week period. “Tina,” or
Sue Ellen Stanley, typically accompanied Savannah to pick up the money. Appellant
spoke with Fox almost every day while he was in jail and continued to assure Fox
he would pay back all the money Fox had given to him and his family.
Eventually, the Harris County District Attorney’s Office began to suspect
appellant was involved in an ongoing crime and asked Detective Iovescu with the
Houston Police Department’s Swindle Squad to begin listening to appellant’s jail
calls. From those calls, Detective Iovescu identified Fox as appellant’s target.
Detective Iovescu met with Fox on April 7, 2022 and, from that meeting, he
identified Sue Ellen Stanley, Savannah Bimbo, Monica Bimbo, and Sonny John as
additional suspects.
In May 2022, a grand jury indicted appellant for engaging in organized
criminal activity as part of a criminal combination with John, Monica, Savannah,
vehicle back, it had some damage and needed cleaning. He was later able to sell the vehicle at a loss. 6 and Stanley. The indictment alleged that from January 8, 2022 to April 7, 2022, the
combination committed theft in an aggregate amount of at least $150,000 but less
than $300,000 from Fox. At trial, the jury heard testimony from Fox and various
investigators before finding appellant guilty as charged in the indictment.
At sentencing, appellant pleaded “true” to an enhancement paragraph
concerning a prior felony conviction for theft from an elderly person, and the jury
assessed his punishment at twenty-eight years’ confinement and a $10,000 fine. The
trial court signed a judgment in accordance with the jury’s verdict on January 23,
2023, and this appeal followed.
Appellant’s Absence from Jury Charge Conference
In his first issue, appellant argues that the trial court committed reversible
error by conducting a jury charge conference without appellant present. Appellant
contends that this error violated his rights under the Sixth Amendment, the Texas
Constitution, and article 33.03 of the Texas Code of Criminal Procedure, the last of
which requires that a defendant be personally present at trial in all prosecutions for
felonies. See TEX. CODE CRIM. PROC. art. 33.03. The record reveals the following
concerning the proceedings:
(Open court, defendant not present, no jury)
THE COURT: Okay. So we are discussing . . . the proposed Court’s jury charge . . . . [Defense counsel] has indicated that he’s requesting two-lesser included offenses. And I will let him state for the record what those are and then we can discuss it.
7 [DEFENSE COUNSEL]: And, Your Honor, we reserve the right to make additional arguments at the formal charge conference.
THE COURT: This is the formal charge conference.
[DEFENSE COUNSEL]: Okay. We are requesting lesser-included offense of engaging in organized criminal activity --
THE COURT: And I’m sorry to interrupt you. Do you want your client out here for this?
[DEFENSE COUNSEL]: That probably wouldn’t be a bad idea. And I’ve got his clothes.
THE COURT: Okay.
(Pause)
THE COURT: Okay. So your client is not here, Mr. [Defense Counsel], so why don’t we just go forward with the charge conference. Of course he’s not. We’re not going to wait. He doesn’t necessarily need to be here for that.
The trial court then proceeded with the charge conference. The record reflects
that by the time the jury was brought back in the courtroom at the conclusion of the
conference, appellant was present.5
Appellant first contends that his counsel’s comment that appellant’s presence
“probably wouldn’t be a bad idea” was sufficient to preserve error for our review. In
the alternative, appellant argues that even if the error was not preserved, it is the type
5 The record does not indicate when appellant returned. 8 of harmful error that may be raised for the first time on appeal. The State argues that
appellant failed to preserve error, but regardless, any error was not harmful.
A. Standard of Review and Applicable Law
The Confrontation Clause of the Sixth Amendment of the United States
Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him . . . .” U.S. CONST. AMEND.
VI. The Confrontation Clause protects a defendant’s right to physically face those
witnesses who testify against him as well as his right to conduct cross-examination.
Scott v. State, 555 S.W.3d 116, 125 (Tex. App.—Houston [1st Dist.] 2018, pet.
ref’d). The Court of Criminal Appeals has held that “within the scope of the right of
confrontation is the absolute requirement that a criminal defendant who is threatened
with loss of liberty be physically present at all phases of proceedings against him,
absent a waiver of that right through defendant’s own conduct.” Miller v. State, 692
S.W.2d 88, 90 (Tex. Crim. App. 1985) (internal citations omitted) (quoting Baltierra
v. State, 586 S.W.2d 553, 556 (Tex. Crim. App. 1979)); see also TEX. CODE CRIM.
PROC. art. 33.03 (addressing defendant’s right to be present).
Notwithstanding the foregoing, a trial court may proceed with trial to its
conclusion when the defendant “voluntarily absents himself after pleading to the
indictment or information, or after the jury has been selected when trial is before a
jury . . . .” TEX. CODE CRIM. PROC. art. 33.03; see also Taylor v. U.S., 414 U.S. 17,
9 18–19 (1973) (per curiam). A defendant may waive his Sixth Amendment right to
be physically present at trial to confront the witnesses against him if, after the jury
has been selected with him in attendance, he voluntarily absents himself from the
proceedings. See Miller, 692 S.W.2d at 90; see also Taylor, 414 U.S. at 18–20. We
review a trial court’s ruling that the defendant has voluntarily absented himself from
trial under an abuse of discretion standard. See Moore v. State, 670 S.W.2d 259, 261
(Tex. Crim. App. 1984). The validity of a trial court’s decision that the defendant’s
absence was voluntary will generally have to be determined in hindsight. Id. “Absent
any evidence from the defendant to refute the trial court’s determination that his
absence was voluntary, we will not disturb the trial court’s finding.” Id.
Further, to preserve a complaint for appellate review, a defendant must make
his complaint to the trial court by timely request, objection, or motion that states the
grounds for the ruling sought with sufficient specificity to make the trial court aware
of the complaint, unless the specific grounds were apparent from the context. See
TEX. R. APP. P. 33.1(a). Confrontation Clause claims and a defendant’s rights under
article 33.03 are subject to this general preservation requirement. See Davis v. State,
313 S.W.3d 317, 347 (Tex. Crim. App. 2010) (Confrontation Clause claims);
Routier v. State, 112 S.W.3d 554, 575 (Tex. Crim. App. 2003) (rights under article
33.03).
10 B. Analysis
It is undisputed here that appellant was present during voir dire, the
presentation of evidence in the guilt/innocence phase, and the recitation of the jury’s
verdict after deliberation. Appellant was also present during the punishment
proceedings. The record notes appellant’s absence from the charge conference but
does not suggest a reason for his absence. When the trial court indicated that it
intended to proceed with the charge conference without appellant present,
appellant’s counsel did not object on any grounds, including the Confrontation
Clause or article 33.03 of the Code of Criminal Procedure, nor did he argue that
appellant’s absence was possibly involuntary or ask for a continuance. Again, the
record confirms that appellant was present in the courtroom by the time the jury
returned following the charge conference. When appellant returned, he did not
express any concern to the trial court about his absence during the charge conference.
We hold that appellant has waived the issue because he failed to preserve this
complaint for appellate review. See TEX. R. APP. P. 33.1(a); Davis, 313 S.W.3d at
347; Routier, 112 S.W.3d at 575.
Even if appellant had preserved his complaint for our review, we conclude
that the trial court did not abuse its discretion in continuing with the charge
conference. Appellant does not contest that he was present at both phases of trial as
required by article 33.03. See TEX. CODE CRIM. PROC. art. 33.03 (stating court may
11 continue a trial to conclusion if defendant was present for jury selection and entering
a plea to indictment). Appellant was only absent for a brief amount of time during
the charge conference. See Moore, 670 S.W.2d at 261 (noting that when there is
evidence that defendant’s absence is voluntary, trial court may continue trial in
defendant’s absence).
And even if the trial court erred in conducting the charge conference in
appellant’s absence, it was not reversible error. Where the presence of a defendant
does not bear a “reasonably substantial relationship to the opportunity to defend,”
no harm results from his absence from the proceedings against him. Adanandus v.
State, 866 S.W.2d 210, 219 (Tex. Crim. App. 1993) (quoting Cooper v. State, 631
S.W.2d 508, 512 (Tex. Crim. App. 1982), overruled on other grounds by Bell v.
State, 994 S.W.2d 173 (Tex. Crim. App. 1999)). To assess harm, we must address
both harm under the rules of appellate procedure and whether the hearing bore a
substantial relationship to appellant’s opportunity to defend himself. TEX. R. APP. P.
44.2(a); Adanandus, 806 S.W.2d at 220.
The charge conference necessarily involved the discussion of questions of
law. As the Court of Criminal Appeals has observed, “[i]t is difficult to imagine a
trial fraught with complex legal problems when there will not be occasions where
counsel and the court will confer on questions of law at the bench or in chambers
outside the presence of the defendant.” Mares v. State, 571 S.W.2d 303, 307 (Tex.
12 Crim. App. 1978). Appellant’s arguments that he could have offered his opinions or
input at the charge conference regarding his entitlement to the requested lesser-
included offense instructions is without merit. Even if appellant had been present,
the legal issues for the trial court to decide would not have changed, and we cannot
conclude that the hearing bore a reasonably substantial relationship to appellant’s
opportunity to defend. Id. (holding defendant’s presence at charge conference did
not bear reasonably substantial relationship to opportunity to defend); see also
Salomechavez v. State, No. 01-19-00782-CR, 2020 WL 6065530, at *6–7 (Tex.
App.—Houston [1st Dist.] Oct. 15, 2020, pet. ref’d) (mem. op., not designated for
publication) (holding same); TEX. R. APP. P. 44.2(a). Because there is no evidence
that harm occurred, even assuming error in continuing with the charge conference
in appellant’s absence, the error does not constitute reversible error. See Routier, 112
S.W.3d at 577–79.
We overrule appellant’s first issue.
Ineffective Assistance of Counsel
In his second issue, appellant argues that counsel’s failure to object to his
absence from the jury charge conference constituted ineffective assistance of
counsel. We disagree.
13 A. Standard of Review and Applicable Law
The Sixth Amendments of the United States Constitution and the Texas
Constitution guarantee a criminal defendant the right to reasonably effective
assistance of counsel. U.S. CONST. amend. VI; TEX. CONST. art. 1, § 10; see Lopez v.
State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). The right to effective assistance
of counsel requires objectively reasonable representation, not errorless performance.
Lopez, 343 S.W.3d at 142 (citing Strickland v. Washington, 466 U.S. 668, 686
(1984); Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006)).
To establish that trial counsel provided ineffective assistance, an appellant
bears the burden to demonstrate by a preponderance of the evidence that (1)
counsel’s performance was deficient, and (2) the deficient performance prejudiced
the defense. Strickland, 466 U.S. at 687; Lopez, 343 S.W.3d at 142. An appellant
must establish both prongs before an appellate court will find counsel’s
representation to be ineffective. Lopez, 343 S.W.3d at 142 (citing Strickland, 466
U.S. at 687); see Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009)
(“An appellant’s failure to satisfy one prong of the Strickland test negates a court’s
need to consider the other prong.”).
To satisfy the first prong, an appellant must show that his trial counsel’s
performance fell below an objective standard of reasonableness under the prevailing
professional norms. Strickland, 466 U.S. at 687–88; Lopez, 343 S.W.3d at 142.
14 Under the second prong, an appellant must demonstrate prejudice or “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694; see Lopez, 343 S.W.3d at
142. A reasonable probability is one sufficient to undermine confidence in the
outcome. Lopez, 343 S.W.3d at 142.
For an appellate court to find that counsel was ineffective, “counsel’s
deficiency must be affirmatively demonstrated in the trial record; the court must not
engage in retrospective speculation.” Id. “It is not sufficient that appellant show,
with the benefit of hindsight, that his counsel’s actions or omissions during trial were
merely of questionable competence.” Id. at 142–43 (quoting Mata v. State, 226
S.W.3d 425, 430 (Tex. Crim. App. 2007)). Furthermore, a claim of ineffective
assistance of counsel also requires proof of prejudice. Bone v. State, 77 S.W.3d 828,
837 (Tex. Crim. App. 2002).
In most cases, the record on direct appeal is undeveloped regarding the motive
behind counsel’s actions and thus inadequate to prove a claim of ineffective
assistance.6 See Menefield v. State, 363 S.W.3d 591, 592–93 (Tex. Crim. App. 2012);
James v. State, 506 S.W.3d 560, 569 (Tex. App.—Houston [1st Dist.] 2016, no pet.);
see also Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (“A
6 Claims of ineffective assistance of counsel rejected on direct appeal “due to lack of adequate information may be reconsidered on an application for a writ of habeas corpus.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). 15 substantial risk of failure accompanies an appellant’s claim of ineffective assistance
of counsel on direct appeal.”). The Court of Criminal Appeals has repeatedly stated
that trial counsel “should ordinarily be afforded an opportunity to explain his actions
before being denounced as ineffective.” Menefield, 363 S.W.3d at 593 (quoting
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)). When trial
counsel is not provided an opportunity to explain his actions, we will not find that
counsel’s performance was deficient unless the challenged conduct was “so
outrageous that no competent attorney would have engaged in it.” Id. (quoting
Goodspeed, 187 S.W.3d at 392).
B. Analysis
We have already determined any error in conducting the charge conference
outside of appellant’s presence did not rise to the level of reversible error. When the
trial court would not have erred in overruling an objection, there can be no
ineffective assistance for counsel’s failure to assert it. Vaughn v. State, 931 S.W.2d
564, 566 (Tex. Crim. App. 1996); see also Harper v. State, No. 05-95-00953-CR,
1997 WL 446246, at *6 (Tex. App.—Dallas June 30, 1997, no pet.) (mem. op., not
designated for publication) (holding no ineffective assistance of counsel for failing
to object to proceedings conducted outside of appellant’s presence after determining
no error in removing appellant from courtroom, citing Vaughn). Thus, counsel’s
failure to object to the trial court’s decision to proceed with the charge conference
16 despite appellant’s absence did not rise to the level of ineffective assistance. See
Strickland, 466 U.S. at 687–88. We overrule appellant’s second issue.
Lesser-Included Offense Instruction
In his third issue, appellant contends that the trial court erred in failing to
instruct the jury on the lesser-included offense of engaging in organized criminal
activity with an underlying offense of aggregate theft of at least $30,000 but less
than $150,000. Appellant argues that based on the testimony at trial, the jury could
have determined that the two vehicles Fox purchased were not stolen and excluded
those amounts from the aggregate theft total.7
We review a trial court’s refusal to submit a lesser-included offense
instruction to the jury for an abuse of discretion. Chavez v. State, 666 S.W.3d 772,
776 (Tex. Crim. App. 2023) (citing Threadgill v. State, 146 S.W.3d 654, 666 (Tex.
Crim. App. 2004)). We employ a two-prong test to determine whether a defendant
is entitled to an instruction on a lesser-included offense. Id. (citing Rousseau v. State,
855 S.W.2d 666, 672 (Tex. Crim. App. 1993)). We first compare the statutory
elements of the alleged lesser offense with the elements of the greater offense and
any descriptive averments in the indictment. Id. (citing Safian v. State, 543 S.W.3d
7 As the trial court pointed out, appellant needed to exclude both trucks to get below the $150,000 threshold. If the jury only excluded the truck purchased for Sonny John, the total theft amount still exceeded $150,000. 17 216, 220 (Tex. Crim. App. 2018)). If the lesser offense is included within the proof
necessary to establish the offense charged, the first step is satisfied. Id. (citing Safian,
543 S.W.3d at 220; TEX. CODE CRIM. PROC. art. 37.09(1)).
Next, we evaluate the evidence to determine whether there is some evidence
that would permit a rational jury to acquit the defendant of the greater, charged
offense, while convicting him of the lesser-included offense. Id. (citing Guzman v.
State, 188 S.W.3d 185, 188–89 (Tex. Crim. App. 2006)). Though we evaluate all
evidence admitted at trial, the evidence must be directly connected to the lesser-
included offense and present it as a valid, rational alternative to the greater offense.
Id. at 776–77 (citing Goad v. State, 354 S.W.3d 443, 448, 446 (Tex. Crim. App.
2011)).
One way an offense can constitute a lesser-included offense of another is for
it to differ from the charged offense in degree of harm only. See TEX. CODE CRIM.
PROC. art. 37.09; see also Reuter v. State, No. 01-04-00936-CR, 2006 WL 348146,
at *13 (Tex. App.—Houston [1st Dist.] Feb. 16, 2006, no pet.) (mem. op., not
designated for publication). Here, appellant was charged with engaging in organized
criminal activity with a predicate offense of aggregate theft of more than $150,000
18 but less than $300,000—a second-degree felony.8 TEX. PENAL CODE §§
31.03(e)(6)(A); 31.09. Theft is a third-degree felony offense if the aggregate value
of the property is greater than $30,000 but less than $150,000. Id. § 31.03(e)(5).
Appellant sought an instruction on engaging in organized criminal activity with a
predicate offense of theft in the third degree. The offense requested differs from
second-degree theft only in the degree of harm and was thus capable of being
included as a lesser-included offense. See TEX. CODE CRIM. PROC. art. 37.09; see
also Reuter, 2006 WL at *13 (discussing second-degree theft as lesser-included
offense of first-degree theft under prior version of statute).
Next, we consider whether there was some evidence showing that appellant is
guilty only of the lesser-included offense. Appellant never admitted to theft totaling
$30,000 but less than $150,000, and there is no other evidence in the record to
support such a finding. On appeal, appellant essentially argues that the jury could
have believed the State’s evidence demonstrating thefts of the cash and gift cards
but disbelieved the evidence demonstrating that the trucks were stolen. However, it
“is not enough that the jury may disbelieve crucial evidence pertaining to the greater
offense, but rather, there must be some evidence directly germane to the lesser-
8 While an aggregate theft of at least $150,000 but less than $300,000 is a second- degree felony, engaging in organized criminal activity with a predicate offense of aggregate theft of $150,000 to $300,000 is elevated to a first-degree felony. Compare TEX. PENAL CODE §§ 31.03(e)(6)(A) and 31.09 with § 71.02(b). 19 included offense for the finder of fact to consider before an instruction on a lesser-
included offense is warranted.” Sweed v. State, 351 S.W.3d 63, 68 (Tex. Crim. App.
2011) (quoting Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997), cert.
denied, 523 U.S. 1079 (1998)). “Meeting this threshold requires more than mere
speculation—it requires affirmative evidence that both raises the lesser-included
offense and rebuts or negates an element of the greater offense.” Cavazos v. State,
382 S.W.3d 377, 385 (Tex. Crim. App. 2012).
Here, the fact that the jury might have disbelieved that the vehicle purchases
in the amounts of approximately $93,000 and $53,000 constituted thefts is not
affirmative evidence that the total thefts amounted to greater than $30,000 but less
than $150,000. See Rousseau, 855 S.W.2d at 675 (holding that appellant was not
entitled to charge on lesser-included offense when no evidence was presented that if
appellant was guilty, he was only guilty of lesser-included offense); see also
Benefield v. State, 389 S.W.3d 564, 576 (Tex. App.—Houston [14th Dist.] 2012,
pet. ref’d) (rejecting similar argument in holding that no evidence in record
permitted jury to rationally find that if appellant was guilty, she was guilty only of
lesser-included offense of misdemeanor misapplication of fiduciary property valued
at less than $1,500); Amberson v. State, No. 02-17-00298-CR, 2018 WL 5993281,
at *2 (Tex. App.—Fort Worth Nov. 15, 2018, pet. ref’d) (mem. op., not designated
for publication) (holding that fact that jury might have disbelieved or believed
20 certain testimony about cost of repairs did not entitle defendant to lesser-included
offense instruction of criminal mischief of $750 or more but less than $2,500 where
no affirmative evidence would allow factfinder to find that if appellant was guilty,
he was only guilty of lesser-included offense).
We overrule appellant’s third issue.
Aggregate Theft as a Predicate Offense
In his fourth issue, appellant argues that the evidence is legally insufficient to
support his conviction for engaging in organized criminal activity, namely,
aggregate theft of more than $150,000 but less than $300,000, because “aggregate
theft” is not one of the specifically enumerated predicate offenses for purposes of
the engaging-in-organized-criminal-activity statute. The State responds that theft is
one of the listed predicate offenses, and aggregate theft is not distinct from theft for
purposes of the engaging statute.
Although appellant presents this point as one involving the sufficiency of the
evidence, appellant’s argument is actually that the indictment is insufficient to allege
engaging in organized criminal activity under section 71.02 of the Texas Penal Code
because it fails to properly allege one of the enumerated predicate offenses.
Appellant does not claim that the evidence is insufficient to prove either the
existence of a criminal combination that planned to engage in criminal activities or
21 the commission of aggregate theft of greater than $150,000 but less than $300,000.9
See Walker v. State, 594 S.W.3d 330, 336 (Tex. Crim. App. 2020) (noting State’s
burden in engaging-in-organized-criminal-activity case to prove both existence of
criminal combination that planned to engage in criminal activity and actual
commission of at least one listed predicate offense).
A. Waiver
As a threshold matter, we note that appellant failed to present to the trial court
a motion to quash the indictment or otherwise object to any alleged defect, error, or
irregularity of form or substance in the indictment before the date that the trial on
the merits commenced. Thus, he waived his right to complain about the purported
defect in the indictment on appeal. See TEX. CODE CRIM. PROC. art. 1.14(b); Jenkins
v. State, 592 S.W.3d 894, 902 (Tex. Crim. App. 2018); Duron v. State, 915 S.W.2d
920, 921–22 (Tex. App.—Houston [1st Dist.] 1995) (defendant waived complaint
on appeal that indictment “did not allege an offense” because defendant did not
object before trial began), aff’d, 956 S.W.2d 547 (Tex. Crim. App. 1997); see also
Williams v. State, 356 S.W.3d 508, 519 (Tex. App.—Texarkana 2011, pet. ref’d)
9 To the contrary, in arguing that we should reform the judgment to reflect a conviction for aggregate theft of greater than $150,000 but less than $300,000, appellant argues, in great detail, that the evidence was legally sufficient to support such a conviction. 22 (defendant did not preserve argument that indictment did not allege essential
elements of offense, where defendant failed to object before trial).
Based on the foregoing, we hold that appellant did not preserve for appellate
review his complaint about the indictment raised in his fourth issue.
B. Aggregate Theft as a Separate Offense Under Section 31.09
Even if appellant did preserve his arguments concerning the indictment, we
nevertheless reject his contentions. The State charged appellant with engaging in
organized criminal activity based upon the commission of the predicate offense of
“aggregate theft.” Section 71.02 (herein, the engaging statute) outlines numerous
predicate offenses, including: murder, capital murder, arson, aggravated robbery,
robbery, burglary, and theft, among others. See TEX. PENAL CODE § 71.02(a).
Appellant argues that “aggregate theft” is a wholly separate offense from theft,
relying on Graves v. State, 795 S.W.2d 185 (Tex. Crim. App. 1990). We agree with
the State that appellant’s reliance on Graves is misplaced, as explained below.
Graves concerned a statute of limitation issue. The defendant had been
indicted for felony theft in accordance with the aggregate theft statute, section 31.09
of the Texas Penal Code. Id. at 186. That provision, titled “Aggregation of Amounts
Involved in Theft,” states as follows: “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
23 amounts aggregated in determining the grade of the offense.” TEX. PENAL CODE
§ 31.09.
In Graves, the underlying offenses involved eighteen separate counts of
misdemeanor theft, aggregated into one count of felony theft. 795 S.W.2d at 186.
However, the felony theft indictment was returned two years and two days after the
last theft occurred, in violation of the two-year statute of limitation applicable to
misdemeanor theft. Id. As a result, the trial court dismissed the indictment. Id. On
appeal to this court, the State argued that the appropriate statute of limitation was
the five-year statute applicable to felony offenses. We agreed and reversed the trial
court’s dismissal of the indictment. Id.; see also State v. Graves, 775 S.W.2d 32, 33
(Tex. App.—Houston [1st Dist.] 1989).
The Court of Criminal Appeals granted the defendant’s petition for
discretionary review specifically to consider whether this Court erred “in holding
that Section 31.09 creates a felony offense for purposes of the statute of limitation”
and then affirmed this Court’s decision. Graves, 795 S.W.2d at 186.
Appellant focuses on the following language from the Graves decision:
Although theft under Section 31.09 consists of two or more incidents of theft, the statute makes them one offense. Brown v. State, 640 S.W.2d 275, 278 (Tex. Crim. App. 1982). This notion is buttressed by the fact that there is no vehicle by which a defendant can compel a severance of the underlying offenses. Wages v. State, 573 S.W.2d 804, 806 (Tex. Crim. App. 1978). Accordingly, we hold that Section 31.09 adequately creates a separate offense and defines conduct for purposes of jurisdiction, punishment and period of limitation from prosecution. 24 Id. at 187. Appellant prefers to ignore the qualifying language in the final sentence
of the above language: “for purposes of jurisdiction, punishment and period of
limitation from prosecution.” See id. Appellant essentially asks us to note the
language “hold[ing] that Section 31.09 adequately creates a separate offense” and
read no further. That we cannot do.
The focus of the Graves decision was the effect of the aggregation provision
on the applicable statute of limitation, specifically, which statute of limitation should
apply when value amounts are aggregated to raise the offense to a more serious one.
The Graves court did not address the issue now raised by appellant.
As the State points out, Section 31.09 is one of numerous sections included in
Chapter 7 of the Penal Code, titled “Theft.” Further, Section 31.09 references the
chapter as a whole in explaining aggregation, “inextricably linking” the two
provisions, as the State argues. See TEX. PENAL CODE § 31.09 (“When amounts are
obtained in violation of this chapter . . .”) (emphasis added). One cannot identify the
necessary actus reus or mens rea under section 31.09 without turning to section 31.03
defining theft. See TEX. PENAL CODE § 1.07(a)(22) (defining “element of offense”
as the forbidden conduct, required culpability, required result, or negation of any
exception to the offense); see also 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)). Additionally, as the State notes, Section 31.09 25 applies to other theft offenses not at issue here, including Theft of Service, Organized
Retail Theft, Cargo Theft, Theft of Petroleum Product, and Mail Theft, among
others. See TEX. PENAL CODE §§ 31.04, 31.16, 31.18, 31.19, 31.20. All of this
demonstrates the interrelated nature of Section 31.09 to Chapter 31 as a whole.
Though no reported cases have addressed this issue, at least one unreported
case from the Amarillo Court of Appeals supports the State’s construction of the
applicable statutes. In In re Posey, No. 07-10-00467-CR, 2010 WL 4904489 (Tex.
App.—Amarillo Dec. 2, 2010, orig. proceeding) (mem. op., not designated for
publication), the relator challenged his conviction for engaging in organized criminal
activity, with a predicate offense of theft of property with an aggregate value of over
$100,000 but less than $200,000. 2010 WL 4904489, at *1. Relator argued that the
engaging statute contained no language authorizing aggregation of amounts for
determining the punishment grade of the underlying offense of theft and that when
multiple acts of theft were alleged, the offense classification should be determined
by the theft with the greatest property value. Id. at *2. Rejecting relator’s “strained
reading” of the engaging statute, the court focused on the statute’s plain meaning
and concluded that: (1) the grade of theft may be determined by aggregation, (2)
theft is an underlying offense for purposes of the engaging statute, and (3) the grade
of the offense of engaging in organized criminal activity is determined by the grade
of theft committed subject to the application of the engaging statute. Id. (citing TEX.
26 PENAL CODE § 71.02(b)). The court also noted that “a person may be charged with
engaging in organized criminal activity and the underlying offense and punished for
both” in the same proceeding, further demonstrating the fallacy of relator’s
argument. Id. at n.10 (citing Garza v. State, 213 S.W.3d 338, 352 (Tex. Crim. App.
2007) (explaining TEX. PENAL CODE § 71.03(3)).
We agree with the Posey court that a plain reading of the engaging statute
supports a conclusion that thefts may be aggregated to enhance the grade of the
offense. Considering the engaging statute’s language, that provision states that “[a]
person commits an offense if . . . the person commits or conspires to commit one or
more of the following: . . . theft.” It follows that 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.
Ultimately, we conclude that section 31.09’s aggregate theft provision is not
a separate offense from “theft” for purposes of the engaging statute. We therefore
reject appellant’s challenge to the indictment (couched as a legal sufficiency
27 argument) for that reason.10 As appellant does not present any other sufficiency
arguments for our consideration, we overrule his fourth issue.
Conclusion
Having overruled each of appellant’s issues, we affirm. We deny any pending
motions as moot.
Amparo Monique Guerra Justice
Panel consists of Chief Justice Adams and Justices Goodman and Guerra.
Publish. TEX. R. APP. P. 47.2(b).
10 Because we reject appellant’s legal sufficiency argument, we do not reach his sub- argument urging us to reform the judgment to reflect a conviction for aggregate theft of $150,000 to $300,000 and to remand the case for a new punishment hearing. 28